P. v. Saa

Filed 10/24/07 P. v. Saa CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. J. Thompson Hanks, Judge. Affirmed.

David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant Alberto Saa.

Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Jerome Eads.

Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant Billy Juarez.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Robin Derman, Deputy Attorney General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant Jerome Eads appeals from his conviction of the first degree murder (Pen. Code,^[1] 187, subd. (a)) of Mario Gutierrez, Sr. Eads contends (1) the trial court violated his rights to due process of law and to a jury trial by refusing his request for a separate jury; (2) or, in the alternative, his trial counsel provided ineffective assistance by failing to move for severance; and (3) the trial court erred in failing to instruct the jury that it could consider voluntary intoxication in determining whether he deliberated and premeditated or harbored express malice aforethought at the time of the killing.

Defendant Alberto Saa appeals from his conviction of the second degree murder ( 187, subd. (a)) of Gutierrez. Saa contends (1) his conviction was not supported by sufficient evidence because the killing was not a natural and probable consequence of the conspiracy among the defendants to assault Gutierrez; (2) the trial court erred in failing to instruct the jury that the killing was not a natural and probable consequence of the conspiracy if the killing was not in furtherance of the conspiracy; (3) or, in the alternative, his trial counsel provided ineffective assistance in failing to request such an instruction; and (4) the trial court erred in refusing his request for an instruction on involuntary manslaughter as a lesser included offense.

Defendant Billy Juarez also appeals from his conviction of the second degree murder ( 187, subd. (a)) of Gutierrez. He contends (1) the trial court erred in admitting prejudicial evidence that he was a Satan worshipper; (2) or, in the alternative, his trial counsel provided ineffective assistance by failing to object to such evidence; (3) the jury erred in finding him guilty based on the natural and probable consequences doctrine; and (4) the trial court erred in refusing to instruct the jury on involuntary manslaughter as a lesser included offense.

In addition, each defendant joins in the arguments of the other defendants to the extent such arguments accrue to their benefit. We find no prejudicial error, and we affirm.

II. FACTS AND PROCEDURAL BACKGROUND

A. Events Preceding the Murder

In late November 2001, Gutierrez got into a fight with Kathy Double, then his girlfriend, and knocked her across the kitchen. She asked Eads to come over, but when Eads arrived, Gutierrez told him Gutierrez did not want him around. Gutierrez and Eads had a brief fight. Double broke up with Gutierrez and a month or so later, she became Eadss girlfriend.^[2] Gutierrez was very jealous of Eads.

In January 2002, Double and Eads went to the home of Gutierrezs sister, not knowing Gutierrez would be there. Gutierrez sucker punched Eads, and Gutierrez and his son, Martin Gutierrez (Martin), jumped on Eads, knocking him to the ground. Gutierrez and Martin hit and kicked Eads, and it took four people to pull Gutierrez and Martin off Eads. After the fight, Eadss mouth and nose were bleeding and his eye was swollen. Eads said to Gutierrez in a loud voice something like, Youre dead, motherfucker, and Im going to kick your ass. Eads and Double broke up their relationship that day.

Double later told an investigator that Eads told Double she should have stopped the fight by running over Gutierrez with their truck. However, at trial, Double did not recall making that statement to the investigator.

After the fight, Eads went to a convenience store with bruises on his face. He told the clerk, who knew Gutierrez, that Gutierrez and his son had beaten him and that Everybody in that house are [sic] going to be sorry.

Eads told his roommate, Jennifer DeGoede, that Gutierrez had beaten him up, and he wanted to retaliate. Eads was upset and agitated.

Eads also told another person that Eads had been in a fight with Gutierrez. Eads looked like he had recently been beaten up. Eads called Gutierrez by racial epithets and said he was going to beat Gutierrez and kill him.

B. Events the Night of the Murder

In February 2002, Eads was living with his then girlfriend, Jennifer DeGoede, in a converted garage on property owned by Steven Syndell. Saa and his 14-year-old girlfriend, April P., lived in a trailer on the same property; Syndell and his family lived in another trailer on the same property.

In the evening of February 28, 2002, Eads, DeGoede, Saa, Juarez, April P. and Syndell were at Eadss home using methamphetamine. Saa and Eads had been long-time friends. April P. heard Juarez and Eads talking, and she asked them where they were going. They said they were going to give Gutierrez an old-fashioned ass-whopping. Eads asked Juarez to do the ass-whopping, and Juarez said he would do so. Saa agreed to drive Eads and Juarez.

April P. saw a shotgun and asked what it was for. Saa said it was [f]or protection. April P. saw someone load the gun, but she did not remember who had done so. She had earlier told an investigator that Juarez had loaded the shotgun.

DeGoede also heard Eads and Juarez discuss having Gutierrez beaten up. She told Eads not to do it because it would cause more problems. Eads told her he just wanted done to Gutierrez what Gutierrez had done to him. Saa and Juarez seemed to be egging Eads on.

Sometime prior to February 28, at Eadss request, Syndell had cut off part of the barrel of the shotgun, and Syndell had been storing the gun for Eads. Eads had asked for the shotgun that day, and Syndell had given it to him. Sometime after 2:30 a.m. on March 1, Eads, Juarez, and Saa left Eadss house in Juarezs car with Saa driving.

Gutierrez lived in a travel trailer about 10 minutes away from Eadss home. His son, Mario Gutierrez, Jr., (Mario) lived in a small house on the same property. At about 3:00 a.m. on March 1, Mario was awakened by the sound of a shotgun. His uncle ran in and said that something had happened to Marios father. Mario ran to his fathers trailer and saw his father lying on the ground next to the door. Gutierrez was dead.

Gutierrez was killed by a shotgun wound that entered the left breast area and exited through the back. Based on that facts that a piece of shotgun wadding fell from Gutierrezs back when his body was rolled over and that his shirt had powder burns, an investigator concluded that Gutierrez had been shot at close range, probably within 12 inches. The pathologist also stated his opinion that the fatal shot had been fired at close range.

Sheriffs deputies saw blood spatter around Gutierrezs bed and found a shotgun slug in the wood trim above the bed. Based on the location of the slug and the position of Gutierrezs entry and exit wounds, an investigator concluded Gutierrez had been shot while he was in bed.

Investigators found two billy clubs at the scene; one was on the ground near Gutierrezs body, and the other was underneath his mattress. Gutierrezs sons testified that their father kept a stick in his trailer for protection, but the billy club found on the ground did not belong to their father. The lock on Gutierrezs trailer door was broken, and the door could not be locked.

C. Postmurder Events

Eads, Juarez, and Saa returned to Eadss home on March 1 ten to twenty minutes after they had left. April P. said that Juarez was smiling and had a demonlike look on his face, but Eads and Saa looked scared and nervous and were quiet.

Sometime after 4:00 a.m. on March 1, Eads knocked on Saas door, and Saa went outside to talk to him. When Saa came back in, he told April P. they had to leave; April P. thought he looked kind of paranoid. Saa and April P. stayed with a friend in Nuevo for about six days. While they were there, April P. asked Saa about the shotgun, and he told her it had been buried somewhere. They went from Nuevo to stay at Saas mothers house in Florida.

Eads woke up DeGoede at 5:00 a.m. and told her they were going away. Before they left, Eads received a telephone call, after which he was stressed and in a hurry. Eads and DeGoede drove to a motel in Sun City and then went to a beer garden in Temecula. While they were there, DeGoede heard someone say that Gutierrez had been shot. She asked Eads, The one you just wanted beat up? Eads replied, [H]ow dare you . . . think Im capable of that. She asked him if he had anything to do with it, and he replied, You dont fucking question me.

In a telephone call, Syndell told DeGoede that the police wanted to talk to Eads. Eads said he did not want to talk to anyone until he had spoken to his lawyer. Eads telephoned Syndell back and told him to [s]hut the fuck up. The next day, Eads and DeGoede set out driving to the State of Washington. They discussed going to Canada, but DeGoede told Eads she could not go there because of a prior DUI conviction.

D. Verdicts and Sentences

The jury found Eads guilty of first degree murder ( 187, subd. (a)) and of being a felon in possession of a firearm ( 12021, subd. (a)(1)) and found that a principal was armed with a firearm during the commission of the murder ( 12022, subd. (a)(1)). In a bifurcated proceeding, the trial court found that Eads had served a prior prison term ( 667.5, subd. (b)), and had been convicted of a strike offense ( 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)) and a prior serious felony ( 667, subd. (a)). The trial court sentenced Eads to serve 57 years to life in prison.

The jury found Juarez guilty of second degree murder ( 187, subd. (a)) and found that a principal was armed with a firearm during the commission of the murder ( 12022, subd. (a)(1)). The trial court sentenced Juarez to serve 16 years to life in prison.

The jury found Saa guilty of second degree murder ( 187, subd. (a)) and found that a principal was armed with a firearm during the commission of the murder ( 12022, subd. (a)(1)). The trial court found that Saa had served a prior prison term. ( 667.5, subd. (b).) The trial court sentenced Saa to serve 17 years to life in prison.

Additional facts are set forth in the discussion of the issues to which they pertain.

III. DISCUSSION

A. Denial of Separate Jury or Severance of Trial as to Eads

Eads contends the trial court violated his rights to due process of law and to a jury trial by refusing his request for a separate jury, or, if this court finds that error was waived, that his trial counsel provided ineffective assistance by failing to move for severance.

1. Background

Prior to trial, the prosecutor sought a ruling that various out-of-court statements by the defendants would be admissible. Those statements included the following: On March 16, 2002, Saa asked his mother if he could go to stay with her in Florida because he had been involved in a murder. He told her that Eads had paid Juarez to beat up Gutierrez, and on the night of the murder, Eads had asked Saa to drive Eads and Juarez to Gutierrezs motorhome. Saa agreed, and when they arrived, Juarez got out of the car and walked up to the motorhome. Saa told his mother that Eads had the shotgun with him for protection. Eads and Juarez opened the door to the motorhome, and Saa heard a shotgun blast. He told his mother that Juarez admitted killing Gutierrez and told the others that if they told anyone, he would kill their families. Saa drove them to a remote location where they got rid of the shotgun. Saa later gave a similar account of the murder to an investigator. Saa also told investigators where the gun had been buried.

Eadss trial counsel stated he did not object to admission of Saas statements, and he would be willing to waive Aranda-Bruton^[3]as to those statements. Eadss counsel further argued that exclusion of the statements would violate Eadss rights under the Sixth and Fourteenth Amendments.

The trial court ruled that Saas statement to investigators that the shotgun had been buried would be admitted, but the court would exclude the statements that implicated Eads and Juarez. The trial court stated that its ruling would preclude the need for separate juries.

During trial, outside the presence of the jury, Juarezs counsel reported that April P. had told a defense investigator that Saa had made admissions to her similar to those he had made to his mother and another investigator. Saas trial counsel expressed concern about the newly revealed statement, and he argued that he had not filed an Aranda motion because of the trial courts prior ruling and the agreement among all the parties that none of Saas statements would be introduced except his statement concerning the disposal of the shotgun and its location. The court ruled that the portion of Saas statement to April P. in which he admitted his involvement in the murder was inadmissible.

After the prosecution rested, Eadss trial counsel moved for a mistrial on the ground that the trial courts denial of his request for a separate jury precluded him from presenting Saas statements to his mother and to the investigator that Juarez shot Gutierrez, thus impairing Eadss defense. The trial court denied the motion for mistrial.

2. Standard of Review

We review the trial courts ruling on a motion for severance or separate juries for abuse of discretion. (People v. Hardy (1992) 2 Cal.4th 86, 167; People v. Harris (1989) 47 Cal.3d 1047, 1073, 1075.) In conducting our review, we look at the facts as they appear[ed] at the time of the hearing on the motion rather than on what subsequently develop[ed]. (People v. Turner (1984) 37 Cal.3d 302, 312, overruled on another ground in People v. Anderson (1987) 43 Cal.3d 1104, 1149-1150.) However, what transpires at trial determines the prejudicial effect of an erroneous ruling on a motion for separate trials. (People v. Turner, supra, at p. 312)

3. Forfeiture

The People argue that Eads has forfeited the issue because he never moved for severance in the trial court on the grounds he now raises in this appeal. (People v. Greenberger (1997) 58 Cal.App.4th 298, 349.) Although the record contains some mention of severance, the record does not indicate that Eads ever specifically moved to sever on the basis of Aranda/Bruton.^[4] After Eadss counsel stated he was willing to waive Aranda/Bruton to allow the jury to hear the entirety of Saas statement, the trial court noted that the redaction of Saas statement would preclude the need for severance or multiple juries. However, the first time Eadss counsel discussed on the record having a separate trial for Eads was in the motion for mistrial after the prosecutors presentation of evidence.

Nonetheless, despite the Peoples waiver argument, we will exercise our discretion to address the issue on the merits. (See People v. Norman (2003) 109 Cal.App.4th 221, 229-230.)

4. Analysis

When two or more defendants are jointly charged with any public offense, . . . they must be tried jointly, unless the court order[s] separate trials. ( 1098.) However, the trial court has discretion to grant severance in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony. (People v. Avila (2006) 38 Cal.4th 491, 574-575.) The California Supreme Court has also approved the use of dual juries in multidefendant cases as a means of avoiding the necessity for severance while facilitating the legislative preference for joint trials. ( 1098; People v. Harris, supra, 47 Cal.3d at p. 1075, disagreed with on another ground in People v. Wheeler (1992) 4 Cal.4th 284, 299, fn. 10.)

When a defendant moves for severance based on a claim that a codefendant might provide exonerating testimony at a separate trial, the trial court should consider the following factors: (1) Does the movant desire the testimony of the codefendant; (2) will the testimony be exculpatory; (3) how significant is the testimony; (4) is the court satisfied that the testimony itself is bona fide; (5) on the basis of the showing at the time of the motion, how strong is the likelihood that, if the motion were granted, the codefendant will testify; and (6) what is the effect of the granting in terms of judicial administration and economy? (People v. Isenor (1971) 17 Cal.App.3d 324, 332 (Isenor).)

With respect to the first Isenor factor, Eads clearly desired the admission of Saas statements. With respect to the second and third Isenor factors, Eads contends Saas statements would have been exculpatory and significant because they showed that Juarez, not Eads, had been the shooter.

With respect to the fourth Isenor factor, Eads argues that if he had been tried before a separate jury, Saas statements to his mother, the investigator, and April P. would have been admissible as statements against Saas penal interest under Evidence Code section 1230:^[5] Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, . . . so far subjected him to the risk of . . . criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true. (Evid. Code,  1230.)

However, Evidence Code section 1230 does not permit the admission of any statement or portion of a statement not itself specifically disserving to the interests of the declarant[,] and does not apply to collateral assertions within declarations against penal interest. (People v. Duarte (2000) 24 Cal.4th 603, 612.) Thus, a hearsay statement which is in part inculpatory and in part exculpatory (e.g., one which admits some complicity but places the major responsibility on others) does not meet the test of trustworthiness and is thus inadmissible. [Citation.] (Ibid.)

Here, Saas statement was inculpatory to the extent he admitted being the getaway driver. However, the remainder of his statement was largely aimed at minimizing his own role and shifting the major blame for the killing to Eads and Juarez. His statements exculpating himself from the actual shooting therefore were not so far against his penal interest that he would not have made them unless they were true. (Evid. Code,  1230; People v. Shipe (1975) 49 Cal.App.3d 343, 353 [codefendants statements exculpating themselves of first degree murder while admitting lesser offenses were not sufficiently reliable for admissibility as admissions against interest].) Saas statements discussing the roles of Eads and Juarez would not qualify as declarations against penal interest and would therefore not be admissible under any exception to the hearsay rule. We need not consider the remaining Isenor factors because of our conclusion that Saas statements would not have been admissible in a separate trial or before a separate jury.

Based on our conclusion that the evidence Eads sought to admit in a separate trial would not have been admissible, we find no abuse of discretion in the trial courts denial of severance.

B. Ineffective Assistance of Counsel

Eads argues, in the alternative to his argument that the trial court abused its discretion in failing to grant severance, that his trial counsel provided ineffective assistance by failing to move formally for severance so that Saas statements could be admitted.

A defendant claiming ineffective assistance of counsel must establish both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates (People v. Pope (1979) 23 Cal.3d 412, 425, overruled on another ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10) and there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 217-218; see also Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Holt (1997) 15 Cal.4th 619, 703.)

Here, as discussed above, even if the motion for severance had been made and granted, the only portions of Saas statements that would have been admissible in a separate trial were those portions in which Saa admitted being the getaway driver because only those portions qualified for admissibility as declarations against interest. We perceive no reasonable likelihood that such evidence would have led to any different outcome in a separate trial for defendant Eads. (People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.) Thus, we conclude Eads has failed to establish ineffective assistance of counsel.

C. Instructions on Voluntary Intoxication

Eads contends the trial court erred in failing to instruct the jury sua sponte that it could consider voluntary intoxication in determining whether Eads deliberated and premeditated or harbored express malice aforethought at the time of the killing.

1. Background

The evidence showed that all three defendants had ingested methamphetamine throughout the evening before the murder, and they were high or loaded when the murder was committed. In addition, the evidence showed that Eads had consumed whiskey and Juarez had consumed marijuana.

The trial court instructed the jury on voluntary intoxication with CALJIC Nos. 4.21,^[6]4.22,^[7]and 4.21.1.^[8] The trial court further instructed the jury under CALJIC No. 3.31 that the specific mental state required for conviction of murder was included in the definition of the crime set forth elsewhere in the instructions. CALJIC 8.20 instructed that to find defendant guilty of first degree murder, the jury had to find that the killing was willful, deliberate, and premeditated and defined each of those terms. None of the defendants requested any further instructions on voluntary intoxication.

2. Analysis

Under section 22, evidence of voluntary intoxication is inadmissible to negate a defendants capacity to form any mental state, but is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought. ( 22, subd. (b).) In People v. Saille (1991) 54 Cal.3d 1103, 1114 (Saille), the defendant contended the instructions were inadequate because they did not inform the jury that voluntary intoxication could negate express malice as well as specific intent. The court rejected that argument, concluding that under section 188, as amended in 1981, express malice and an intent unlawfully to kill are one and the same. (Saille, supra, at p. 1114, fn. omitted.)

The court further held that the trial court was not required to instruct sua sponte that the jury should consider the defendants voluntary intoxication in determining whether the defendant had premeditated and deliberated. (Saille, supra, 54 Cal.3d at pp. 1117-1120.) The court explained that because the defense of diminished capacity had been abolished, [i]ntoxication is now relevant only to the extent that it bears on the question of whether the defendant actually had the requisite specific mental state. Thus it is now more like . . . pinpoint instructions . . . to which a defendant is entitled upon request. Such instructions relate particular facts to a legal issue in the case or pinpoint the crux of a defendants case . . . . They are required to be given upon request when there is evidence supportive of the theory, but they are not required to be given sua sponte. (Id. at p. 1119; see also id. at p. 1120 [stating that an instruction relating evidence of intoxication to premeditation and deliberation did not involve a general principle of law for purposes of a sua sponte duty to instruct].)

Similarly, in People v. Hughes (2002) 27 Cal.4th 287, 342, the court rejected an argument that the jury instructions were misleading because the trial court failed to instruct sua sponte that voluntary intoxication might negate premeditation and deliberation. The court explained, CALJIC No. 4.21 informed the jury that defendants intoxication should be considered in determining whether defendant possessed the specific intent and/or mental state required for . . . murder. In addition, the jury was instructed pursuant to CALJIC No. 3.31.5 that regarding the murder count, there must exist a certain mental state in the mind of the perpetrator and that [t]he mental state required is included in the definition of the crime charged. (Italics added.) That definition, provided to the jury through CALJIC No. 8.20, in turn advised that for the jury to find defendant guilty of first degree murder, it must find that he acted with willful premeditation and deliberation. The latter instruction further provided that willful, as used in this instruction, means intentional and that premeditation and deliberation must have been formed upon pre-existing reflection and not upon a sudden heat of passion or other condition precluding the idea of deliberation. We agree with the People that by relating intoxication to mental state, a reasonable jury would have understood deliberation and premeditation to be mental states for which it should consider the evidence of intoxication. [Citation.] (Ibid.)

Saille and Hughes are dispositive of Eadss argument Those cases establish that the trial court had no sua sponte duty to instruct the jury to consider voluntary intoxication in determining whether defendants had premeditated or deliberated. (Saille, supra, 54 Cal.3d at pp. 1119-1120; Hughes, supra, 27 Cal.4th at p. 342.) Defendants failed to request such an instruction in this case. We therefore conclude the trial court did not err in its instructions to the jury on voluntary intoxication.

D. Killing as a Natural and Probable Consequence of the Conspiracy Among the Defendants

Saa and Juarez both contend their convictions were not supported by sufficient evidence because the killing was not a natural and probable consequence of the conspiracy among the defendants. Saa and Juarez argue that although the defendants had agreed to assault Gutierrez, one of the defendants instead decided to shoot Gutierrez, and the shooting was not a natural and probable consequence of the conspiracy to commit an assault.

1. Background

Gutierrez was killed with a single shot to the chest, apparently while he was lying in bed. There were no signs of a struggle, and he had no injuries other than the fatal shot. Although a billy club that did not belong to Gutierrez was found at the scene, no evidence specifically connected it to defendants.

In closing argument, the prosecutor argued two theories to the jury as the bases for defendants guilt of murder. First, the prosecutor argued that Eads, Juarez, and Saa had formed a conspiracy to assault Gutierrez with a deadly weapon (a billy club) or with force likely to cause great bodily injury, and that homicide was a natural and probable consequence of the conspiracy to commit a felonious assault. The prosecutor argued that Saa and Juarez were guilty of murder because they each aided and abetted the conspiracy between the other defendants, and the homicide was the natural and probable consequence of the conspiracy.

Second, the prosecutor argued that all three defendants intended to murder Gutierrez because of Eadss prior history with him and Eadss threats to kill him. The prosecutor argued that the three defendants had gone to Gutierrezs home at 3:00 a.m., had found him sleeping in his bed, and one of them had shot him at close range.

The trial court instructed the jury on first and second degree murder (CALJIC Nos. 8.20, 8.30) and further instructed the jury on aiding and abetting principles under CALJIC No. 3.02. The trial court identified the target crime as conspiracy to commit an assault by means likely to inflict great bodily injury or with a deadly weapon. The instruction as read to the jury stated: One who aids and abets another in the commission of a crime is not only guilty of that crime but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime originally aided and abetted. [] In order to find the defendant guilty of the crime of murder as charged in Count 1, you must be satisfied beyond a reasonable doubt that, one, the crime of conspiracy to commit an assault by means likely to inflict great bodily injury or with a deadly weapon, to wit, a club; two, that the defendant aided and abetted that crime; three, that a coprincipal in that crime committed the crime of conspiracy to commit an assault by means likely to produce great bodily injury or with a deadly weapon to wit, a club; and four, the crime of murder was a natural and probable consequence of the commission of the crime of conspiracy to . . . commit an assault by means likely to inflict great bodily injury or with a deadly weapon, to wit, a club. . . ..

2. Standard of Review

When a defendant challenges the sufficiency of the evidence, this court reviews the trial record in the light most favorable to the judgment to determine whether it contains substantial evidence from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Johnson (1980) 26 Cal.3d 557, 578.) Substantial evidence is evidence that is reasonable, credible, and of solid value. (People v. Johnson, supra, at p. 578.) Circumstantial evidence alone may be sufficient to prove a defendant guilty beyond a reasonable doubt. (People v. Bean (1988) 46 Cal.3d 919, 932-933.)

3. Analysis

A conspirator is liable for the unintended acts by coconspirators if such acts are . . . the reasonable and natural consequence of the object of the conspiracy, even if the act was not intended as part of the agreed-upon objective, and even if the conspirator did not know of the act and was not present when it was committed. (People v. Hardy, supra, 2 Cal.4th at p. 188.) Whether one criminal act is a natural and probable consequence of another criminal act is generally a question of fact for the trier of fact. (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.) The test is objective: [T]he issue does not turn on the defendants subjective state of mind, but depends upon whether, under all of the circumstances presented, a reasonable person in the defendants position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant. [Citations.] (Ibid.; see also People v. Mendoza (1998) 18 Cal.4th 1114, 1133.) In other words, the issue depends upon whether, under all of the circumstances, a reasonable person in the defendants position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act the defendant aided and abetted. (People v. Woods (1992) 8 Cal.App.4th 1570, 1587 (Woods).)

In People v. Prettyman (1996) 14 Cal.4th 248 (Prettyman), the court addressed the natural and probable consequences doctrine. The court stated that if the jury concluded that one defendant had encouraged codefendant Prettyman to commit an assault on the victim, but had no reason to believe Prettyman would use a deadly weapon (a steel pipe) to commit the assault, then the jury could not properly find that the murder was a natural and probable consequence of the assault encouraged by the first defendant. (Id. at p. 267.) The court continued, If, on the other hand, the jury had concluded that [the defendant] encouraged Prettyman to assault [the victim] with the steel pipe, or by means of force likely to produce great bodily injury, then it could appropriately find that Prettymans murder of [the victim] was a natural and probable consequence of that assault. (Ibid.)

In Prettyman, the court listed a number of cases that involved situations in which a defendant assisted or encouraged a confederate to commit an assault with a deadly weapon or with potentially deadly force, and the confederate not only assaulted but also murdered the victim. (Prettyman, supra, 14 Cal.4th at p. 262.) The court noted that the courts in those cases generally had no difficulty in upholding a murder conviction, reasoning that the jury could reasonably conclude that the killing of the victim death [sic] was a natural and probable consequence of the assault that the defendant aided and abetted. (Ibid.)

To convict Juarez and Saa of second degree murder under the natural and probable consequences theory, the question for the jury, therefore, was whether it was reasonably foreseeable that the shotgun would be used to commit an offense other than the agreed-upon assault. (See People v. Gonzales (2001) 87 Cal.App.4th 1, 10.) The target crime was identified as a conspiracy to commit assault on Gutierrez with a deadly weapon or with bodily injury.

In People v. Hoang (2006) 145 Cal.App.4th 264, 266-267, the court affirmed the defendants conviction of attempted premeditated murder based on the theory that the crime was a natural and probable consequence of the target crime of assault with a deadly weapon by a gang member. Similarly, in People v. Montes (1999) 74 Cal.App.4th 1050, 1056, the court concluded that murder was a natural and probable consequence of breach of the peace or simple assault by a gang member against a rival, even when the defendant was unaware that his fellow gang member was armed, because it was reasonably foreseeable the initial confrontation would quickly escalate to gunfire. (See also People v. Karapetyan (2006) 140 Cal.App.4th 1172, 1177-1178 [holding that the evidence warranted an instruction that murder was a natural and probable consequence of assault when a group of armed men challenged an unarmed victim, and one of the group stabbed the victim in the heart].)

Juarez argues that there was scant evidence to suggest he knew of the long feud between Eads and Gutierrez. He notes that most of the other people in Saas home the night before the killing had not known Juarez well before that night or had met him for the first time that night. Juarez further argues that no evidence showed that Eads had a habit of killing people or doing anything more than getting in fistfights. He argues that, viewed objectively, the natural and foreseeable crimes growing out of the target crime, the beating, would at most have included a death as a result of the beating. He argues that it was not foreseeable that one of the other defendants would run into the house with a gun and blast[] away at Gutierrez.

However, Juarezs and Saas guilt of second degree murder under the natural and probable consequences theory does not require that they knew a member of their group would fire the shotgun, but rather whether it was reasonably foreseeable the shotgun would be used to commit an offense other than the agreed upon assault. (See People v. Gonzales, supra, 87 Cal.App.4th at p. 10.) The evidence showed that all three defendants agreed Gutierrez would be severely beaten; all three defendants were aware they were taking along a loaded shotgun; and all three defendants drove together to Gutierrezs home in the middle of the night where one of them shot him in his bed. We conclude this evidence was amply sufficient to support Saas and Juarezs convictions of second degree murder.

Moreover, Juarezs and Saas contention that the evidence was insufficient to support their conviction on an aiding and abetting theory rests on the premise that the jury actually convicted them based on that theory. However, the jurys rejection of first degree murder as to Juarez and Saa means only that the jury had a reasonable doubt as to premeditation. The jury could easily have found that Juarez and Saa directly aided and abetted Eads in committing the murder, but could also have believed that Juarez and Saa had a less culpable mental state. Given the history of violence between Eads and Gutierrez, and Eadss prior threats toward Gutierrez, such a conclusion would have been reasonable. Coparticipants in a crime may have differing levels of culpability; and each persons guilt is based not only on the act committed, but also on his or her own mental state. (People v. McCoy (2001) 25 Cal.4th 1111, 1121.)

4. Jury Instruction

In a related argument, Saa contends the trial court erred by not instructing the jury that an act not in furtherance of a conspiracy cannot be the natural and probable consequence of the conspiracy. However, the jury was not required to find that the killing was committed in furtherance of the conspiracy, but only that it was the natural and probable consequence of the conspiracy to assault Gutierrez with a deadly weapon or with great bodily injury. (People v. Hardy, supra, 2 Cal.4th at p. 188.) Whether a criminal act is a natural and probable consequence of another criminal act is generally a factual question to be resolved by the jury in light of all the circumstances. (People v. Nguyen, supra, 21 Cal.App.4th at p. 531.) The jury was properly instructed on this doctrine.

5. Assistance of Counsel

In the alternative, Saa argues that his trial counsel provided ineffective assistance by failing to request an instruction that an act not in furtherance of the conspiracy could not be a natural and probable consequence of the conspiracy. As noted above, a defendant claiming ineffective assistance of counsel must show both a failure to act as a reasonably competent advocate and prejudice from counsels failings. (People v. Pope, supra, 23 Cal.3d at p. 426; People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.)

Saa cites no authority to support his argument that an act not in furtherance of a conspiracy cannot be the natural and probable consequence of the conspiracy. Therefore, Saa has failed to show that a reasonably competent attorney would have requested an instruction on that theory. We therefore find no ineffective assistance of counsel.

E. Refusal to Instruct the Jury on Involuntary Manslaughter as a Lesser Included Offense

Saa and Juarez both contend the trial court erred in refusing Saas request for an instruction on involuntary manslaughter as a lesser included offense. They claim the evidence supported a theory that they went to Gutierrezs motorhome to commit a simple assault or battery, and the jury could have found them guilty of involuntary manslaughter resulting from a conspiracy to commit a misdemeanor.

The trial court has a duty to instruct the jury sua sponte on lesser included offenses when substantial evidence rais[es] a question as to whether all of the elements of the charged offense are present. (People v. Lewis (2001) 25 Cal.4th 610, 645 [the trial court must instruct the jury on all applicable theories of involuntary manslaughter supported by the evidence].) Involuntary manslaughter is a lesser included offense of murder. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1145.) Involuntary manslaughter is a killing that occurs in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. ( 192, subd. (b).)

Here, contrary to defendants contention, no evidence supported the theory that defendants conspired to commit an unlawful act that was not a felony.^[9] Rather, the evidence demonstrated that defendants went to Gutierrezs motorhome to inflict serious bodily injury on him with their fists or a deadly weapon. First, the evidence showed that Eads had a violent history with Gutierrez and Eads had himself suffered serious injury in a previous fight with Gutierrez a few months earlier. Second, Eads had repeatedly made threats on Gutierrezs life. Defendants brought a loaded shotgun to the scene, and a billy club that did not belong to Gutierrez was found at the scene. Before defendants left for Gutierrezs house at 2:30 in the morning, they discussed giving him an old-fashioned ass-whopping, and Eads said he wanted done to [Gutierrez] what was done to him.

Saa and Juarez argue that simple assault is a misdemeanor, although aggravated assault is a felony (see 241, subd. (a), 245, subd. (a)(1)), and substantial evidence exists from which the jury could have concluded they were guilty of the lesser crime. (See People v. Baker (1999) 74 Cal.App.4th 243, 252 (Baker).) When assessing the sufficiency of the evidence to warrant an instruction, we do not evaluate the credibility of the witnesses, a task for the jury. [Citation.] (Ibid.)

In People v. Huynh (2002) 99 Cal.App.4th 662 (Huynh), the court stated that the target offense of planning to throw an object at a car and to fight could have been conspiracy to commit a simple assault or a battery, possible misdemeanors. (Id. at p. 681.) The court concluded that under Prettyman, supra, 14 Cal.4th 248, and Baker, supra, 74 Cal.App.4th 243, the trial court was required to instruct the jury on those target offenses because there was sufficient evidence under which the jury could have found the defendant guilty of a killing during the course of a conspiracy to commit a misdemeanor. (Huynh, supra, at pp. 680-681.) The evidence on which the court relied included the facts that the defendant testified that he did not have a gun and did not know that another participant had a gun. The defendant testified that his intent was to throw a beer bottle at the victims car to cause the car to pull over, and, if necessary, to fight with the car's occupants. (Id. at p. 682.) The defendant carried a part of a steering wheel locking device (Club) because he believed the victims had a Club, but he said he had no intent to do anything that might result in a death. (Ibid.) The defendant testified he had been surprised when another participant pulled out a gun and fired shots at the victims car. The court concluded that [b]ased on the conflicting testimony, the jury could have believed that [a coparticipant] fired the gun and that the natural and probable consequence of [the defendants] conduct a plan to throw a beer bottle at the car and fight the car's occupants was involuntary manslaughter, arising out of a plan to commit a simple assault or a battery. [Citations.] (Ibid.)

The court in Huynh continued, If the jury believed [the defendant] and believed he did not fire the gun or know of its intended use, the jury might have concluded that involuntary manslaughter, and not second degree murder, was the natural and probable consequence of [the defendants] intent or conspiracy to throw a bottle at a car and engage in a fight. [] It appears reasonably probable that the jury did believe Huynh's version of the events because the jury verdicts cannot be reconciled with a finding that Huynh fired the gunshots. [Citation.] The jury did not find Huynh guilty of attempted murder of [the victims]; of weapon enhancement allegations; or of being a felon in possession of a gun charges on which the jury would have rendered guilty verdicts had it believed that Huynh was the shooter. Thus, the jury convicted Huynh of murder through an aider and abettor theory of liability. An aider and abettor can be guilty of a lesser-included offense even if the actual perpetrator of the crime is guilty of a greater offense. [Citation.] (Huynh, supra, 99 Cal.App.4th at p. 683.)

In Baker, the defendants threatened revenge after a confrontation, left, and armed themselves with two knives, pieces of a steering wheel locking device, and wooden stakes. They returned to the victims home, where defendant Baker stabbed and killed the victim. (Baker, supra, 74 Cal.App.4th at p. 248) The court held that the evidence could have supported a conviction of simple assault, and therefore, the court had a duty to instruct sua sponte on that offense. (Id. at p. 251.)

In contrast, in Woods, supra, 8 Cal.App.4th 1570, the court held that because the defendant engaged in an assault armed with a gun, he could not be guilty of anything less than second degree murder, and consequently, there was no error in failing to instruct the jury on involuntary manslaughter. (Id. at pp. 1592-1593.)

This case is more like Woods than like Baker or Huynh,because here, the defendants armed themselves with a loaded shotgun before going to the victims house in the dead of night to engage in an assault, after one of them had made repeated threats to kill the victim or do him great bodily harm. We conclude there was no error in failing to instruct on involuntary manslaughter.

F. Admission of Evidence of Satan Worship

Juarez contends the trial court abused its discretion in admitting prejudicial evidence that Juarez was a Satan worshipper. Juarez further contends that if this court determines that the issue was forfeited by his trial counsels failure to raise an objection below, he received ineffective assistance of counsel.

1. Factual Background

At trial, Syndell testified he met Juarez for the first time on February 28, 2002, and at some point during the evening, Juarez and Syndell smoked marijuana together. The following exchange appears on the record:

Q. Did there come a point in time when you felt like you wanted to cut your time short in front of [Juarez]?

A. Yes.

Q. Why was that?

A. He was telling me how he was, you know, a devil worshipper. It kind of freaked me out. No objection was raised to this testimony.

During cross-examination, Eadss counsel asked Syndell if he was telling us under oath that Mr. Juarez told you that he was a devil worshiper or something to that effect, and Syndell responded, Oh, yes, and further testified that he had a clear recollection of that. On redirect, the prosecutor asked, And as you look back on it now, you have a clear recollection of that meeting with [Juarez] where he started talking about devil worshipping; is that correct? Syndell replied, Yes. He further testified that Juarezs comment had freaked [him] out. No objection was raised to any of this testimony.

In addition, an investigator testified that April P. had told him that when the defendants returned from Gutierrezs motorhome, Juarez called out her name. She turned around and looked at [Juarez], and as she described it . . . he had this like look of the devil in his eye . . . . No objection was raised to this testimony. At trial, however, April P. did not remember having made that statement when twice questioned about it by the prosecutor.

During closing, the prosecutor argued that April P. had testified that when Eads and Saa returned after the murder, they looked scared. [Juarez], no, he just looked normal. When they came back, there was no laughing. There was no look of the devil in his eye. Yeah, what Steve Syndell said about he had spoken to Saa and [Juarez] and [Juarez] was talking about his interest in devil worship, and it freaked Steve out. No objection was raised to this argument.

Finally, during his closing, Eadss attorney argued, [Juarez] made these comments to Steve Syndell about devil worshipping. I mean, so it had a big impression on Mr. Syndell. I mean, he was frightened out of his mind by this conversation. You remember it was a conversation where only Mr. Syndell and Mr. Juarez was [sic] present. And when he came back when the three of them came back, as another witness said, very close in terms of what Mr. Syndell said April P[.] that he had looked like a demon. Looked like a demon. No objection was raised to this argument.

2. Forfeiture

The People contend the argument that the trial court abused its discretion under Evidence Code section 352 in admitting the challenged evidence was forfeited because no objection was raised on that basis in the trial court. (People v. Harrison (2005) 35 Cal.4th 208, 230-231; Evid. Code,  353.) We agree, and we will therefore address the issue in the context of defendants alternative claim that he received ineffective assistance of counsel based on the failure to raise a timely objection.

3. Ineffective Assistance of Counsel

A defendant claiming ineffective assistance of counsel must prove that counsels performance was deficient under an objective standard of professional conduct and there is a reasonable probability that but for counsels errors the defendant would have achieved a more favorable result at trial. (Strickland v. Washington, supra, 466 U.S. 668, 687-688; People v. Holt, supra, 15 Cal.4th 619, 703.) Whether to object to inadmissible evidence is generally a matter of trial tactics, and we accord great deference to trial counsels tactical decisions. (People v. Lewis, supra,25 Cal.4th at p. 661.) Thus, counsels failure to object rarely provides a basis for finding incompetence of counsel. (Ibid., citing People v. Riel (2000) 22 Cal.4th 1153, 1185.) Moreover, [i]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. [Citation.] (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.)

Here, the record is silent as to why counsel failed to object to the challenged testimony, but nothing in the record suggests that counsel lacked a strategic purpose for failing to object. Courts have routinely rejected claims of ineffective assistance of counsel based on a failure to make an objection when counsel could reasonably have decided that an objection would merely draw more attention to the evidence or argument. (See, e.g., People v. Huggins (2006) 38 Cal.4th 175, 206 [finding no ineffective assistance of counsel when counsels failure to object could be explained as a tactical decision not to draw the jurors attention to comments by the prosecutor]; People v. Wharton (1991) 53 Cal.3d 522, 567 [finding no ineffective assistance of counsel when counsel failed to object to the prosecutors references to evidence outside the record because counsel might reasonably have chosen not to highlight the point with the jurors and make them wonder if such evidence really existed]; People v. Milner (1988) 45 Cal.3d 227, 245 [finding no ineffective assistance of counsel when counsel failed to object to the prosecutors statements during argument because counsel could reasonably have chosen to ignore the statements rather than draw attention to them by objecting].)

Moreover, both Syndell and April P. were extensively impeached, and defense counsel could reasonably have chosen to rely on their resulting lack of credibility rather than raise an objection. Syndell admitted using methamphetamine and marijuana the night of the murder, and he admitted he was a methamphetamine addict. Syndell admitted lying to the police when they were investigating the murder. He also admitted he had given a false name to the police on another occasion when he was being questioned about a warrant that had been issued on a hit-and-run traffic matter.

April P. gave a false name to the police when she was taken into custody to be available as a witness at trial. She had pleaded guilty in 2005 to a felony charge of being an accessory after the fact to murder in connection with an unrelated crime committed by another former boyfriend. She admitted she was addicted to methamphetamine in 2002, had used it on the night of the murder, was kind of out of it during that time period, was kind of in a fog that day, and in the past had become delusional from using methamphetamine.

We conclude that defense counsel could reasonably have made a tactical choice to ignore the evidence rather than further draw it to the jurors attention by raising an objection. (People v. Huggins, supra, 38 Cal.4th at p. 206; People v. Wharton, supra, 53 Cal.3d at p. 567.) We therefore reject Juarezs claim of ineffective assistance of counsel. (People v. Kraft, supra, 23 Cal.4th at pp. 1068-1069.)

G. Defendants Joinders in Each Others Arguments

Each defendant joins in the arguments of the other defendants to the extent they accrue to his benefit. Because we have rejected each argument on the merits as to the defendant who raised it, we find no benefit in extending the arguments to the other defendants.

IV. DISPOSITION

The judgments are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J.

We concur:

RICHLI

J.

MILLER

J.

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