P. v. Ordaz

 

 

 

 

 

 

 

 

 

 

 

 

 

Filed 11/19/13  P. v. Ordaz CA1/3

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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opinion has not been certified for publication or ordered published for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
THREE

 

 
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THE PEOPLE,             Plaintiff and Respondent, v. IVAN ORDAZ,             Defendant and Appellant.

A134054         (Alameda County       Super. Ct. No. C159612)

 

            In
separate gang-related incidents on the same day, defendant Ivan Ordaz shot and
killed 19-year-old Tomas Melero-Smith, and with others shot at and killed 22-year-old
Allan Mejia.  Ordaz admitted shooting at
Mejia and Melero-Smith because he thought they were rival gang members (he was
mistaken), but argued to a jury that the killings were href="http://www.mcmillanlaw.com/">voluntary manslaughter because he acted
in unreasonable self-defense.  The jury
found Ordaz guilty of second degree murder of Mejia, first degree murder of Melero-Smith,
and related offenses.  Enhancements and
special circumstances were found true.  He was sentenced to multiple prison terms
including life without the possibility of parole.

            Ordaz
contends that the judgment must be reversed in whole or in part because of
evidentiary and instructional errors, and prosecutorial
misconduct.  He also challenges
portions of his sentence.  We modify the
sentence but otherwise affirm the judgment.

 

 

 

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I.  BACKGROUND

A.  Prosecution Case

            (1) 
The Mejia Killing

                        (a)  Percipient Witness

            Javier Serrano testified that he was
riding with Geraldo Catalan in a car being driven by Mejia around 2:20 a.m. on September 1, 2007, when they got trapped in a sideshow at 90th
Avenue and Bancroft
Avenue.  Sideshows, as described by an Oakland police
officer at trial, are gatherings of 50 to 100 cars in a matter of minutes,
where drivers do stunts such as spinning doughnuts.  Serrano said they were hemmed in by other
cars and surrounded by members of the Border Brothers gang, who were screaming
the gang’s name.  Mejia and Serrano were
not gang members, but Catalan was a friend of someone named “Chops,” who had
problems with the Border Brothers.  A
Border Brother asked Catalan if he “still was kicking it”— associating—with
Chops.

            Serrano
said that he, Mejia, and Catalan had no weapons, made no threats, and were not disrespectful
to the group.  But when Catalan ignored
the question about Chops, the Border Brothers started to hit them through the
open windows of the car.  Mejia tried to
accelerate away, but had no room to maneuver and hit a car in front of
them.  Serrano heard Mejia say, “Come on,
brother,” to someone who approached him. 
Then he heard more than six gunshots, covered his head, and saw that
Mejia had been shot.

                        (b) 
Ordaz’s Statements to Law Enforcement

            Ordaz
was arrested on October 2, 2007, and participated in three audio-taped interviews
with law enforcement officials on the night of October 2 and 3.  He told police about the Mejia shooting, and
about the Melero-Smith shooting.  He
spoke with the assistant district attorney who prosecuted the case for both
shootings. 

            In
the interviews, Ordaz admitted he was a member of the Border Brothers, a gang
of approximately 500 individuals who are active in Oakland and in jails, and
are enemies of the much larger Norteno and Sureno gangs.  He joined the gang in 1998.  Ordaz was asked “[O]ne of the things they [Border
Brothers] go out and do is they do shootings, right?  That’s just the reality of it, right?”  He answered, “Yeah.”  He told police that he had been involved in 50
to 60 gang-related shooting incidents.

            He
came to Oakland from Stockton the day before the shootings and got a revolver.  He was drinking alcohol, using cocaine, and
high on ecstasy pills.  He said that when
he uses cocaine, “stuff goes through my head[,] just evil thoughts . . .
.”  Cocaine makes him feel “invincible,” “like
. . . I’m the king of the world . . . and nobody can stop me . . . .”  Ecstasy “messes up . . . your thinking . . .
. [E]ven though if you see somethin’ and somebody tell you to stop, you won’t
stop cause that’s what your mind is set to . . . . [S]ometimes you can’t
communicate right . . . . [Y]ou get a really crazy look . . . .”

            He
rode to the sideshow in a car with other Border Brothers, got out, and confronted
passengers in one or two other cars who he thought were Nortenos.  Then he saw a group of Border Brothers
surrounding another car, hitting the windows, kicking the doors, punching the
driver, and trying to pull him from the car. 
He pulled out his gun and ran to the driver’s side of the car.  He thought the driver had to be a Norteno or
Sureno, and that people in the car must have been threatening his friends
because his friends were hitting them.  He
shot twice, aiming at the bottom of the driver’s side window.  He then heard shots fired from three other
guns.  

            When
he was asked by the police why he shot when the other Border Brothers were only
punching and kicking, he answered, “I don’t know probably . . . instinct told
me he had . . . a gun or something . . . .” 
When he was asked by the police what the driver was doing when he shot
at the car, Ordaz answered, “[H]e was trying to grab the steering wheel and at
the same time go under the seat or . . . was he trying to cover, I don’t know .
. . .”  Ordaz told the district attorney
that he thought the driver was trying to reach under his seat to grab a knife
or a gun.

                        (c)  Physical Evidence

            An
autopsy showed that Mejia died of approximately 15 gunshot wounds, none of
which could be considered the sole cause of death.  Evidence technicians recovered 16 bullet
casings at the scene, and a bullet from the driver’s side floorboard of the
car.  The car’s back window had been shot
out, and there were bullet holes in the driver’s door and window.

            (2)  The Melero-Smith Killing

                        (a)  Percipient Witnesses

            Anthony
Sabral and Martin Moreno testified that Melero-Smith was with them outside
Sabral’s apartment around 7:00 p.m. on September 1.  A white car, with what Moreno called “sketchy
people,” drove by, returned, and stopped. 
A man with a black and white bandana around his neck got out of the car
and walked quickly across the street toward them.  The man, in Moreno’s words, looked “menacing”
and “very hood.”  When he got up close to
them, he pulled out a gun, and asked, “Y’all banging?” or “Y’all bang,
cuz?”  Melero-Smith, Sabral, and Moreno
ran away, saying “no, no, no, no.”  They
were not involved with gangs and were unarmed.

            The
man started shooting.  Sabral escaped to
his apartment and Moreno escaped to a laundry room.  As they were running away, Moreno saw Melero-Smith
fall.  From the laundry room, Moreno could
see Melero-Smith lying face down in the driveway with his hands by his
sides.  Moreno approached Melero-Smith,
discovered that he had been shot in the head, and called the police.

            Carmen
Gomez testified at the preliminary
hearing and that testimony was read to the jury because she was unavailable
as a witness at trial.  Gomez, Ordaz
(nicknamed Silent), Jose Lopez (Lupio), and Hector Arvizo (Dumb Dumb) were
riding in a car driven by Jose Castillon (Bear) in the early evening of
September 1, 2007.  They were going to her
apartment to get a bottle of Hennessey cognac to bring back to a barbeque they
were attending at the home of the mother of Alejandro Chaidez (Wino).  On the way to her apartment, they saw guys
standing on the sidewalk by a car, one of whom was wearing a red and white
cap.  Ordaz, who was drunk and “not in
his correct mind,” made a derogatory comment inside the car about Nortenos.

            Gomez
said that about ten minutes later, when they were returning to the barbeque,
Ordaz told Castillon to make a turn and drive back to the guys to see “where they
were from,” “gang-wise or turf-wise.”  Ordaz told Castillon to stop the car across
the street from them.  Ordaz took a gun
out of his pocket, got out of the car, and walked toward them talking
loudly.  The guys backed up, “shaking
their heads basically saying no.”  When
they saw the gun, they turned and ran up a driveway toward some apartments.  Ordaz stood on the sidewalk, fired about three
shots at them, and then took off running. 
Castillon made a U-turn and drove away from the scene.  When they were driving away, Gomez saw someone
on the ground.

            Arvizo,
testifying under a grant of immunity, said that he was riding in the car with
Ordaz, heard gunshots, but did not know “who really shot.”  When he was interviewed by police about the
incident, he said that he saw Ordaz approach Melero-Smith with a revolver and
heard him fire two or three shots.  At
the preliminary hearing, he testified that he told the truth in his police
interview.  

                        (b) 
Ordaz’s Statements

            Ordaz
said that he continued drinking alcohol and using cocaine after the Mejia
shooting.  He, Bear, Lupio, and Dumb Dumb
left Wino’s mother’s house in a car to pick up Gomez.  Along the way three or four guys “mean
mugg[ed]” them—gave them a “hard stare”—as they drove by.  He thought they were Nortenos because one of
them was wearing a red hat with white letters, and someone in the car said he
had seen them hanging around Nortenos. 
The hat stood out because red was rarely worn in the area.  He thought the guys did not belong there
because he had never seen them before. 
He told the people in the car that, after picking up Gomez, “we’re gonna
stop and check these fools real quick” because Border Brothers are expected to
confront Nortenos. 

            After
they picked up Gomez, he told the driver to pull over and stop by the guys he
believed were Nortenos.  He spoke with
the district attorney about what he would do if they were in fact
Nortenos:  “Q. . . . What were you
thinking about—hey, if these are Nortenos and they’re here, what was your
thinking as far as what you were gonna do about that? [¶] A.  Gotta get ‘em out of here. [¶] Q.  How do you do that? [¶] A.  I mean, whatever, whatever’s possible. [¶] Q.  And what were you thinking about as far as
those possibilities? [¶] A.  Mmm,
shoot ‘em.”  

            He
got out of the car and walked up to Melero-Smith and his friends.  They ran away as he approached.  He had his revolver in his pants pocket and
they did not see it before running.  As
they ran, one of them said “hood,” or “Norte.” 
He fired three or four shots, aiming “kind of in their direction.”  He fired the first shot “to tell them to
freeze.”  One of them was running into
the house, possibly to get weapons or friends. 
He fired more shots so they would not “feel compelled to come
outside.”  He had consumed a lot of
cocaine and alcohol, and was not thinking straight.

                        (c)  Physical Evidence

            Police
found a “deformed” bullet and two sets of possible bullet fragments at the
scene.  An autopsy showed that Melero-Smith
died of a gunshot wound to the head, and the fatal bullet was recovered from his
skull.  An expert in firearms
identification determined that the bullet in Melero-Smith’s skull and the
bullet on the driver’s floorboard in the car where Mejia was shot were fired
from the same gun.

            (3)  Expert Testimony About the Border Brothers

            An
Oakland police officer testifying as an expert on Latino street gangs testified
that the Border Brothers are comprised of smaller groups who banded together
initially to traffic in crack cocaine. 
Border Brothers, whose colors are black and brown, are enemies of Nortenos,
whose color is red, and Surenos, whose color is blue.  Border Brothers claim territory in Oakland
that includes the sites of the murders in this case.  When the murders occurred, Border Brothers
had at least 250 members, including Ordaz, Castillon, Lopez, and Chaidez.  Members gain respect within the gang through violent
acts, usually committed when they are together with other members.

            The
officer detailed his reasons for believing that Ordaz, Castillon, Lopez, and
Chaidez were gang members.  One basis for
the officer’s opinion that Ordaz was a member was his 2006 conviction of felony
assault.  In that incident, Ordaz,
Chaidez, and another Border Brother were trying to break into a vehicle when
they were confronted by the owner.  They
assaulted the owner, who was hit and kicked and suffered a “cut to the head.”  The officer testified to three incidents in
2002, and an incident in 1998, when Ordaz was associating with Border Brothers
who were on probation or suspected of committing crimes.  In a 1999 incident when police were
dispatched to investigate vandalism, Ordaz was arrested for possession of a
knife on school grounds.

            The
officer testified to other crimes committed by Border Brothers, including:  a 2006 killing, when Border Brother Vicente
Gomez was killed by his fellow gang member Jose Rodriquez, who was convicted of
voluntary manslaughter; a 2006 killing by gang member Alphonse Aquior Figueroa,
Junior, who was convicted of murder with a gang enhancement; and possession of
a controlled substance for sale by Castillon in 2006.

B. 
Defense Case

            (1)  Sisters’ Testimony

            Ordaz’s
older sister, Ana Ordaz (Ana), and younger sister, Marisol Medeiros (Medeiros),
testified about his life and misfortunes. 
Ordaz was born in 1981 and grew up in a home plagued by domestic
violence, drugs, and alcohol.  Ana dropped
Ordaz a few times while taking care of him when he was around two years old,
causing him to suffer a seizure on one occasion, which she did not disclose to
avoid being punished.  At around age five,
Ordaz twice fell out of trees onto his head and had to be taken to the
emergency room.  

            Ana
said that Ordaz was close with his younger sister Ava, and that he followed her
into a gang to protect her.  By 2000 he
was heavily involved with gangs, and he was shot in October of that year.  Due to his injuries, he underwent a bowel
resection and had to wear a colostomy bag for about a year.  He relapsed into drug use a few months after
the shooting.  Ana recalled going to his
apartment during this period and finding him acting very paranoid.  He did not recognize her and asked if a badge
she wore for work was a camera.  He later
told her that he had been mixing cocaine with marijuana.

            Ana
and Medeiros testified that Ordaz moved in with a girlfriend, Laura Hanson, in
Stockton, when Hanson was pregnant with twins.  Ordaz was very much looking forward to being a
father.  Hanson was due to give birth in
late January or early February of 2006, but after disappearing for a few days said
that the babies had been delivered stillborn.  Ordaz was devastated, started returning to
Oakland, and resumed using drugs.  Ana
said, “He was very violent, just being irrational.”

            Ordaz
was further devastated when Vicente Gomez, his best friend, was murdered in June
2006.  Ana said that his drug use
worsened, and he was again acting very paranoid.  He told Ana that he was not sleeping, and
that he was hearing voices and having hallucinations.

            Medeiros
said that after Ordaz got out of jail in March 2007 following his assault conviction,
he “wasn’t himself anymore” and “seemed a little paranoid.”   When
he was living with her in July 2007, he told her that he was getting drunk and using
drugs with friends, but he was not constantly on drugs or paranoid, so she
trusted him to take care of her one-year-old daughter.

            (2)  Expert Testimony

            Forensic
psychologist Carol Walser testified for Ordaz as an expert in neuropsychology,
psychological testing, and diagnosis of mental disorders.  In November and December 2010, she conducted a
six-hour clinical interview of Ordaz and administered 13 hours of psychological
tests.  Ordaz reported being physically
abused by his father, and sexually abused from age 13 to 17 by a man who plied
him with drugs.  He took reckless chances
because he did not find life worth living, and was suicidal after the death of
his best friend.

            Ordaz
detailed the drugs and alcohol he consumed around time of the killings.  He said that, because of his intoxication, he
was paranoid, his mind was “polluted” and “gone,” and he “couldn’t think at
all” or “discern anything like right or wrong.”    

            The
tests Walser gave Ordaz included three that showed he was not malingering.  The testing revealed a very high level of
paranoia, which “indicates that he is likely to misread and misinterpret social
situations and the intentions of others due to this paranoia.”  The testing also revealed severe href="http://www.fearnotlaw.com/">post traumatic stress disorder (PTSD).  Walser made the following diagnoses pursuant
to the DSM-IV criteria:

            Axis
I (clinical syndromes) included polysubstance-induced psychotic disorder (PIPD),
“which means the person is out of touch with reality.”  Alcohol, cocaine, marijuana, and ecstasy can
each produce hallucinations and delusions. 
Cocaine-related delusions are “typically persecutory delusions, that
means paranoid delusions, the person believes that somebody is going to harm
them.”  Delusions associated with
marijuana are also “usually paranoid or persecutory.”  The PIPD diagnosis was based on Ordaz’s
statements to the police and the district attorney, his reports of delusions
such as thinking “that his sister’s pendant was a camera,” and his sister’s
report of “finding him in this psychotic state when he’s been under the
influence.”  The PIPD diagnosis was also
based on tests showing that he had a substance abuse problem, and “that at times
that this could be a psychotic disorder.”

            Other
of Ordaz’s Axis I diagnoses included: chronic PTSD, which Walser attributed to
the sex abuse, and family and gang violence he had suffered; generalized
anxiety disorder; and dysthymic disorder (long-term, low-level depression). 

            Walser’s
other diagnoses were: Axis II (personality disorders)—none, but “depressive
personality traits, paranoid personality traits and negativistic personality
features [a pessimistic outlook on life]”; Axis III (medical conditions)—gunshot
wound; Axis IV (psychosocial factors)—the charged crimes; and Axis V (general
level of functioning)—“serious symptoms.”

            Walser
opined, based on “the information . . . that I obtained through my interview of
him and the other interviews,” that Ordaz’s PIPD was active on the day of the
killings.  She said that having a false
sense of danger would probably constitute a paranoid delusion, and that people
under such a delusion commonly instigate attacks to defend themselves.  She said that a person “switching from being
in reality to being out of reality or out of touch with reality, it can happen
like that. . . . [I]t’s a moment-to-moment thing.”  She had the following exchange with the
prosecutor on cross-examination: 
“Q.  Folks that get high, they can
do stupid things, right? [¶] A.  Right. [¶]
Q.  They can make bad decisions, right? [¶]
A.  If they’re in reality it can be a bad
decision.  If they’re in psychosis it’s
not a decision.” 

C. 
Verdicts

            The
jury found Ordaz guilty of:  second
degree murder of Mejia; shooting into an occupied vehicle (Pen. Code, § 246);
and first degree murder of Melero-Smith. 
As to each of these counts, the jury found true enhancements for
discharge of a firearm causing death (Pen. Code, § 12022.53, subd. (d)), and
commission of the crime to benefit a criminal street gang (Pen. Code,
§ 186.22, subd. (b)).  The jury
returned special circumstances findings of multiple murders (Pen. Code,
§ 190.2, subd. (a)(3)), and commission of Melero-Smith’s murder for the
benefit of a criminal street gang (Pen. Code, § 190.2, subd.
(a)(22)).  The jury also convicted Ordaz
of two counts of possession of a firearm by an ex-felon.  (Pen. Code, § 12021, subd. (a).)

>II. 
DISCUSSION

A. 
Evidentiary Issues

            (1)  Admission of Ordaz’s Statements to the District
Attorney

            Prior
to trial, Ordaz moved to exclude his statements in the two police interviews
and the interview with the district attorney on the ground that they were
obtained in violation of the Miranda rule
(Miranda v. Arizona (1966) 384 U.S.
436).  Ordaz argued that he was kept in
the interview room for approximately 14 hours without being permitted to go to
the bathroom, and thus his statements were involuntary.  The motion to suppress was denied.

             On appeal, Ordaz renews only his challenge to
admission of his statements to the district attorney on the ground they were
involuntary.  He argues that, by the time
that interview was conducted, he was “exhausted” and had gone many hours
without a bathroom break.  He contends that,
even if his police interviews were properly admitted, he was prejudiced by
admission of his district attorney interview because, in closing argument, “the
prosecutor made heavy impeachment hay of [his] final statement, claiming [he]
added new details supporting self-defense in both instances, showing he was
lying that he shot in honest fear.”  There
was no error, so we need not reach the issue of prejudice.

            Admission
of an involuntary confession into evidence violates a defendant’s state and
federal rights to due process.  (>In re Shawn D. (1993) 20 Cal.App.4th
200, 208.)  A confession is involuntary
when, in light of the totality of the circumstances, the defendant’s choice to
confess “was not ‘essentially free’ because his will was overborne.”  (People
v. Memro (1995) 11 Cal.4th 786, 827.) 
To be considered voluntary, a confession or admission must be shown to
be so by a preponderance of the evidence. 
(People v. Markham (1989) 49
Cal.3d 63, 71.)  The issue is determined
on the record of the questioning as a whole, taking into account the character of
the accused and the details of the interrogation.  (People
v. Vasila (1995) 38 Cal.App.4th 865, 873.) 
Whether a confession was voluntary is subject to our independent review,
but we must accept a trial court’s factual findings if they are supported by
substantial evidence.  (>People v. Richardson (2008) 43 Cal.4th
959, 992-993.)

            The
following evidence was adduced at the hearing on the motion to suppress:

            Ordaz
was arrested in Stockton on October 2, 2007, and put in an interview room at
the Oakland Police Department at 5:45 p.m. 
Oakland Police Sergeant Tony Jones testified that he checked on Ordaz
every hour when Ordaz was not being interviewed by opening the door to the room
and looking in, “to see if [he] need[ed] anything, to use the restroom or
need[ed] water or anything like that.”  
When Jones checked on Ordaz and saw his head down on the table, he
assumed Ordaz was sleeping.  Jones’s kept
a “room log,” which recorded his observations of Ordaz, when Ordaz was fed, and
times when he was interviewed.

            Ordaz
was apparently sleeping at 6:50 p.m., 7:40 p.m., and 8:30 p.m.  He was questioned from 9:53 p.m. to 11:30
p.m. about Melero-Smith’s killing, and from 11:42 p.m. to 1:17 a.m. about the
Mejia killing.  He was told at the end of
the second interview that he would be having a third interview with a district
attorney.  At 2:20 a.m., he was given a cheeseburger,
fries, and a Coke.  He was apparently sleeping
at 3:10 a.m., 4:00 a.m., and 5:00 a.m., while the district attorney reviewed
his prior statements.  He was interviewed
by the district attorney from 5:22 a.m. to 7:25 a.m.

            Nothing
in this record suggests that Ordaz’s statements to the district attorney were
involuntary.  He was apparently able to
sleep before and after his questioning by the police, belying his claim of
exhaustion.  He was fed.  He was checked hourly  to see whether he needed anything.  Sergeant Jones entered the room, and did not
just look through a window, when he observed Ordaz.  Thus, Ordaz would have known that he was
being monitored, and had ample opportunities to request to use the
bathroom.  There is no evidence that the
police were guilty of any coercion or neglect, or that Ordaz suffered from any fatigue
or distress during his interview with the district attorney.  We independently agree with the trial court
that Ordaz’s statements were shown to be voluntary.

            (2)  Admission of Details of Ordaz’s Assault
Prior

            Ordaz
filed an in limine motion to exclude or limit the testimony of the
prosecution’s gang expert, and argued that the expert should be precluded from
“making conclusionary statements regarding [Ordaz’s] specific intent during commission
of the acts” charged.  Ordaz also
objected to the gang testimony under Evidence Code section 352, arguing
that its prejudicial effect would outweigh its probative value.   According to Ordaz, the evidence would have
little probative value because he was not disputing his gang affiliation, and it
would be highly prejudicial because it would be inflammatory and “bring in
hearsay that has no assurance of reliability.”

            The
court sustained the objections insofar as they sought to prevent the expert from
testifying to Ordaz’s specific intent.  The
court ruled that the expert “shall not testify about anybody’s states of mind,
what they were actually thinking.”  The
court sustained some of the Evidence Code section 352 objections to
gang-related incidents the expert had investigated, but overruled those
objections to predicate offenses that were offered to show a pattern of
criminal gang activity, including Ordaz’s 2006 conviction for assault.  

            The
prosecution was permitted to introduce evidence of the 2006 assault in part
because Walser, the defense psychologist, was going to raise it.  When use of the assault as a predicate offense
was first argued, the court noted that, according to Walser’s report, Ordaz told
her that he was arrested for the assault because he was “defending someone that
afterwards did not want to testify on his behalf.”  The court said, “So it’s coming into evidence
that way,” and defense counsel replied, “It would appear so.”  The court later observed that the assault was
“certainly a basis for the opinions” in Walser’s report, and confirmed with
defense counsel that “this information is going to come to the jury in that
respect.”   Thus, one reason for
admitting the prior was “the offer of proof the defense has made about what Dr.
Walser may testify to . . . .  [¶] 
. . . I am somewhat loath to exclude such evidence for the prosecution while
knowing that the defense is going to be permitted to put it in.” 

            The
assault was also relevant, or potentially relevant, because it demonstrated
Ordaz was a felon for purposes of the possession of a firearm charges, and served
as a ground for impeachment in the event Ordaz testified.  Moreover, “sanitization” of the prior crime was
discussed in both of those contexts.  When
impeachment was discussed, the court identified “three possibilities”: (1)
“without any sanitizing having occurred, he committed . . . an assault . . . with
a deadly weapon”; (2) “partial sanitizing, convicted of a crime involving
violence”; and (3) “full sanitizing, would be convicted of a felony.”  When defense counsel expressed a preference
for the full sanitizing option, the court asked, “Is it likely that your expert
is going to testify about this 245 in some detail?” and counsel responded, “I’m
making the record here in case something happens during the course of the trial
that is unanticipated.”  After deciding that
the assault could be used for impeachment and as evidence on the gang issues,
the court told the prosecutor that he could “prove [the assault] up directly without
any sanitizing or bifurcation . . . as an element of the [firearm possession]
charge[s].”  

            Defense
counsel did not object when the court ruled that the assault could be
introduced “unsanitized” in the prosecution’s case-in-chief, and did not object
when the prosecutor elicited testimony from the gang expert that Ordaz and two
other Border Brothers were trying to break into a victim’s car, hit and kicked
the victim, and cut the victim on the head. 
Thus, while counsel objected to admission of the assault, he did not
object to admission of the details of
the assault, and thereby forfeited the argument Ordaz seeks to raise in this
appeal.  (Evid. Code, § 353, subd.
(a) [timely, specific objection is required].)

            Ordaz
contends that, if the argument was forfeited, then his trial counsel was
ineffective for failing to preserve it.  “On
direct appeal, a conviction will be reversed for ineffective assistance [of
counsel] only if (1) the record affirmatively discloses counsel had no rational
tactical purpose for the challenged act or omission, (2) counsel was asked for
a reason and failed to provide one, or (3) there simply could be no
satisfactory explanation.”  (>People v. Mai (2013) 57 Cal.4th 986,
1009.)  None of these conditions are
satisfied here.  The record indicates
that counsel may have refrained from objecting to the details of the assault
because he intended to explore them with the defense psychologist.

            In
any event, Ordaz’s Evidence Code section 352 argument against admission of
the assault lacks merit.  Evidence is
excludable under section 352 only if its probative value is substantially
outweighed by its potentially prejudicial effect.  The details of the assault were relevant to
prove that it was gang-related, and evidence that Ordaz participated in punching,
kicking, and cutting someone was not inflammatory in the context of the shootings
charged in the case.  As the court
explained, the prejudicial effect of the assault and other evidence of Ordaz’s
gang association was “near zero” in context.  â€œ[A]ll of this information I’ve looked at
related to Mr. Ordaz is far, far, far less inflammatory than the direct
evidence about the two murders that he’s accused of [committing].  [¶] So if the murder of Mr. Mejia with
those many, many bullet holes in his body, if we called that a ten on the
inflammatory scale, nothing in the rest of this information rises above about a
three, to give some relative context here. . . . So I find that nothing else
I’m looking at comes within a country mile in terms of inflammatory effect as
the direct evidence of these two murders.” 
No abuse of the court’s broad discretion under Evidence Code
section 352 (e.g., People v.
Rodrigues (1994) 8 Cal.4th 1060, 1124) can be shown in admitting the circumstances
of the assault.

            (3)
 Restriction of Defense Expert
Testimony

            Walser
testified that Ordaz made about ten statements in his interview with the district
attorney that were consistent with his claims of drug use at the time of the
killings.  When she was asked to identify
those statements in the transcript of the interview, the court asked counsel
for sidebar conference, and then “sustain[ed] [its] own objection [to the
question].”  Ordaz contends that the
court erred in so doing because Walser’s opinions were based to a significant
extent on his interviews with law enforcement, and she should have been
permitted to explain why the interviews supported her conclusions.

            The
judge said that he excluded the evidence because “I developed concern based on
the testimony that I was hearing that the witness was getting ready to tell the
jury that she believed and they should believe what Mr. Ordaz told her.  So she was getting ready to give an opinion
on whether what he said to her during the 19 hours of interviews was credible
and truthful.  [¶] And she had not
yet approached this point yet and I called counsel to [sidebar] and this was a
point where . . . it seemed to me [defense counsel was] eliciting an analysis
by the expert on the things that Mr. Ordaz had told her about his drug use and [he
was] asking her to compare that to all the specific places in the statement to
[the district attorney] and the statement to the police where he had also said
similar things.  [¶] And she was
beginning to go through and do that analysis and I interrupted that and . . .
indicated to both counsel that among other things I would not allow a police
officer to offer the opinion as to whether Mr. Ordaz in an interview was
telling the truth or was not telling the truth, I would not allow a police
officer or any other witness to speak to whether any witness testifying in the
trial was telling the truth or not. 
That’s an issue that the jury gets to decide.”

            When
the issue was discussed, the prosecutor argued that “the [interview] transcript
will speak for itself, and during argument [defense counsel] can point out
whether or not the two [Ordaz’s statements to the district attorney and Walser]
            coincide . . . .”  Defense counsel argued that comparing Ordaz’s
statements to Walser and those he made to the district attorney did not
constitute improper vouching for Ordaz’s credibility.  The court responded to defense counsel:  “But as our record shows my concern was
prophetic.  Because at least twice, if
not three times, she went into giving opinions about whether Mr. Ordaz had told
her the truth.  And I admonished her
twice in front of the jury not to do that.”href="#_ftn1" name="_ftnref1" title="">[1]

            “The
general rule is that an expert may not give an opinion whether a witness is
telling the truth, for the determination of credibility is not a subject
sufficiently beyond common experience that the expert’s opinion would assist
the trier of fact; in other words, the jury generally is as well equipped as
the expert to discern whether a witness is being truthful.”  (People
v. Coffman and Marlow (2004) 34 Cal.4th 1, 82.)  Whether or not a comparison of what Ordaz
told Walser and the district attorney about his drug use around the time of the
killings would have been improper “vouching,” the purpose of such a comparison would
have been to bolster Ordaz’s credibility on the subject.

            In
any event, the court did not, as Ordaz suggests, weaken Walser’s opinions with
a broad ruling that she could not base them on his interviews with law
enforcement.  It merely precluded her from
going through ten points in his interview with the district attorney when Ordaz
said the same things he told her about his drug use.  The ruling was a narrow one and Ordaz was not
prejudiced by it.  The jury heard what
Ordaz told the district attorney and Walser about the drugs he consumed, and did
not need expert assistance to determine the extent to which those statements were
consistent.  Moreover, while the court
did not permit Walser to opine that Ordaz told her the truth, it allowed her to
opine that her testing showed that he was not malingering.  The court did nothing to undermine Walser’s
or Ordaz’s credibility.

B. 
Prosecutorial Misconduct

            The
defense argued to the jury that Ordaz was guilty of no more than voluntary
manslaughter because he acted in unreasonable self-defense when he shot at
Mejia and Melero-Smith.  In final closing
argument, the prosecutor said the defense was trying to “fool” the jury with
that argument.  Ordaz contends that the remarks
were misconduct because the argument was an improper attempt to “denigrate
defense counsel or accuse him . . . of trickery or fabricating evidence.”  Ordaz maintains that the prosecutor committed
further misconduct and misstated the law by telling the jury that the court was
required to instruct on voluntary manslaughter even if the instructions lacked
evidentiary support.  (See >People v. Barton (1995) 12 Cal.4th 186,
194-195 & fn. 4 [instructions on voluntary manslaughter as a lesser
included offense of murder require evidence “substantial enough to merit
consideration by the jury”].)

            The
context for the challenged remarks concerning voluntary manslaughter was as
follows:

            “You
are going to receive an instruction with all other instructions very shortly,
and there’s an instruction in here that basically says, look, whether—you are
going to hear lots of instructions. 
Whether certain jury instructions even apply to this case is going to
depend on what you really find to be the facts. 
Disregard any instruction which applies to facts determined by you not
to exist.

            “So
the Court’s responsibility, the judge, is to provide the law to you accurately
and completely.  The mere giving of an
instruction to you doesn’t mean that there quite frankly is anything behind the
theory that the instruction deals with. 
For example, you are going to [receive] instructions in here about
involuntary manslaughter.  You may have
noticed that [defense counsel] didn’t talk that much at all about involuntary
manslaughter.  I haven’t either.  Why? 
Well, as you look at the instruction for involuntary manslaughter you
are going to see that it’s a killing without intent to kill, without conscious
disregard.  And basically it’s premised
on the idea that somebody might negligently discharge a firearm and cause
death. [¶] . . .

            “We
are not even close to the world of involuntary manslaughter here.  Yet you will see instructions about
involuntary manslaughter because it’s the Court’s duty to instruct you fully on
the law of homicide.  Similarly, the
Court will instruct you on this theory of voluntary manslaughter based upon the
actual but unreasonable belief in           self[-]defense.  The
fact that instruction is given to you doesn’t mean that there’s anything
whatsoever in the evidence that supports that kind of verdict.

            “The
claim that Allan Mejia was reaching for a gun, the claim that I believe that
these guys were going to run into the house and get guns, first of all is
contrived.  And especially in the murder
of Tomas Melero-Smith, to say that you can stand out in front of a building and
people run away that, oh, I believed they were going to go in and get guns and
come back out and kill me, so therefore I had to shoot them as they were
running away is absurd.

            “If
that’s actually your belief and honestly your belief what are your actions
going to be?  Run away yourself.  You’ve got time, they’re going to go into the
house.  Go back [to] the car.  . . . To say that that is what was motivating
him shooting at those boys is ridiculous.

            “The
killings in this case are not manslaughter by any stretch of the
imagination.  The defense finds the
little excuses that the defendant provides in his interviews, they go and find
Dr. Walser who is very happy to have a very narrow view of the defendant and
accept what he says to her as the truth and to go from there.

            “And
they take all of that, and they literally threw it up on the wall and they want
to try to make something stick to try to confuse you.  Quite frankly, to see if they can find one of you to be fooled by that.  That’s
all they need, for one of you to be fooled by all this that’s thrown on the
wall that somehow turns this into something other than what it is, which is a
straight-up, cold-blooded murder.

            “How
do you know it’s thrown up on the wall? 
Think about the defense argument in this case.  They come in here and say look at all these
bad things that happened to Ivan Ordaz. 
Look at the drugs he was taking. 
What did they ask you to do with it? 
What did they say how this fits within the law?  They just said he’s drunk, he’s high, he’s
got all these mental problems, he’s had these problems in his life.  Did they give you any guidance about what you
are supposed to do with that other than throw it up on the wall and hope that
you will be fooled by it? [¶] . . .

            “
. . . The issues that were raised by the defense in an attempt to somehow fool you that this is no more than voluntary
manslaughter is not worthy of much, quite frankly.           [¶] . . .

            “Standing
at the side of the car where you know somebody is sitting in the driver’s seat
and firing a gun through the driver’s side multiple times or revolver rounds in
the head of Mr. Mejia, at a minimum—at a minimum, ladies and gentlemen, that is
second degree murder.  That’s about the
definition of implied malice.

            “Coming
up to three guys on the sidewalk and as they’re running away up this driveway
taking a gun pointing it at their direction and firing multiple times, knowing
that they’re human beings, knowing that they’re running away, at a minimum
conscious disregard, dangerous act, implied malice.”  (Italics added.)

            Ordaz’s
challenges to the italicized remarks are unavailing.  He forfeited his challenges by failing to
object to the remarks and ask that the jury be admonished to disregard
them.  (People v. Cunningham (2001) 25 Cal.4th 926, 1001; >People v. Bell (1989) 49 Cal.3d 502,
538-539.)  Moreover, the prosecutor did
not commit misconduct.

            The
repeated warnings against being “fooled” by the imperfect self-defense theory
“[r]ead in the context of [the] broader argument . . . were a fair response to
defense argument . . . and reflected the prosecutor’s belief in the inadequacy
of the evidence relied on by the defense.” 
(People v. Frye (1998) 18
Cal.4th 894, 978, [no misconduct where the prosecutor called the defense
“irresponsible,” “ludicrous,” and a “smoke screen”], disapproved on another
ground in People v. Doolin (2009) 45
Cal.4th 390, 421, fn. 22.)  “The
prosecutor’s remarks . . . would be understood by the jury as an admonition not
to be misled by the defense interpretation of the evidence, rather than as a
personal attack on defense counsel.”  (>People v. Cunningham, >supra, 25 Cal.4th at pp. 1002-1003
[no misconduct where the prosecutor said it was defense counsels’ job “to
create straw men” and “put up smoke, red herrings”]; see also >People v. Medina (1995) 11 Cal.4th 694,
759 [statement that “ ‘any experienced defense attorney can twist a little,
poke a little, try to draw some speculation, try to get you to buy something’ ”
did “not amount to a personal attack on counsel’s integrity”]; >People v. Bell, supra, 49 Cal.3d at p. 538 [statement that defense counsel “ ‘wants
to confuse you’ ” “could be understood as a reminder to the jury that it should
not be distracted from the relevant evidence and inferences that might properly
and logically be drawn therefrom”].)

            Nor
did the prosecutor misstate the law in saying “[t]he fact that instruction is
given to you doesn’t mean that there’s anything whatsoever in the evidence that
supports that kind of verdict.”   Although a lesser included offense instruction
should be given only when the evidence supporting it “is substantial enough to
merit consideration by the jury” (People
v. Barton, supra, 12 Cal.4th at p. 195,
fn. 4), the jury is free to find, in the prosecutor’s words, that there is “[no]thing
whatsoever in the evidence that supports that kind of verdict.”  As the jury was told in the CALJIC No. 17.31
instruction to which the prosecutor properly referred:  “Whether some instructions apply will depend
upon what you find to be the facts. 
Disregard any instruction which applies to facts determined by you not
to exist.”  The prosecutor did not
erroneously say “[t]he fact that instruction is given to you doesn’t mean that
there’s anything whatsoever in the evidence that [could support] that kind of verdict.”  The prosecutor’s statement was, in context,
primarily a comment about the defense evidence rather than a statement about the
applicable law.

C. 
Instructional Issues

            (1)  Mental Disease

             Ordaz contends that the court erred in refusing
two pinpoint instructions he requested, and in giving a truncated version of
CALJIC No. 3.32, relating his mental condition to the states of mind required
for conviction.

            CALJIC
No. 3.32 states:  “You have received
evidence regarding a [mental disease] [mental defect] [or] [mental disorder] of
the defendant _______ at the time of the commission of the crime charged
[namely, _______] [in Count[s] _______ [.] [or a lesser crime thereto, namely _______].  You should consider this evidence solely for
the purpose of determining whether the defendant _______ actually formed [the
required specific intent,] [premeditated, deliberated] [or] [harbored malice
aforethought] which is an element of the crime charged [in Count[s] _______],
namely, _______ [.] [or the lesser crime[s] of _______].”

            The
court instructed with a modified CALJIC No. 3.32 that read: “You’ve received
evidence regarding a mental disease, mental defect, or mental disorder of the
defendant at the time of the commission of the crimes charged.  You should consider this evidence solely for
the purpose of determining  whether the
defendant actually formed the required state of mind, which is defined
elsewhere in these instructions.”

            Ordaz
did not object to this modified version before the case was submitted to the
jury, but argued in a motion for new trial that the instruction should have
specified particular charges and the mental states required for each.  The court said that it modified CALJIC No. 3.32
to broaden it so Ordaz could argue that his mental condition prevented him from
having the mental state required for general intent, as well as specific
intent, crimes.

            There
was no error.  Ordaz’s argument that the
court’s modified version of CALJIC No. 3.32 was deficient because it did not
specify the mental states involved in the various charges against him is
untenable under People v. Rundle
(2008) 43 Cal.4th 76 (disapproved on another ground in People v. Doolin, supra,
45 Cal.4th at p. 421, fn. 22). 
There, as here, the court gave a shortened and more general version of
the instruction that stated simply:  “
‘Evidence has been received from which you may find that the defendant was
affected by a mental condition at the time of the crimes charged.  You may consider such evidence solely for the
purpose of determining whether or not the defendant actually formed any intent
or mental state which is an element of the crimes charged.’ ”  (People
v. Rundle, supra, 43 Cal.4th at p. 148.)  The defendant argued that the trial court
“erred by failing to specifically name for the jury the intent or mental state
to which defendant’s ‘mental condition’ evidence was relevant.”  (Ibid.)

            The
argument failed:  “We previously have
rejected challenges similar to defendant’s regarding the failure explicitly to
define the term ‘mental states’ in instructions concerning the effect of a
mental defect upon the defendant’s ability to form mental states required for
the commission of various offenses. 
Thus, we have found no error in cases in which a mental defect
instruction merely mention the term ‘mental state’ in a generic sense, but the
trial court elsewhere . . . generally instructed that ‘ “ ‘[t]he mental state
required is included in the definition of the crime charged.’ ” ’ ”  (People
v. Rundle, supra, 43 Cal.4th at
p. 149.)  This reasoning applies
equally here.  The court instructed the
jury that crimes involve “both an act and a state of mind,” and its version of CALJIC
No. 3.32 advised that “the required state of mind” was “defined elsewhere in
these instructions.”

            The
requested pinpoint instructions stated: 
(1) “You have heard evidence that the defendant may have suffered from a
mental disease or defect [at] the time of the commission of the charged
crimes.  You may consider this evidence
in determining whether the defendant possessed the mental states required for
the charged crimes”; and  (2) “If you
have a reasonable doubt as to whether the defendant possessed the required
mental state or states, you must find that he did not possess the required
mental state or states.”

            When
the instructions were discussed during trial, the court explained that it
declined to give the requested pinpoint instructions because their subject
matter was covered by other instructions.  The first of the requested pinpoint
instructions was covered by the modified version of CALJIC No. 3.32 the court
furnished.  The second pinpoint was also
covered by other instructions, including the general instruction on reasonable
doubt (CALJIC No. 2.90), the instructions identifying the mental states
associated with the charges, and the last paragraph of CALJIC No. 4.21.1, the
instruction on voluntary intoxication that was read to the jury immediately
after CALJIC No. 3.32.  That paragraph
states:  “If from all the evidence you
have a reasonable doubt whether a defendant had the required specific intent or
mental state, you must find that defendant did not have that specific intent or
mental state.”  The jury did not need to
hear this instruction twice when it was being instructed on the relevance of
Ordaz’s mental condition and voluntary intoxication.  

             (2)  Limiting
Instruction on Gang Evidence

            Following
closing arguments, the court instructed the jury pursuant to CALCRIM No. 1403:

            “You
may consider evidence of gang activity only for the limited purpose of deciding
whether the defendant acted with the intent, purpose, and knowledge that are
required to prove the gang-related crimes
and enhancements and special circumstances allegations charged, or the
defendant had a motive to commit the crimes or 
the defendant actually believed in the need to defend himself or the
defendant acted in the heat of passion.

            “You
may also consider this evidence when you evaluate the credibility or
believability of a witness and when you consider the facts and information
relied upon by an expert witness in reaching his or her opinion.  You may not consider this evidence for any
other purpose.  You may not conclude from
this evidence that the defendant was a person of bad character or that he has a
disposition to commit crime.”  (Italics
added.)

            Ordaz
contends that the italicized word “crimes” improperly allowed “consideration of
all gang evidence on every charged crime” because the term “ ‘gang activity’ is
very broad and . . . every count was alleged to be gang-related.”href="#_ftn2" name="_ftnref2" title="">[2]  (Italics omitted.)  He also faults the instruction because it did
not say that the jury “could not consider other crimes or gang activities that
were not at least proven to a preponderance (or beyond a reasonable doubt if
they are essential to guilt . . .).”

            Although
CALCRIM No. 1403 did not refer to the prosecution’s burden of proof, that
burden was adequately addressed in other instructions.  The jury was instructed pursuant to CALJIC
No. 2.80 that an expert’s opinion “is only as good as the facts and reasons upon
which it is based,” and that “[i]f you find that any fact has not been proved,
or has been disproved, you must consider that in determining the value of the
opinion.”  Moreover, the court instructed
pursuant to CALJIC No. 2.90 that the People were required to prove Ordaz’s guilt
beyond a reasonable doubt.

            Ordaz
says that CALCRIM No. 1403 “posed a serious risk of unfair use of tempting but
improper evidence to shore up” the prosecution’s case on the murder and vehicle-shooting
counts, which the jury could have considered “gang-related crimes” because they
had gang enhancements.  He argues as if
inclusion of the word “crimes” in the final version of the instruction opened
the door to use of all of the expert testimony about gangs against him on all of
the issues associated with those offenses, but that is not true.

            The
instruction limits the use of gang activity only to prove “intent, purpose, and
knowledge.”  (CALCRIM No. 1403.) No
issues of knowledge were presented, and the gang evidence could properly be considered
as proof of the purpose of the crimes (People
v. Samaniego (2009) 172 Cal.App.4th 1148, 1167 [gang evidence is relevant
and admissible when motive for crime is gang-related]).  The murder counts raised issues of specific
intent.  (People v. Mendoza (1998) 18 Cal.4th 1114, 1132; compare >People v. Ramirez (2009) 45 Cal.4th 980,
985, fn. 6 [shooting at an occupied vehicle is a general intent crime].)  However, we are not persuaded that even the
most potentially inflammatory gang evidence—Ordaz’s prior assault, and the
murder and manslaughter committed by other gang members—could have caused the
jury to find that Malero’s murder was willful, deliberate, and premeditated, or
that Mejia’s murder was intentional, if they otherwise had reasonable doubt.  The case for those findings was based on the
circumstances of the killings, not on the predicate offenses introduced to
prove a pattern of gang activity by the Border Brothers.  Ordaz was not prejudiced by the word “crimes”
in the last version of the limiting instruction.

            (3)  Aiding and Abetting Instruction

            Ordaz
contends that his conviction for second degree murder of Mejia must be reversed
because the court erroneously instructed on aiding and abetting liability.  Mejia died from multiple gunshot wounds, no
single one of which could be specified as the cause of death.  The prosecution argued that Ordaz was guilty
of Mejia’s murder as an aider and abettor because Ordaz instigated the fatal rain
of bullets from gang members, even if none of the bullets fired by Ordaz struck
Mejia. 

            The
jury was instructed pursuant to CALJIC No. 3.01 that “A person aids and abets
the commission or attempted commission of a crime when he or she, one, with
knowledge of the unlawful purpose of the perpetrator, and, two, with the intent
or purposed of committing or encouraging or facilitating the commission of the
crime, and, three, by act or advice or by failing to act in a situation where a
person has a legal duty to act, aids, promotes, encourages or instigates the
commission of a crime.”  The court also
instructed pursuant to former CALJIC No. 3.00: 
“Persons who are involved in committing or attempting to commit a crime
are referred to as principals in that crime. 
Each principal, regardless of the extent or manner of participation, is >equally guilty.  Principals include those who directly and
actively commit or attempt to commit the act constituting the crime, or those
who aid and [abet] the commission or attempted commission of the crime.”  (Italics added.)

            Ordaz
contends that it was error in this case to instruct the jury that principals
are equally guilty because, as stated in the Use Note to current CALJIC No.
3.00, “in a murder or attempted murder prosecution, not involving felony-murder
or the natural and probable consequences doctrine, the guilt of an aider and
abettor may be equal to, greater or less than that of the actual perpetrator
depending upon the mens rea of the aider and abettor.”  (Ibid.,
citing People v. McCoy (2001) 25
Cal.4th 1111, 1114, and People v.
Samaniego, supra, 172 Cal.App.4th at p. 1164.)  Under CALJIC No. 3.00 as currently used in
murder cases, the words “equally guilty” have been replaced by “guilty of a
crime,” and the following language is added: 
“When the crime charged is . . . murder . . . the aider and abettor’s
guilt is determined by the combined acts of all the participants as well as
that person’s own mental state.  If the
aider and abettor’s mental state is more culpable than that of the actual
perpetrator, that person’s guilt may be greater than that of the actual
perpetrator.  Similarly, the aider and
abettor’s guilt may be less than the perpetrator’s, if the aider and abettor
has a less culpable mental state.”

            Defendant
Salmaniego, like Ordaz, sought to overturn his murder convictions because his jury
was instructed under former CALCRIM No. 400 that “ ‘[a] person is >equally guilty of the crime whether he
or she committed it personally or aided and abetted the perpetrator who
committed it.’ ”  (People v. Salmaniego, supra,
172 Cal.App.4th at p. 1163.)  The court
found the argument was forfeited. 
“Generally, ‘ “[a] party may not complain on appeal that an instruction
correct in law and responsive to the evidence was too general or incomplete
unless the party has requested appropriate clarifying or amplifying language.”
’ [Citations.] . . . CALCRIM No. 400 is generally an accurate statement of law,
though misleading in this case. 
Samaniego was therefore obligated to request modification or
clarification and, having failed to have done so, forfeited this
contention.”  (Ibid.)  We reach the same
conclusion here.

            It
is significant that the “equally guilty” language was at least partially
correct in the circumstances of this case because Ordaz could be found to have
been both a perpetrator and an aider and abettor of Mejia’s killing.  “When two or more persons commit a crime
together, both may act in part as the actual perpetrator and in part as the
aider and abettor of the other, who also acts in part as an actual perpetrator.”  (People
v. McCoy, supra, 25 Cal.4th at
p. 1120.)  In such a situation,
“[t]he aider and abettor doctrine merely makes aiders and abettors liable for
their accomplices’ actions as well as their own.  It obviates the necessity to decide who was
the aider and abettor and who the direct perpetrator or to what extent each
played which role.”  (>Ibid.)

            In
context, the error Ordaz identifies was harmless under any standard.  He suggests that the jury might have used the
instruction to avoid grappling with his claim of unreasonable self-defense.  However, no evidence or argument was
presented about the mental states of the other shooters, and any finding that
their mens rea was more culpable than Ordaz’s would have been sheer
speculation.  Moreover, “[a]ider and abettor
liability is premised on the combined acts of all the principals” (>People v. McCoy, supra, 25 Cal.4th at p. 1120), which, in this case, included at
least 15 shots fired at Mejia, not just the two fired by Ordaz.  The evidence for implied malice was overwhelming.

 

            (4) 
Multiple-Murder Special Circumstance Instruction

            Ordaz
argues that the multiple-murder special circumstance finding must be reversed
because the jury was not instructed that it had to determine that Ordaz
intended to kill Mejia as well as Melero-Smith in order to find that special
circumstance.  This contention fails
because our Supreme Court recently confirmed that the multiple-murder special
circumstance does not require a finding the defendant intended to kill more
than one victim.  (People v. Maciel (2013) 57 Cal.4th 482, 521, citing >People v. Rogers (2006) 39 Cal.4th 826,
892.)

            (5)  Voluntary Manslaughter Instructions

            Ordaz
argues that his murder convictions must be reve