People v. Alvarado CA4/2

Filed 12/19/13 P. v. Alvarado 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

THE PEOPLE,

Plaintiff and Respondent, E054118

v. (Super.Ct.No. FVI901482)

EDUARDO GOMEZ ALVARADO et al., OPINION

Defendants and Appellants.

APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin,

Judge. Affirmed in part and reversed in part.

Cliff Gardner, under appointment by the Court of Appeal, for Defendant and

Appellant Eduardo Gomez Alvarado.

R. Clayton Seaman, Jr., under appointment by the Court of Appeal, for Defendant

and Appellant Cesar Roberto Rodriguez.

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 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Barry Carlton and Teresa

Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Three people, bound at their hands and feet, were driven to a remote location in

the desert and shot. Two of the victims died; the third survived. Following an

investigation, defendants and appellants, Eduardo Gomez Alvarado and Cesar Roberto

Rodriguez, among others, were charged with numerous crimes, including murder,

attempted murder, kidnapping, and street terrorism. The case against Alvarado and

Rodriguez was severed from the case against the other defendants. Because Alvarado

and Rodriguez each made pretrial statements implicating the other, separate juries were

empanelled.

The respective juries convicted Alvarado and Rodriguez of two counts of first

degree murder, one count of attempted murder, and three counts of kidnapping to commit

robbery. Alvarado’s jury also convicted Alvarado of street terrorism.1 The juries found

true allegations regarding certain special circumstances and sentence enhancements.

Alvarado was sentenced to prison terms of three years, plus 75 years to life, plus life

without the possibility of parole. Rodriguez was sentenced to terms of nine years, plus

life, plus life in prison without the possibility of parole.

1 When Rodriguez’s jury was unable to reach a verdict on the street terrorism
count, the court declared a mistrial and it was subsequently dismissed.

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 Alvarado argues the court erred in allowing the testimony of a gang expert and the

sufficiency of the evidence supporting gang-related charges and allegations. He also

challenges certain jury instructions. We reject his evidentiary arguments and conclude

that any instructional error was harmless.

Rodriguez argues the evidence was insufficient to support the convictions for

robbery and kidnapping for robbery or the true finding as to the special circumstance

allegation that the murders were committed during the course of a robbery. He further

argues that, because there was insufficient evidence of robbery, the murder convictions

must be reversed because one theory of murder was felony murder based on robbery.

Finally, he contends the kidnapping for robbery convictions must be reversed because

any robbery was complete prior to the kidnappings. We conclude the evidence is

insufficient to establish the true findings as to the robbery special circumstance findings,

and otherwise reject Rodriguez’s arguments.2

II. FACTUAL SUMMARY

A. Facts Presented to Both Juries

On the night of June 23, 2009, a motorist found Luis Romero walking onto

Highway 395. Romero had been shot in the face and abdomen and was bleeding. Some

of his teeth were missing. The motorist called 911.

2 Each defendant joined in the arguments of the other pursuant to California Rules
of Court, rule 8.200(a)(5).

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 San Bernardino sheriff’s deputies responded and followed a trail of blood from

where Romero was found to a black Chevrolet Silverado truck about one-quarter mile

away. In the backseat of the Silverado they found the bodies of Eduardo Gomez and

Alejandro Martin. The victims’ hands and feet were bound with zip ties. They had been

shot multiple times. Spent shell casings from .40-caliber and nine-millimeter bullets

were on the ground near and inside the truck.

Gomez’s body was seated behind the driver’s seat; Martin’s body was in the

middle of the backseat. There was an empty spot in the seat behind the front passenger

seat and, on the floorboard in front of the unoccupied spot, a pair of shoes zip-tied

together. A bullet and human teeth were found in a cup holder in the rear passenger-side

armrest.

Alvarado’s fingerprint was found on the rear passenger door of the Silverado.

Information provided by Romero led investigating officers to a duplex apartment

in South Gate.3 A garage was located under the primary living unit. When officers

searched the residence approximately one week after the shootings, it appeared the

residents had vacated the premises. There were no sofas, tables, televisions, chairs, or

clothing; there were mattresses on bedroom floors without bedding. They did find some

mail addressed to Flor Iniguez, Romero Junior Cruz, and Jose Perez. They also found

some prescription medicine for Iniguez, an empty box for latex gloves, and a bag with zip

3 At the time of trial, Romero was believed to be in Mexico. He did not testify at
trial.

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ties similar to the ties that bound the victims. Tire tracks in the driveway were similar to

tracks found at the desert crime scene.

An asset protection manager for a Target store produced a surveillance videotape

showing three people purchasing latex gloves from the store. The three individuals

looked like Rodriguez, Perez, and someone known as Skeebie. After leaving the store,

the three walked to a black truck and drove toward a McDonald’s restaurant located in

the parking lot. The store was located less than one mile from the South Gate duplex.

California Highway Patrol Officer Jeffrey Moran, one of the investigating officers,

testified as a percipient witness and, over defense objections, as a gang expert. Officer

Moran went to a storage facility where Iniguez rented a unit. While he was there, he saw

Perez leaving the facility in a car. Officer Moran detained Perez and searched the car. In

the trunk of the car, Officer Moran found a black trash bag with a loaded shotgun and a

PlayStation 2 box. The box had the phrase “Smoky 13” written on it. Inside the box was

a large plastic bag containing approximately two pounds of cocaine. The cocaine had a

street value of $35,000. Officer Moran opined that the cocaine was possessed for sale.

He also testified that the word “Smoky” was a gang moniker and the number 13 was a

reference to the Mexican Mafia.

A search of Iniguez’s storage unit revealed numerous household items, including

tables and chairs. There was also mail for Iniguez and a cable bill for Perez.

Officer Moran was shown a photograph of markings made at the South Gate

duplex that included three dots in the shape of a triangle and the word “Slim.” “Slim,”

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Officer Moran said, is another moniker and the three dots refers to “mi vida loca,” or “my

crazy life,” which is a marking commonly used by Hispanic gangs.

Officer Moran also testified regarding a search of a van owned by Sabas Iniguez,

also known as “Junior.” Four large bricks of marijuana, weighing a total of 80 pounds,

were found in the van. Such a large quantity, Officer Moran stated, would be held for

sale, not personal use.

According to Officer Moran, most cocaine and marijuana sold through Southern

California street gangs originate or are funneled through Mexican drug cartels. The most

prominent cartel is the El Chapo Guzman, or Sinaloa, drug cartel, which brings into the

United States 75 to 90 percent of the narcotics that come from Mexico. The drug cartels

work with Hispanic gangs, who distribute the drugs at the street level. In Officer

Moran’s opinion, the drug cartels qualify as criminal street gangs for purposes of Penal

Code section 186.22.4

Officer Moran testified to the significance of violence in the drug cartel culture.

The cartel will use violence to, among other reasons, take care of “internal problems” by

executing members. Officer Moran said that such killings could benefit the cartel in two

ways. First, by eliminating rival internal cells and thereby expanding business

opportunities for the survivors, and second, by boosting the status within the organization

of the person who ordered the killings.

4 All further statutory references are to the Penal Code unless otherwise indicated.

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 The prosecutor presented Officer Moran with a hypothetical situation that

mirrored the facts in this case, including the amount of marijuana and cocaine found in

searches of Perez’s car and Iniguez’s van, a large number of people involved in the

kidnapping of victims, and the method of killing (and attempting to kill) the victims.

Officer Moran testified that the facts were consistent with drug cartel behavior.

B. Police Interviews of Defendants

Rodriguez and Alvarado were interviewed separately by detectives. Videotaped

recordings of the interviews were played to the defendants’ respective juries. Our

summary of the interviews follows.

1. Rodriguez Interview (Heard by Rodriguez Jury Only)

At the relevant time, Rodriguez was living at Alvarado’s residence in Buena

Park.5 On June 22, 2009, Rodriguez and someone known as Skeebie were at Alvarado’s

house in Buena Park when Alvarado received a telephone call from Iniguez, who was

known to Rodriguez as “Tia.” After he concluded the call, Alvarado told Rodriguez and

Skeebie, “let’s go.” Alvarado drove Rodriguez and Skeebie to a park in a truck owned by

“Juan.” There, Alvarado met some men that Rodriguez described as “gangster guys.”

The men spoke of someone who was already at the house and how they planned to “go

get him and tie him up,” and “wait for the money.”

5 Throughout the interview, Rodriguez referred to Alvarado by his nickname,
Lalo.

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 When the interviewing officer asked Rodriguez “why they wanted to kidnap ‘em,”

Rodriguez responded: “I have no idea. They did it for money or something. I don’t

know . . . .” When asked when he learned they wanted to “rip them off,” Rodriguez

replied: “I think when we were getting there . . . .” Rodriguez understood that he would

get some money for being involved, but did not know how much he would get.

Alvarado, Rodriguez, and Skeebie then drove to Iniguez’s residence in South

Gate. Outside the residence, they again met up with the gangsters. Some of the men had

guns. Rodriguez had duct tape. Everyone put on gloves just before entering the

apartment so they would not leave fingerprints. As they entered, people pointed guns at

Romero, pushed him down, and tied him with duct tape and zip ties.6 Rodriguez

participated by holding Romero down and handing to others the duct tape that was used

to bind Romero. Someone used a sock to blindfold Romero.

In addition to Alvarado and Skeebie, Rodriguez identified two of the participants

as “Jose” and “Junior,” but he did not know the four or five other people who were there.

To Rodriguez, it appeared that Alvarado and four “gangster guys” were handling

everything; “they were the ones asking for money [and] planning everything.”

Someone gave Rodriguez a gun that “looked like a 9.” He recalls seeing five guns

in the apartment—an Uzi, two other guns, a “little one,” and a shotgun. Everyone, at one

time or another, was holding a gun; “everybody was switching guns.” Although

6 When Rodriguez initially described the events, he said that the victim was
already tied up when he arrived at the apartment.

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Rodriguez said he never pointed a gun at the victims, he “tapped” the shoulder of one of

the victims once with the gun. He later gave the gun to a “gangster guy.”

The captors had Romero make telephone calls to get others to come to the house.

He could not recall if Romero asked people to bring money.

At some point, someone found a “pretty good size” package of money or drugs

that had been “hidden” in the kitchen. Shortly afterward, someone came to the apartment

and one of the gangsters took the package outside.

Romero remained captive at the apartment throughout the night.

The next day, Rodriguez was in the garage below the apartment where Junior and

Jose were washing a truck when the other two victims came to the apartment. As

Rodriguez came up from the garage and into the apartment, Alvarado, Skeebie, and three

or four gangster guys were grabbing the two new victims and tying them up. Rodriguez

joined in, telling the victims, “don’t move, don’t move,” and handed the other

perpetrators duct tape to secure the socks that were used to blindfold the victims.

Rodriguez had a gun with him at that time. The victims were threatened with being hit or

shot if they moved.

Rodriguez said that people “were telling [the victims] they were gonna ask for

money or something like that” and “they were gonna make some phone call[s] . . . .”

Rodriguez said he was not involved in this and “was just there like watching ‘em.”

At some point, Rodriguez, Skeebie, and “Jose” went to get food and beer for

everyone. He also bought more gloves at a Target store.

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 In the evening of the second day, the three victims were told that they were going

to be taken somewhere and abandoned. They were then moved downstairs and placed in

one of the trucks. Meanwhile, Rodriguez, Skeebie, and a gangster cleaned the apartment

to get rid of fingerprints and “leave nothing behind.” They picked up tape, gloves, and

zip ties.

Rodriguez was told they were going to take the victims somewhere and that he

was needed to give people a ride back. He believed the victims would be let go.

Everyone got into trucks and drove toward Victorville via Interstate 15. Alvarado,

two of the gangsters, and the victims were in the first truck. Rodriguez drove Skeebie in

a second truck. Jose and Junior were in a third truck. Two or three “cholos” were in a

fourth truck. Rodriguez was not sure if the fourth truck followed the others to

Victorville.

Rodriguez parked a short distance away from the truck that carried Alvarado and

the victims. One of the gangsters in the lead truck got into the backseat of Rodriguez’s

truck. Rodriguez saw Alvarado and a second “gangster dude” with guns; he then realized

they were going to shoot the victims. He saw “the flashes” and heard the gunshots, and

knew the victims had been shot. Alvarado and the other shooter got into the truck with

Rodriguez, and Rodriguez drove away. He heard Alvarado and the gangster saying “we

got ‘em,” and someone asked, “what are we gonna do with the gloves[?]”

Rodriguez dropped off the two gangsters at a location off of Interstate 15. He then

drove Alvarado and Skeebie back to Alvarado’s house and went to sleep.

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 The next morning, he was awakened to find Iniguez (the woman who had

originally called Alvarado) and her companion, Roca, in the kitchen. Stacks of money

were on the kitchen table. He was told the money was for him. He received $4,000, or

$5,000. Alvarado received more than that.

The day after the shootings, Alvarado showed Rodriguez the two guns used in the

shootings. One was the “9” that Rodriguez had previously handled in the apartment.

Alvarado also asked Rodriguez if he liked the “new watch” he was wearing. Rodriguez

believed that Alvarado had taken the watch from one of the victims.

2. Interview of Alvarado (Heard by Alvarado Jury Only)7

Alvarado is from Guadalajara, Mexico. He knows Iniguez through Iniguez’s

boyfriend, “Roca,” who is also from Guadalajara. Roca, Iniguez, and Iniguez’s nephew,

“Junior,” sold drugs. Alvarado said that he is in the business of buying and selling cars.

7 During the interview of Alvarado, the interviewing officer placed photographs
of the victims and several suspects on the floor of the room. The videotaped interview of
Alvarado was conducted in Spanish and played at trial. At the time the videotape was
played, the jury was given a transcript of the interview that included both a Spanish
transcription and an English translation. The court informed the jury that the videotape
was evidence, not the transcript.
On appeal, both parties refer to statements made in the interview by citing to the
written transcript only. This not only appears to violate rule 8.204(a)(1)(C) of the
California Rules of Court, but makes our review particularly difficult because Alvarado
frequently referred to individuals by pointing at the photographs while using pronouns;
i.e., without identifying the person by name. The written transcript, which reflects only
the ambiguous pronouns, is therefore of limited value. Our summary of the interview is
based on our observation of the videotaped recording of the interview, aided by the
written transcript.

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 In describing the roles of different participants in this matter, Alvarado explained

that there are different “lines,” or “cartel[s].” The three victims—Martin, Gomez, and

Romero—were from Guadalajara and associated with one line.8 According to Alvarado,

these three were having “problems” with people whom Alvarado described at different

times as “mafia,” “cartels,” people “on top” and “from . . . above,” and people “from

Guadalajara.” These problems included unpaid debts to the people in Guadalajara.

Martin and Gomez (the victims who died) supplied Romero (the victim who

survived) with drugs from Guadalajara. Romero, in turn, supplied drugs to Iniguez and

Alvarado for sale to others. Iniguez and Alvarado would pay Romero for the drugs and

Romero would deliver the money to Martin and Gomez.

In one transaction, Romero, through Iniguez and her companion, Roca, supplied

Alvarado with 22 pounds of “weed” (worth $500 per pound) and one pound of “crystal,”

or “ice.” Alvarado planned to sell the drugs. However, thieves stole the drugs from

Alvarado.9 This created a “problem” for Alvarado because he remained indebted to

Romero, Gomez, and Martin for the price of the drugs. This problem led to threats

against Alvarado and his family.

8Alvarado referred to Romero as “Goyo” and “Chindungis.” Alvarado did not
know the names of the other two victims.

9 In his opening brief, Alvarado states that “[d]uring the course of the interview, it
became clear that these robbers were in fact the named victims in this case.” We
disagree, and find nothing on the pages Alvarado cites to support this statement.

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 At some point, Iniguez and Roca began working with (or “running with”) people,

or “gangsters,” from another line or cartel. These people “had problems”—“mafia

problems,” as Alvarado described them—with Gomez, Martin, and Romero.10 Alvarado

was told to stop associating with Romero, Gomez, and Martin.

Alvarado referred frequently to threats against him and his family and believed

that a “hit” against him had been ordered. These threats appeared to come from both

Romero and Iniguez’s people, and arose because of his debt for the stolen drugs and

Iniguez’s demands that he stop running with Romero.

Two weeks prior to the killings, Iniguez approached Alvarado with a plan to

kidnap the victims, rob them, and kill them. Alvarado’s role was to arrange for everyone

to get together at Iniguez’s house. Iniguez told Alvarado that his participation in the plan

would cancel his debt to Romero. He would also receive an additional sum of money.

Alvarado believed this was a way to, as he put it, “free myself of my problem” and

protect his family. The plan was further discussed at a meeting in a restaurant.

Romero was living with Iniguez at that time. Pursuant to the plan, Iniguez’s

associates—“Junior,” “Jose,” and unidentified gangsters or “cholos”—entered the house,

grabbed Romero, and tied him up. Alvarado was there, but said he was merely

“watching.” Jose and Junior hit Romero because Romero had not paid a debt.

10 In his opening brief, Alvarado states that “Iniguez’s associates had ‘mafia
problems’” and cites to certain pages of the written transcript of Alvarado’s interview.
On the referenced pages, Alvarado refers to “these ones” and “they” as having “mafia
problems.” In the interview, however, Alvarado is pointing to photographs of the three
victims, not Iniguez or her associates.

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 The unidentified “friends” of Junior and Jose had guns. Alvarado initially said he

did not have a gun. Later, however, he admitted handling a gun “just to scare them,” but

explained that he did not threaten anyone with it and did not shoot anyone.

Alvarado explained to Romero that the problem was not with him, but rather

between Iniguez and Roca (on one side) and Martin and Gomez (on the other). He told

Romero that Romero needed to bring “the things,” “like whatever he had, the money or

something.” Romero then told Junior and Jose where money was located. Alvarado saw

others take money that was inside shoeboxes wrapped in plastic. The money was taken

out of the apartment and given to Iniguez and Roca.

Alvarado stayed at the apartment that night with Romero.

The next morning, either Alvarado called the other two victims to come to the

apartment or he and others made Romero call the victims to tell them to come to the

house. At that time, Alvarado knew that Iniguez planned to kill them.

When Gomez and Martin arrived, they were captured, tied up, and initially held in

separate rooms. Alvarado said he sat on the couch while the cholos tied them up. The

victims were blindfolded with rags and tape. Later, the three victims were placed

together in one room.

The victims were told they were being held because of problems they had with

people from Guadalajara. They were talked to “somewhat strongly” about their debt of

approximately $1 million.

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 The victims were made to call someone to authorize Iniguez’s people to pick up

marijuana from an outside location.

That night, the victims were walked out to a Chevrolet truck, where Iniguez, Roca,

Junior, and Jose tied the victims’ feet and hands.

A “cholo” drove the truck that carried the victims. Alvarado, Rodriguez, and

Skeebie were in a different truck, which Rodriguez drove. There was a third truck with

cholos inside.

The initial plan was to drive the victims to Las Vegas. However, along the way,

someone called and told the others to “dump” them in the desert near Victorville.

Alvarado, Rodriguez, and Skeebie remained in a truck as two of the cholos shot

the victims. The shooters then ran to another truck and left. After the shootings,

Alvarado went to his house.

The day after the shootings, Alvarado, Junior, Jose, Skeebie, and the two shooters

met again at a restaurant. They talked about how the victims were shot because they

“had problem[s] with other people . . . . [¶] . . . [¶] . . . [f]rom cartels.” Someone told

them that the incident was reported in the news and that “[s]omeobody [sic] had failed”

because one person survived and was in critical condition.

Sometime after the shootings, Alvarado received $15,000 for his participation in

the crimes.

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 III. DISCUSSION

A. Rodriguez’s Arguments

1. Challenges to the Sufficiency of the Evidence of Robbery as to Conviction for

Kidnapping to Commit Robbery and Robbery Special Circumstance

Rodriguez was convicted of three counts—one for each victim—of kidnapping to

commit robbery. (§ 209, subd. (b)(1).) In addition, with respect to the convictions for

murder, the jury found true the special circumstance allegation that the murders were

committed while engaged in the commission of robbery.11 (§ 190.2, subd. (a)(17)(A).)

On appeal, Rodriguez contends the evidence is insufficient to support the kidnapping

convictions or the robbery special circumstance findings. As we explain below, we hold

that the evidence was sufficient to establish the kidnapping to commit robbery

convictions as to both defendants and the robbery special circumstance finding as to

Alvarado; but conclude that the evidence was insufficient to support the robbery special

circumstance finding as to Rodriguez.

In addressing a challenge to the sufficiency of the evidence supporting a

conviction, we “must review the whole record in the light most favorable to the judgment

below to determine whether it discloses substantial evidence—that is, evidence which is

reasonable, credible, and of solid value—such that a reasonable trier of fact could find the

defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557,

11 The jurors also found true special circumstance allegations that the murders
were committed while engaged in kidnapping under section 190.2, subdivision
(a)(17)(B). Rodriguez does not challenge this finding on appeal.

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578.) “[A]lthough reasonable inferences must be drawn in support of the judgment, [a

reviewing] court may not ‘go beyond inference and into the realm of speculation in order

to find support for a judgment. A [conviction] which is merely the product of conjecture

and surmise may not be affirmed.’ [Citations.]” (People v. Memro (1985) 38 Cal.3d 658,

695.)

Rodriguez focuses his argument on the lack of evidence establishing robbery. He

asserts, for example, that “there is nothing in the record showing that appellant or anyone

else actually received any money or drugs from any of the captives or their associates at

any time.” There was no evidence, for example, that the package of money or drugs that

was removed from the duplex ever belonged to the victims or was taken from their

immediate presence. There was, he concludes, no “actual proof of the robbery beyond a

reasonable doubt.”

The problem with this argument is that the prosecution was not required to

establish that a robbery occurred. Rodriguez was charged with, and convicted of, three

counts of kidnapping to commit robbery in violation of section 209, subdivision (b).12

This crime does not require proof of a completed robbery. (People v. Lewis (2008) 43

Cal.4th 415, 518-519; People v. Curry (2007) 158 Cal.App.4th 766, 779; People v.

Beaumaster (1971) 17 Cal.App.3d 996, 1007 [“a kidnapping for the purpose of robbery

may be committed even when the robbery itself fails”].) As our state Supreme Court

12 Section 209, subdivision (b)(1) provides, in part: “Any person who kidnaps or
carries away any individual to commit robbery . . . shall be punished by imprisonment in
the state prison for life with the possibility of parole.”

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explained: “A defendant may be convicted of kidnapping for robbery even if the robbery

is not completed. [Citations.] The defendant need only have the specific intent to

commit a robbery when the kidnapping begins. [Citation.] Robbery, on the other hand,

requires that the defendant actually gain possession of the victim’s property and take it

away. [Citation.]” (People v. Lewis, supra, at pp. 518-519; see also People v. Davis

(2005) 36 Cal.4th 510, 565-566.)13

It does not appear that Rodriguez is arguing that the evidence was insufficient to

establish that he, or the perpetrators he aided and abetted, had the intent to commit

robbery when the kidnapping began. If he is making that argument, we reject it.

Rodriguez told the interviewing detectives that he heard Alvarado and the gangsters at

the park planning to tie someone up and “wait for the money.” He learned of the plan to

“rip them off” shortly before they arrived at Iniguez’s home. After Romero is tied up, the

perpetrators began asking him questions about money and telling him to make telephone

calls. Romero did call people to come to the apartment. When the two later victims

arrived the next day and were tied up, the perpetrators sat them on a couch and, according

to Rodriguez, told them they were “gonna ask for money or something like that . . . .”

Although it is not perfectly clear what Rodriguez heard the perpetrators tell the victims or

13 Kidnapping to commit robbery, or aggravated kidnapping as it is sometimes
called, also requires movement of the victim “beyond that merely incidental to the
commission of, and increases the risk of harm to the victim over and above that
necessarily present in, the intended underlying offense.” (§ 209, subd. (b)(2).)
Rodriguez does not challenge the sufficiency of the evidence supporting this asportation
requirement.

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what Romero said in his telephone calls to others, his statements are sufficient to permit

the inference that the perpetrators had the intent to rob the victims (or someone) of

“money or something” at the time they were first seized.14 (See People v. Curry, supra,

158 Cal.App.4th at p. 779 [evidence must show that the defendants “intended to commit

the robbery at the time they held or detained” the kidnapping victim]; People v. Smith

(1963) 223 Cal.App.2d 225, 234 [the kidnapper must intend “to commit robbery at the

time of the original seizing”], overruled on another point in People v. Hood (1969) 1

Cal.3d 444, 450.)

Rodriguez argues that a “plausible explanation” for the killings is that the victims

did not deliver any money or drugs. He concludes that “when the captors were not

successful in getting what they wanted from their captives, they sought payback.” This

argument assumes that the perpetrators kidnapped the victims with the intent to get

money or drugs from them, but were unsuccessful. Although this explanation supports

Rodriguez’s assertion that there was no completed robbery, it also supports the more

pertinent point that the perpetrators’ intent at the outset was to rob someone of money or

drugs. Thus, if we accept Rodriguez’s explanation that the victims were taken to the

desert and shot because the intended robbery was unsuccessful, we would have to

14 Although it is necessary to prove the defendant had the intent to commit
robbery when the kidnapping began, it is not necessary to prove that the perpetrators had
the intent to rob the person who was kidnapped. (People v. Davis, supra, 36 Cal.4th at p.
566, fn. 19.) That is, a defendant could be convicted under section 209, subdivision (b),
of kidnapping one person for the purpose of robbing another. (People v. Davis, supra, at
p. 566, fn. 19.)

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conclude that the perpetrators had the intent to commit robbery at the time the kidnapping

began.15

Under a separate heading, Rodriguez contends that, if a robbery did occur, the

convictions for kidnapping to commit robbery must be reversed because the robbery of

the package found in the kitchen was completed prior to the asportation of the victims to

the place where they were shot. The argument has the same problem as Rodriguez’s first

argument: He incorrectly assumes that a robbery must occur in order for him to be

convicted of kidnapping to commit robbery. As discussed above, it does not. In order to

be convicted of kidnapping to commit robbery, “[t]he defendant need only have the

specific intent to commit a robbery when the kidnapping begins.” (People v. Lewis,

supra, 43 Cal.4th at pp. 518-519.) Rodriguez does not dispute that there is sufficient

evidence of kidnapping; and we conclude there is sufficient evidence that he had the

requisite intent to commit robbery when the kidnappings began.

We reach different conclusions with respect to the robbery special circumstance

findings as to Rodriguez and Alvarado. Under section 190.2, subdivision (a)(17)(A), the

penalty for first degree murder is death or life in prison without the possibility of parole if

the following special circumstance is found true: “The murder was committed while the

15 Under his first argumentative heading, Rodriguez asserts that there is
insufficient evidence of robbery for purposes of the kidnapping to commit robbery
convictions and for the robbery special circumstance findings. Under his second
argumentative heading, he asserts that in the absence of evidence of a robbery, the
kidnapping to commit robbery convictions and the special circumstance findings cannot
stand. Because the second argument assumes the success of the first argument, which we
have rejected, it fails as well.

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defendant was engaged in, or was an accomplice in, the commission of, attempted

commission of, or the immediate flight after committing, or attempting to commit . . . .

[¶] . . . [r]obbery in violation of Section 211 or 212.5.” Although the statute permits a

true finding of the robbery special circumstance based on the attempted commission of

robbery, as the Attorney General points out, the jurors in this case were instructed that the

People must prove the defendants committed robbery; they were not told they could find

the robbery special circumstance based on an attempted robbery.

We first address the sufficiency of the evidence presented to Rodriguez’s jury.

Although the evidence is sufficient to find that the perpetrators had the intent to commit

robbery when the kidnapping began (as explained above), there is no substantial evidence

in the record (as to Rodriguez) that the murders were committed while engaged in the

commission of robbery, or even that a robbery occurred at all. The Attorney General

points to the evidence of the package of money or drugs found in the kitchen of the

apartment and taken away by one of the gangsters. There is nothing in the evidence

presented to the Rodriguez jury that indicates that the package had been taken from

anyone. The interviewing detective characterized the package as having been “found” in

the residence—a characterization Rodriguez did not dispute. Rodriguez stated only that

it had been “hidden somewhere in the kitchen,” and said nothing about who had hidden it

or how it was found. As for who lived at the residence, Rodriguez referred to the

apartment as the home of “Tia,” that is, Iniguez. Prescription medication was found at

the apartment belonging to Iniguez, and mail was found there addressed to Ms. Iniguez,

21
Romero Junior Cruz, and Jose Perez. There is nothing to connect any of the victims with

possession of the apartment, let alone the package hidden in the kitchen.

At one point in the interview, the following took place:

“[DETECTIVE]: . . . did you ever find out how much money they got from these

guys?

“RODRIGUEZ: I have no idea the exact, the exact amount.

“[DETECTIVE]: Okay what did you think it was?

“RODRIGUEZ: I have no idea, it looked like a pretty good pack ‘cause I told you

at first, I don’t know if it was drugs or money[,] but it was a pretty big pack.”

This colloquy arguably suggests that the package of drugs or money found in the

kitchen was taken from the victims. Rodriguez’s statement, however, is a response to the

interviewer’s leading question, which assumed that the package found in the kitchen

contained money taken “from these guys.” When viewed in this context and in the light

of the entire interview, this response does not constitute substantial evidence that the

package of drugs or money was taken from the victims.

Because there is no substantial evidence presented to the Rodriguez jury that the

murders were committed while the perpetrators were engaged in the commission of a

robbery, we reverse the true finding of that special circumstance.16

16 The Attorney General argues that if the evidence is insufficient to support the
jury’s finding that the murders were committed while the perpetrators were engaged in
robbery, we may reduce the special circumstance finding to murder in the course of an
attempted robbery. There is authority for doing so. (See § 1181, cl. (6); see, e.g., People
v. Martinez (1999) 20 Cal.4th 225, 241.) However, the Attorney General does not
[footnote continued on next page]

22
 The evidence presented to the Alvarado jury is sufficient to support the robbery

special circumstance finding. Iniguez told Alvarado of the plan to rob and kill the

victims. After Romero was captured, Alvarado told him “to give them the money,” or

“the things.” When the interviewing officer asked Alvarado if Romero gave him the

money, Alvarado responded: “Yes, he gave the money to them, and to the other guys.”

Finally, unlike the evidence against Rodriguez, the Alvarado jury heard Alvarado’s

statement that Romero was living with Iniguez (i.e., the place from where the packages of

money were taken) when the crimes occurred. The Alvarado jury could reasonably infer

from these statements that Romero turned over to his captors money or things in his

possession by means of force or fear. (See §§ 211, 190.2, subd. (a)(17).) There was thus

sufficient evidence to support the robbery special circumstance as to Alvarado.

2. Challenge to the Murder Convictions Based on Insufficiency of the Evidence to

Support Robbery Felony-Murder Theory

Rodriguez’s jury was instructed on multiple theories of murder, including robbery

felony murder and kidnapping felony murder. On appeal, Rodriguez argues that because

the evidence is insufficient to support robbery felony murder and the record does not

disclose the theory upon which the verdict rested, the conviction cannot stand. We

disagree.

[footnote continued from previous page]
explain how the evidence establishes that the murders were committed during an
attempted robbery.

23
 As we explained in the preceding part, we agree with Rodriguez that the evidence

presented to his jury is insufficient to establish that the perpetrators committed robbery.

Thus, there are insufficient facts in the record to support a robbery felony-murder theory

as to Rodriguez’s murder verdicts. However, Rodriguez does not dispute that the

evidence is sufficient to support the alternative theory of kidnapping felony murder.

“[W]hen the prosecution presents its case to the jury on alternate theories, some of

which are legally correct and others legally incorrect, and the reviewing court cannot

determine from the record on which theory the ensuing general verdict of guilt rested, the

conviction cannot stand.” (People v. Green (1980) 27 Cal.3d 1, 69.) However, when, as

here, the inadequacy of proof as to one theory is purely factual, “reversal is not required

whenever a valid ground for the verdict remains, absent an affirmative indication in the

record that the verdict actually did rest on the inadequate ground.” (People v. Guiton

(1993) 4 Cal.4th 1116, 1129.) We must “affirm the judgment unless a review of the

entire record affirmatively demonstrates a reasonable probability that the jury in fact

found the defendant guilty solely on the unsupported theory.” (Id. at p. 1130.)

Here, the jury found true the special circumstance allegation that the murders were

committed while the defendants were engaged in kidnapping, and Rodriguez does not

challenge that finding. Moreover, there is ample evidence to support a kidnapping

felony-murder theory. The murder victims were bound with zip ties and duct tape while

they were in the South Gate duplex. They were then transported to a remote desert

location where, still bound with zip ties, they were shot and killed. In light of the

24
overwhelming evidence supporting the theory of kidnapping felony murder, it is not

reasonably probable that the jury’s murder verdicts were based solely on the unsupported

theory of robbery felony murder.

Even if the inadequacy of the robbery felony-murder theory is a legal inadequacy,

as Rodriguez contends, the jury’s kidnapping special circumstance finding shows the jury

necessarily concluded the killing was committed in the course of the kidnapping. (Cf.

People v. Morgan (2007) 42 Cal.4th 593, 613.) “‘Thus, we know that the first degree

murder verdict rested on at least one correct theory. [Citations.]’ [Citation.]” (Ibid.)

The murder conviction, therefore, must stand.

B. Alvarado’s Arguments

1. Admissibility of Gang Expert Testimony

Alvarado argues that Officer Moran’s testimony regarding the El Chapo Guzman

cartel was inflammatory and irrelevant and its admission into evidence violated his rights

to due process and a fair trial. Alvarado does not appear to challenge any particular

testimony by Officer Moran. Rather, he asserts more generally that “[Officer] Moran’s

extensive testimony about [the El Chapo Guzman] cartel was irrelevant and prejudicial”

because Alvarado “was never connected to the cartel.”

We review challenges to the admissibility of evidence, including gang evidence,

under the abuse of discretion standard. (People v. Albarran (2007) 149 Cal.App.4th 214,

224-225 (Albarran).) The appellant has the burden of establishing an abuse of discretion.

(Id. at p. 225.)

25
 The threshold requirement of relevance is met if Officer Moran’s testimony

regarding the El Chapo Guzman cartel has a tendency in reason to prove any disputed

material fact. (Evid. Code, § 210.) In light of the gang-related allegations made against

Alvarado, such facts include whether Alvarado actively participated in a criminal street

gang or committed his crimes for the benefit of, at the direction, or in association with a

criminal street gang. (§§ 186.22, subds. (a), (b), 190.2, subd. (a)(22).) Alvarado does not

appear to dispute that the El Chapo Guzman cartel satisfies the statutory definition of a

criminal street gang. The relevance issue thus turns on whether Officer Moran’s

testimony has a tendency in reason to prove that Alvarado was actively participating in

or, in the commission of his crimes, acted for the benefit of, at the direction of, or in

association with, the El Chapo Guzman cartel.

Alvarado emphasizes that there was no evidence that he was a member of the El

Chapo Guzman cartel or any gang. These assertions are misplaced because the gang

allegations in this case do not require proof that Alvarado was a gang member. The

substantive gang crime requires active participation in a gang, not gang membership. As

our state Supreme Court recently stated: “A person who is not a member of a gang, but

who actively participates in the gang, can be guilty of violating section 186.22[,

subdivision] (a).” (People v. Rodriguez (2012) 55 Cal.4th 1125, 1130; accord, People v.

Johnson (2013) 57 Cal.4th 250, 259.) As for the gang enhancement, although the

defendant must commit the crime for the benefit of, at the direction of, or in association

with a criminal street gang and with the intent to promote, further, or assist criminal

26
conduct by gang members, there is no requirement that he be a member of such a gang.

(See People v. Bragg (2008) 161 Cal.App.4th 1385, 1402; In re Ramon T. (1997) 57

Cal.App.4th 201, 207; see also People v. Albillar (2010) 51 Cal.4th 47, 67-68 [gang

enhancement “does not depend on membership in a gang at all”].) Nor does the gang

special circumstance require membership in a gang. (§ 190.2, subd. (a)(22).) Thus, the

issue is not whether Alvarado was a member of the El Chapo Guzman cartel, but whether

he actively participated in or committed his crimes for the benefit of, at the direction of,

or in association with a criminal street gang. Evidence regarding the gang is relevant to

these issues regardless of whether Alvarado was a member.

There is ample evidence to support inferences that the crimes committed against

Gomez, Martin, and Romero were related to a Mexican drug cartel. In his police

interview, Alvarado referred to the drug sellers he was working with as being part of

“lines,” “cartels,” and the “mafia.” Romero, Martin, and Gomez, he said, were connected

with one line or cartel. Alvarado and Iniguez had been working with Romero to sell

drugs supplied by Martin and Gomez from Guadalajara. The “mafia” and “people from

Guadalajara,” however, had problems with Romero, Martin, and Gomez, including the

failure to pay a debt. At some point, Iniguez began working with people from another

line or cartel and told Alvarado to stop associating with Romero, Gomez, and Martin.

Because of the problems Romero, Gomez, and Martin had with people “from . . . above,”

a plan was devised to kidnap and kill them. Alvarado had a particular role to play in this

plan—to arrange for the victims to get together in one place. Such evidence supports

27
reasonable inferences that the crimes committed against the victims were planned,

directed, and perpetrated by and for people connected with a Mexican drug cartel, and

that Alvarado committed his crimes for the benefit of, at the direction of, or in association

with such people.

If Alvarado had identified the group or cartel to which Iniguez and the other

participants were associated, there would be little doubt that a qualified gang expert could

testify as to the named cartel’s culture, habits, primary purposes, use of violence, and the

types of crimes it commits. (See, e.g., People v. Gonzalez (2006) 38 Cal.4th 932, 944;

People v. Gardeley (1996) 14 Cal.4th 605, 619-620; People v. Gutierrez (2009) 45

Cal.4th 789, 820.) However, Alvarado did not identify the gang or cartel by name in his

interview. He referred only vaguely to lines, cartels, the mafia, and people in

Guadalajara. The prosecution’s gang expert, therefore, had the additional task of

determining and opining as to the identity of the gang involved in the crimes.

In Officer Moran’s opinion, the facts regarding the crimes in this case are

consistent with the drug cartel behavior, and the most prominent Mexican drug cartel is

the El Chapo Guzman drug cartel, a criminal street gang. Officer Moran’s opinions are

plainly relevant to the case because Alvarado described his participation in the plan to

kidnap and kill the victims and indicated that the crimes were carried out on behalf of

(and against people associated with) one or more drug cartels with connections to “people

in Guadalajara”; Officer Moran’s testimony simply links participants in the plan to a

particular criminal street gang, viz., the El Chapo Guzman cartel.

28
 Alvarado relies on People v. Covarrubias (2011) 202 Cal.App.4th 1. In

Covarrubias, the defendant was arrested after United States border agents found 193

pounds of marijuana in a truck the defendant had driven into the United States from

Mexico. (Id. at pp. 8-9.) The marijuana was found inside bags of roofing shingles. (Id.

at p. 8.) The defendant claimed he was a day laborer on his way to see about a roofing

job. (Id. at p. 9.) An issue at trial was whether the defendant had knowledge of the

marijuana in his truck. A customs enforcement special agent testified as an expert on the

structure and practices of drug trafficking organizations and their use of “mules,” i.e.,

individuals who transport drugs. (Id. at pp. 4, 10.) He opined that a hypothetical person

under the circumstances present in that case would have knowledge of the marijuana in

the truck. (Id. at p. 12.) The Court of Appeal held that the expert’s testimony was

improper because the prosecution “presented no evidence associating” the defendant with

drug trafficking organizations. (Id. at p. 16.)

Covarrubias is easily distinguished. In that case, the defendant was alone in his

truck when the alleged crime was committed. In his postarrest interview with

government agents, the defendant gave no indication that anyone else was involved with

the transportation of what he ostensibly believed were packages of shingles. (People v.

Covarrubias, supra, 149 Cal.App.4th at p. 9.) There was, as the court explained, simply

no evidence connecting him to any drug trafficking organization. (Id. at p. 16.) Here, by

contrast, jurors can easily infer from Alvarado’s statements that the crimes committed

against the victims in this case were perpetrated by, for, and at the direction of, people

29
associated with at least one Mexican drug cartel or “mafia” organization. As discussed

above, the fact that Alvarado was not a member of that organization does not mean that

evidence regarding the organization was not relevant to the gang charges in this case.

Although expert testimony regarding criminal street gangs is generally admissible

in cases involving gang allegations, “trial courts should carefully scrutinize such evidence

before admitting it” because it “may have a highly inflammatory impact on the jury.”

(People v. Williams (1997) 16 Cal.4th 153, 193.) Officer Moran’s testimony regarding

the El Chapo Guzman cartel was not highly inflammatory. Alvarado points to Officer

Moran’s testimony regarding the head of the El Chapo Guzman cartel, Joaquin El Chapo

Guzman. Officer Moran testified, for example, that Guzman had been arrested in 1993 in

connection with the killing of a bishop in Guadalajara and sentenced to seven years in

prison for drug trafficking and money laundering and later escaped from prison through a

laundry cart. Officer Moran further stated that Guzman was indicted by the United States

federal government for drug trafficking and sentenced to 50 years. Officer Moran also

testified that violence is used by Mexican drug cartels “on both sides of the border . . . to

impose their will whether it be fighting for territory or taking out somebody that might be

threatening their organization . . . .”

Although the testimony regarding Guzman’s crimes and power appear to have

little probative value, the comments were brief and not unduly prejudicial or

inflammatory, particularly in light of the manner in which the crimes in this case were

committed. As for the testimony regarding the use of violence by Mexican drug cartels,

30
such evidence was highly probative of the violent nature and motives of the cartels. (See,

e.g., People v. Gutierrez, supra, 45 Cal.4th at p. 820.) Such evidence had some tendency

in reason to show that the execution style shootings in this case were carried out by

people connected with such a cartel. The probative value was not substantially

outweighed by any undue prejudice.

Alvarado relies on Albarran for support on this point. In that case, the accused

and an accomplice fired gunshots at the front of an inhabited house. (Albarran, supra,

149 Cal.App.4th at pp. 217-218.) The defendant was not charged with the substantive

gang crime. (Id. at p. 219.) Although the jury found certain gang enhancement

allegations true, the trial court subsequently granted the defendant’s new trial motion as

to the gang enhancement allegations. (Id. at p. 222.) On appeal, the defendant asserted

that the trial court, having found the gang evidence was insufficient to prove the gang

allegations, should have also concluded the gang evidence was irrelevant and unduly

prejudicial as to the underlying substantive crimes. (Id. at pp. 222-223.) The Court of

Appeal agreed. As the court stated, the “prosecution presented a panoply of

incriminating gang evidence,” including lengthy testimony about other gang members,

“the wide variety of crimes they had committed,” and “threats to kill police officers.”

(Id. at pp. 227-228.) This and other gang evidence, the court concluded, “had little or no

bearing on any other material issue relating to [the defendant’s] guilt on the charged

crimes and approached being classified as overkill.” (Id. at p. 228, fn. omitted.) The

court further explained that the gang evidence “had no legitimate purpose in this trial”

31
and that “there was a real danger that the jury would improperly infer that whether or not

[the defendant] was involved in these shootings, he had committed other crimes, would

commit crimes in the future, and posed a danger to the police and society in general and

thus he should be punished.” (Id. at p. 230.)

In contrast to the situation in Albarran, the present case involves a substantive

gang crime count and gang special circumstance allegations, as well as the gang

enhancement. Unlike the isolated shooting in Albarran, in which there was little

evidence connecting the crime to the defendant’s gang, there is ample evidence that the

crimes in this case were committed pursuant to a Mexican drug cartel’s plan to kill the

victims because the victims were having “problems” with the cartel. Evidence regarding

the cartels was thus highly relevant. Moreover, Officer Moran’s testimony appears to be

more limited, brief, and less inflammatory in comparison with the extensive gang

testimony given in Albarran. Because the gang evidence in this case was both more

relevant to the issues and less prejudicial than in Albarran, that case does not control the

decision here.

2. Sufficiency of the Evidence to Support the Gang-related Verdicts

Alvarado contends the evidence is insufficient to support the conviction on the

substantive gang crime (§ 186.22, subd. (a)), and the true findings on the gang

enhancement and special circumstance allegations (§§ 186.22, subd. (b), 190.2, subd.

(a)(22)).

32
 Alvarado asserts that the prosecution was required to prove that, as to each gang-

related charge, he “was an ‘active member’ of a criminal gang organization.”17 He points

out that “there was no evidence presented that [he] was a member of a drug trafficking

cartel.” As discussed in the preceding part, this argument is misplaced; active

membership in a gang is not an element of the substantive gang crime, the gang

enhancement, or the gang special circumstance. The absence of evidence that Alvarado

was a gang member, therefore, does not mean there is insufficient evidence to support the

conviction and findings.

Although Alvarado need not be a member of a gang, the substantive gang crime

and the gang special circumstance require proof that he actively participated in a criminal

street gang. (§§ 186.22, subd. (a), 190.2, subd. (a)(22).) “Active participation” in this

sense means “involvement with a criminal street gang that is more than nominal or

passive.” (People v. Castenada (2000) 23 Cal.4th 743, 747.) Here, Alvarado testified

regarding Iniguez’s and the three victims’ involvement with selling drugs and their

connection to “lines,” “cartels,” the “mafia,” and “people from Guadalajara.” This

evidence, along with Officer Moran’s expert testimony about Mexican drug cartels, is

sufficient to support reasonable inferences that Iniguez, the victims, and others involved

in the subject crimes were closely connected with a criminal street gang, viz., the El

Chapo Guzman cartel. Alvarado’s admissions that he was personally involved in the

17 Alvarado placed “active member” in quotation marks and cited to section
186.22, subdivision (b)(1). The phrase, however, does not appear in that statute.

33
distribution of drugs supplied through Romero and in the planning and perpetration of the

crimes in this case easily support the conclusion that his participation in the gang was

more than nominal or passive.

Alvarado further asserts that the prosecution was required to prove that he

“committed a felony ‘for the benefit of any criminal street gang.’” Alvarado is quoting

the gang enhancement statute, section 186.22, subdivision (b). This, too, however, is not

entirely accurate. The prosecution was required to prove that he committed a felony

either “for the benefit of, at the direction of, or in association with any criminal street

gang.” (§ 186.22, subd. (b)(1), italics added.) That is, even if the crimes were not for the

benefit of the gang, Alvarado is still liable under the statute if they were committed at the

direction of or in association with a criminal street gang.

Alvarado explained that Iniguez, who was associated with one line or cartel,

approached him with a plan to kidnap and kill the victims. As discussed above, it can be

inferred from Alvarado’s statements that the victims were being killed because of a debt

they owed to, or “mafia problems” they had with, people “on top” and “from

Guadalajara.” As part of this plan, Alvarado was assigned the task of getting the victims

together at Iniguez’s house. He understood that his participation would cancel his debt to

Romero as well as earn him an additional sum of money. These statements (combined

with Officer Moran’s testimony identifying Iniguez’s and/or Romero’s drug cartel as the

El Chapo Guzman cartel, a criminal street gang) provide ample support for the findings

that Alvarado acted at the direction of and in association with a criminal street gang.

34
 Finally, Alvarado contends the evidence was insufficient to establish the intent

element of the gang enhancement; namely, that he acted with the “specific intent to

promote, further, or assist in any criminal conduct by gang members.” (§ 186.22, subd.

(b)(1).) We disagree.

“‘[T]he scienter requirement in section 186.22[, subdivision] (b)(1) . . . applies to

any criminal conduct, without a further requirement that the conduct be “apart from” the

criminal conduct underlying the offense of conviction sought to be enhanced.’ [Citation.]

‘[I]f substantial evidence establishes that the defendant intended to and did commit the

charged felony with known members of a gang, the jury may fairly infer that the

defendant had the specific intent to promote, further, or assist criminal conduct by those

gang members.’ [Citation.]” (People v. Livingston (2012) 53 Cal.4th 1145, 1171.)

Here, Alvarado told the officers he knew that Iniguez and the victims were

connected with one or more cartels. He also referred to the accomplices whose names he

did not know as “gangsters.” The jury could thus reasonably infer that Alvarado knew

the people he was working with were members of a gang. Because he intended to and

did commit the charged felonies along with such known members of a gang, the jury

could further infer that he had the requisite intent.

3. Incomplete Instruction on the Natural and Probable Consequences Doctrine

Alvarado contends the court erred by instructing the jury with language that

alluded to, but did not explain how to apply, the natural and probable consequences. This

error, he contends, was prejudicial and deprived him of his rights to effective assistance

35
of counsel, due process, and a unanimous jury verdict. We conclude that while the

challenged instruction should not have been given, the error was harmless.

(a) Background

At trial, to prove first degree murder and attempted murder, the prosecutor relied

on the theory, among others, that Alvarado was an accomplice who aided and abetted the

perpetrators of the crimes. Alvarado and the Attorney General agree that the prosecutor

did not rely on the natural and probable consequences doctrine and neither side requested

an instruction on that doctrine.

Regarding aiding and abetting, the court gave the following instruction based on

CALCRIM No. 400: “A person may be guilty of a crime in two ways. One, he or she

may have directly committed the crime. I will call that person the perpetrator. Two, he

or she may have aided and abetted a perpetrator, who directly committed the crime. A

person is guilty of a crime whether he or she committed it personally or aided and abetted

the perpetrator.”

In addition to the foregoing language, CALCRIM No. 400 includes, in brackets,

the following language: “Under some specific circumstances, if the evidence establishes

aiding and abetting of one crime, a person may also be found guilty of other crimes that

occurred during the commission of the first crime.” The Bench Notes for CALCRIM No.

400 state that this bracketed language is to be given “[i]f the prosecution is also relying

on the natural and probable consequences doctrine . . . .” (Bench Notes to CALCRIM

No. 400 (2011) p. 167.) In that event, the court should also instruct as to the natural and

36
probable consequences doctrine by giving either CALCRIM No. 40218 or 403,19 which

provide instructions on how to apply the natural and probable consequences doctrine in

different situations. (Bench Notes to CALCRIM No. 400, supra, p. 168.) In particular,

the jury is instructed that it must decide whether the defendant is guilty of a specified

18 CALCRIM No. 402 provides: “The defendant is charged in Count[s] _____
with ___________ and in Counts[s] _____ with ___________
.
“You must first decide whether the defendant is guilty of ___________ . If you find the defendant is guilty of this crime, you must then decide
whether (he/she) is guilty of ___________ .
“Under certain circumstances, a person who is guilty of one crime may also be
guilty of other crimes that were committed at the same time.
“To prove that the defendant is guilty of ___________ , the People must prove that:
“1. The defendant is guilty of ___________ ;
“2. During the commission of ___________ a
coparticipant in that ___________ committed the crime of
___________ ; [¶] AND
“3. Under all of the circumstances, a reasonable person in the defendant’s position
would have known that the commission of ___________ was
a natural and probable consequence of the commission of the ___________ .”

19 CALCRIM No. 403 provides: “[Before you may decide whether the defendant
is guilty of ___________ , you must decide whether (he/she)
is guilty of ___________ .]
“To prove that the defendant is guilty of ___________ , the People must prove that:
“1. The defendant is guilty of ___________ ;
“2. During the commission of ___________ a
coparticipant in that ___________ committed the crime of
___________ ; [¶] AND
“3. Under all of the circumstances, a reasonable person in the defendant’s position
would have known that the commission of the ___________
was a natural and probable consequence of the commission of the ___________ .”

37
“target” offense, whether the charged offense was committed during the commission of

the target offense, and whether a reasonable person in the defendant’s position would

have known that the commission of the charged offense was a natural and probable

consequence of committing the target offense. (CALCRIM Nos. 402, 403.)

Here, the court instructed the jury with the bracketed portion of CALCRIM No.

400, despite the fact that the prosecution was not relying on the natural and probable

consequences doctrine. It did not further instruct on that doctrine or give either

CALCRIM No. 402 or 403. After giving the bracketed portion of CALCRIM No. 400,

the court proceeded to give CALCRIM No. 401, which sets forth the requirements

regarding aiding and abetting liability.20

As the Attorney General concedes, giving the bracketed language in CALCRIM

No. 400 when the natural and probable consequences doctrine was not relied on at trial

and without the clarifying instructions under CALCRIM No. 402 or 403 was error. (See

People v. Rivas (2013) 214 Cal.App.4th 1410, 1433 (Rivas).) The issue is whether the

error was prejudicial.

20 CALCRIM No. 401 provides: “To prove that the defendant is guilty of a crime
based on aiding and abetting that crime, the People must prove that:
“1. The perpetrator committed the crime;
“2. The defendant knew that the perpetrator intended to commit the crime;
“3. Before or during the commission of the crime, the defendant intended to aid
and abet the perpetrator in committing the crime; [¶] AND
“4. The defendant’s words or conduct did in fact aid and abet the perpetrator’s
commission of the crime.”

38
 (b) Prejudice

“‘With regard to criminal trials, “not every ambiguity, inconsistency, or deficiency

in a jury instruction rises to the level of a due process violation. The question is

‘“whether the ailing instruction . . . so infected the entire trial that the resulting

conviction violates due process.”’ [Citation.] ‘“[A] single instruction to a jury may not

be judged in artificial isolation, but must be viewed in the context of the overall charge.”’

[Citation.] If the charge as a whole is ambiguous, the question is whether there is a

‘“reasonable likelihood that the jury has applied the challenged instruction in a way” that

violates the Constitution.’” [Citation.]’ [Citations.]” (People v. Letner and Tobin (2010)

50 Cal.4th 99, 182 (Letner).)

Here, Alvarado argues that giving the bracketed language from CALCRIM No.

400 without clarifying instructions “allowed the jury to create homespun theories of

culpability as to each of the charged crimes . . . .” A similar argument was made and

rejected in Rivas, supra, 214 Cal.App.4th 1410.21 As in this case, the trial court in Rivas

instructed the jury with the language in the bracketed portion of CALCRIM No. 400, but

did not give the clarifying instruction under CALCRIM No. 403. (Rivas, supra, at p.

1432.) The defendant asserted that the error violated his rights under both state law and

the federal Constitution. (Id. at p. 1431.) By alluding to the natural and probable

consequences doctrine without clarifying it, the defendant argued, “the jury was invited

21 Rivas was decided in March 2013, after the briefs in the present case were
filed.

39
to create avenues on its own, beyond those on which it was instructed elsewhere, to find

him guilty of the crimes of which it convicted him.” (Id. at p. 1432.)

Although the Rivas court held that the use of the bracketed language was error, it

concluded that the error was harmless. The prosecution, the court explained, did not rely

on the natural and probable consequences doctrine to prove the defendant’s guilt. (Rivas,

supra, 214 Cal.App.4th at p. 1434.) The bracketed language was, therefore, “superfluous

and, without clarification through CALCRIM No. 403, meaningless.” (Id. at p. 1433.)

Giving the superfluous instruction was harmless, the court concluded, “‘because there

[was] no reasonable likelihood the jury misunderstood or misapplied the law.’” (Id. at p.

1434.) The court therefore rejected the defendant’s constitutional and state law claims.

The Rivas court relied heavily on the state Supreme Court’s decision in Letner,

supra, 50 Cal.4th 99. In Letner, the trial court gave the jury an instruction regarding the

natural and probable consequences doctrine without identifying the “target” offenses.

(Id. at p. 183.) As such, the instructions were incomplete, ambiguous, and erroneous.

(Id. at pp. 183-184.) The defendant argued that the instruction could have led the jury to

indulge in unguided speculation concerning the unspecified target offenses. (Id. at p.

184.) The issue, however, was not what the jury could have done, but whether there was

“a reasonable likelihood that the jury did so.” (Ibid.) The court concluded that there was

no such likelihood and that the error was therefore harmless. (Ibid.)

The reasoning in Rivas and Letner applies here. As Alvarado concedes, the

prosecution did not rely on the natural and probable consequences doctrine. Although the

40
use of the bracketed language from CALCRIM No. 400 was superfluous and therefore

erroneous, it is not reasonably likely that the jury misunderstood or misapplied the law.

Moreover, because the jury found true the special circumstance allegation that Alvarado

committed the murders while engaged in the commission of robbery and kidnapping, it is

clear that they were persuaded by the felony-murder theory of first degree murder. Under

that theory, the killing of the victims constitutes first degree murder without regard to

whether the killings were a natural and probable consequence of the felony. (People v.

Escobar (1996) 48 Cal.App.4th 999, 1018-1019.) For all these reasons, the instructional

error was harmless.

Alvarado further argues that the use of the bracketed language amounted to “state

interference” with his right to effective assistance of counsel. He contends that

instructing the jury with the bracketed language undercut his counsel’s tactical decisions

by injecting a new theory of culpability. He relies heavily on Sheppard v. Rees (9th Cir.

1990) 909 F.2d 1234. In Sheppard, the defendant was charged with one count of murder

and the use of a firearm. (Id. at p. 1235.) The prosecutor’s theory during trial was that

the defendant’s killing of the victim was premeditated and deliberate following a dispute

regarding a drug debt. (Ibid.) Following the close of the case to evidence and the initial

submission of jury instructions, the prosecutor requested that the jury also be instructed

on robbery and felony murder. (Ibid.) Defense counsel “immediately” and “strenuously”

objected to the proposed instruction, stating: “‘It never occurred to me that the People

would ever go forward on a theory of felony-murder . . . .’” (Ibid.) The court gave the

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felony-murder instruction and the prosecutor argued that theory to the jury. (Id. at p.

1236.)

On appeal from the denial of his petition for writ of habeas corpus, the defendant

argued that he did not receive adequate notice to enable him to prepare a proper defense

to the prosecution’s felony-murder theory. Before the Ninth Circuit, the State of

California conceded the point, stating that “‘a pattern of government conduct

affirmatively misled the defendant, denying him an effective opportunity to prepare a

defense.’” (Sheppard v. Rees, supra, 909 F.2d at p. 1236.) The defendant, the state

admitted, “‘“was ambushed.”’” (Ibid.) The Ninth Circuit reversed, concluding that the

prosecutor’s conduct was “inconsistent with elementary due process” and had denied the

defendant “the fundamental right to a fair trial.” (Id. at p. 1238.)

Sheppard has no application here. First, unlike the defendant in Sheppard,

Alvarado did not object to the challenged instruction at trial or move to reopen the case to

introduce evidence on what he now perceives as a new prosecution theory. Alvarado has,

therefore, forfeited this argument on appeal. (See People v. Cole (2004) 33 Cal.4th 1158,

1204-1205; People v. Kipp (2001) 26 Cal.4th 1100, 1131-1132.) Second, as discussed

above, in contrast to the prosecutor’s use of the felony-murder instruction in Sheppard,

the prosecutor in this case did not rely on the natural and probable consequences doctrine

or the challenged instruction. There was, in short, no new theory of culpability to which

Alvarado needed to respond; Alvarado was not ambushed in any way. Thus, even if the

claim was not forfeited, it is without merit.

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 4. Failing to Instruct as to Target Offenses for Which Second Degree Murder is a

Natural and Probable Consequence

Alvarado next argues that the court erred in failing to instruct the jury how it could

use the natural and probable consequences doctrine to convict him of second degree

murder. More specifically, he contends the court was required to instruct the jury as to

the particular target crimes for which a natural and probable consequence is second

degree murder.22 We reject this argument.

As explained in People v. Prettyman (1996) 14 Cal.4th 248, the sua sponte duty to

instruct as to target crimes “arises only when the prosecution has elected to rely on the

‘natural and probable consequences’ theory of accomplice liability and the trial court has

determined that the evidence will support instruction on that theory.” (Id. at p. 269.) As

noted in the preceding part, the prosecution did not rely on the natural and probable

consequences doctrine at trial. There was thus no reason for the court to instruct as to

target crimes or explain how to apply that doctrine. There was no error. If the omission

was error, it is harmless for the same reasons set forth in the preceding part—because the

jury found true the special circumstance allegations that the murders were committed

during the course of a robbery and kidnapping, it is clear that they were persuaded by the

felony-murder theory of first degree murder.

22 According to Alvarado, the target offense would need to be “a crime less than
robbery or kidnap and premeditated murder was not a natural and probable consequence
of that crime.”

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 5. Instructions Regarding Murder, and the Special Circumstance Instructions

Regarding Lying-in-wait, and Gang Participation

Alvarado next contends the court erred by instructing the jury as to murder and the

special circumstances of lying-in-wait and gang participation without modifying those

instructions in light of the prosecution’s theory of accomplice liability. We reject this

argument.

Regarding aiding and abetting, the court gave CALCRIM No. 401. (See ante, fn.

20.) The court then instructed as to the elements of murder in accordance with

CALCRIM Nos. 520 and 521. Consistent with these pattern instructions, the jury was

instructed, in part, that: “To prove that a defendant is guilty of this crime, the People

must prove that: [¶] 1. The defendant committed an act that caused the death of another

person; [¶] AND [¶] 2. When the defendant acted, he had a state of mind called malice

aforethought.”

On appeal, Alvarado argues that these instructions are problematic for two

reasons. First, although he was tried on an accomplice theory, the murder instruction is

phrased “as if Mr. Alvarado was one of the actual shooters.” For example, the instruction

that the defendant must commit “an act that caused the death of another person” was not,

Alvarado contends, “particularly useful here” because there was no evidence that he

committed the acts that caused death. Similar arguments are made as to the lying-in-wait

and gang participation instructions. Second, by including definitions of express and

implied malice as part of the instructions on murder, the court effectively eliminated the

44
requirement of accomplice liability that the defendant intend to aid and abet the

perpetrator.

Alvarado appears to contend the murder instructions should not have followed the

CALCRIM instructions verbatim, but should have been modified to incorporate the

instructions regarding aiding and abetting. Although he does not indicate precisely how

he believes the instruction should have been phrased, he appears to argue that instead of

stating that the “defendant committed an act that caused the death of another person,” the

instruction should have been modified to say that “a perpetrator committed an act that

caused the death of another.” The instruction, “When the defendant acted, he had a state

of mind called malice aforethought,” would apparently need to be modified to: “When

the perpetrator acted, he had a state of mind called malice aforethought.”

Regarding the lying-in-wait and gang participation instructions, Alvarado is more

explicit. Regarding lying-in-wait, he argues that the court should have instructed the jury

in accordance with CALJIC No. 8.80: “If you find the defendant was not the actual killer

[you must find] beyond a reasonable doubt that such defendant with the intent to kill,

aided, . . . abetted or assisted any actor in the commission of the murder in the first

degree.” Regarding the gang special circumstance, Alvarado argues the jury should have

been additionally instructed: “[I]f you find that a defendant was not the actual killer . . . ,

you cannot find the special circumstance to be true as to that defendant unless you are

satisfied beyond a reasonable doubt that such defendant with the intent to kill aided,

abetted, . . . or assisted . . . the commission of the murder in the first degree.”

45
 The arguments are rejected for two reasons. First, Alvarado never objected to the

instructions or requested the modifications or clarifications he says should have been

made. A party who did not request clarifying language in the trial court cannot

“complain on appeal that an instruction correct in law and responsive to the evidence was

too general or incomplete . . . .” (People v. Lang (1989) 49 Cal.3d 991, 1024.) Alvarado

has, therefore, forfeited these arguments on appeal.

Second, Alvarado views the instructions in isolation and incorrectly assumes the

jury did so as well. The jury was expressly instructed to consider all the instructions

together. We presume that jurors are intelligent and capable of understanding,

correlating, and applying the court’s instructions. (People v. Gonzales (2011) 51 Cal.4th

894, 940; In re Lucero (2011) 200 Cal.App.4th 38, 51.) Moreover, in reviewing a claim

of jury misinstruction, we must also consider the instructions as a whole, not as isolated

parts. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248; People v. Chavez (1985) 39

Cal.3d 823, 830.) The issue is whether it is reasonably likely the instructions, viewed in

context with other instructions, were applied by the jury in an impermissible manner.

(People v. Houston (2012) 54 Cal.4th 1186, 1229; People v. Jennings (2010) 50 Cal.4th

616, 677.)

Here, the jury was properly instructed as to the requirements of aiding and abetting

liability. Although the instructions regarding murder, lying-in-wait, and gang

participation use the word “defendant,” the jurors would reasonably comprehend that, in

the context of determining whether Alvarado was an accomplice to such crimes, the

46
“defendant” refers to the perpetrator of the crime who was allegedly aided and abetted by

Alvarado. The jurors would likely understand that such instructions do not replace or

negate the specific instructions regarding accomplice liability when the prosecution is

relying on that theory. Accordingly, viewing the instructions together and in their

context, we conclude it is not reasonably likely the jury applied them in an impermissible

manner.

6. Corpus Delicti Instruction

Over defense counsel’s objection, the court gave the jury the following corpus

delicti instruction based on CALCRIM No. 359: “A defendant may not be convicted of

any crime based on his out-of-court statements alone. You may only rely on the

defendant’s out-of-court statements to convict him if you conclude that other evidence

shows that the charged crime was committed. [¶] That other evidence may be slight and

need only be enough to support a reasonable inference that a crime was committed. [¶]

The identity of the person who committed the crime, the degree of the crime, and the

special circumstance of murder in the course of robbery, murder in the course of kidnap

may be proved by the defendant’s statements alone. [¶] You may not convict the

defendant unless the People have proved his guilt beyond a reasonable doubt.” (Italics

added.)

On appeal, Alvarado argues that the part of the instruction we italicized

“fundamentally undercut the state’s burden of proof as to the first-degree murder counts”

because “Alvarado’s statements themselves did not contain proof beyond a reasonable

47
doubt of either the degree of the crime or the felony murder special circumstance.” The

argument is without merit. First, the instruction did not, as Alvarado seems to suggest,

inform the jury that Alvarado’s statements contained proof beyond a reasonable doubt of

the degree of the crime or the felony-murder special-circumstance allegations. It merely

stated that such matters “may be proved by defendant’s statements alone.” This is a

correct statement of law. (See People v. Cooper (1960) 53 Cal.2d 755, 765 [when the

corpus delicti of the crime is established by independent evidence, the statements of the

accused may be used to establish the degree of the crime]; accord, People v. Weaver

(2001) 26 Cal.4th 876, 929-930; §§ 190.41, 190.2, subd. (a)(17) [corpus delicti of murder

during robbery or kidnap special circumstance need not be proved independently of the

defendant’s extrajudicial statement]; see also People v. Miranda (2008) 161 Cal.App.4th

98, 107-108 [corpus delicti rule does not apply to proof of the identity of the perpetrator,

the criminal agency of the defendant, the degree of the crime, or facts necessary for a

sentence enhancement].)

Second, it is not likely that the statement would be understood as lessening, or

undercutting, the prosecution’s burden of proof. The challenged language itself says

nothing about the burden of proof. Regarding the burden of proof, the jury was not only

instructed as to the reasonable doubt standard in accordance with CALCRIM No. 220

early in the charge, but, as part of the corpus delicti instruction, explicitly reminded of

that burden in the sentence immediately following the challenged language. Therefore, it

48
is not reasonably likely the jury understood the challenged language as altering the

reasonable doubt standard of proof.

7. Felony-murder Doctrine Instruction

Alvarado argues that the court’s felony-murder instruction was incomplete and

thereby deprived him of his constitutional rights.

The court instructed the jury with a modified version of CALCRIM No. 540B as

follows:

“The defendants are charged in Counts 1 and 2 with murder, under a theory of

felony murder. [¶] The defendants may be guilty of murder, under a theory of felony

murder, even if another person did the act that resulted in the death. I will call the other

person the perpetrator. [¶] To prove that a defendant is guilty of first degree murder

under this theory, the People must prove that:

“1. The defendant committed Robbery or Kidnap;

“2. The defendant intended to commit Robbery or Kidnap;

“3. If the defendant did not personally commit Robbery or Kidnap, then a

perpetrator, personally committed Robbery or Kidnap;

“AND

“4. While committing Robbery or Kidnap, the perpetrator caused the death of

another person. . . .”

The jurors were further instructed with the requirements of robbery and

kidnapping.

49
 Alvarado correctly points out that the court modified CALCRIM No. 540B by

omitting certain language from paragraph number “3.” After the words, “If the defendant

did not personally commit Robbery or Kidnap, then a perpetrator,” the court should have

included the parenthetical phrase “whom the defendant was aiding and abetting.” (See

CALCRIM No. 540B.) Without these words, the instruction—read in isolation of other

instructions—appears to give the jury the option of finding Alvarado guilty of murder if

he intended to commit robbery or kidnap, a perpetrator committed robbery or kidnap,

and, the perpetrator, while committing the robbery or kidnap, caused the death of another

person. Thus, the jury could find Alvarado guilty of murder even if it found that he

neither committed robbery or kidnapping nor aided and abetted a perpetrator’s robbery or

kidnap; indeed, there is no requirement under the instruction given that Alvarado acted at

all. This was error.

An instruction that omits or misdescribes an element of an offense is subject to

harmless error analysis under Chapman v. California (1967) 386 U.S. 18. (People v.

Flood (1998) 18 Cal.4th 470, 503-504.) The inquiry “is not whether, in a trial that

occurred without the error, a guilty verdict would surely have been rendered, but whether

the guilty verdict actually rendered in this trial was surely unattributable to the error.”

(Sullivan v. Louisiana (1993) 508 U.S. 275, 279; accord, People v. Flood, supra, at p.

515.) If, for example, other aspects of the verdicts leave no reasonable doubt that the jury

made the findings necessary for felony murder, the erroneous instruction was harmless.

50
(People v. Chun (2009) 45 Cal.4th 1172, 1204-1205; In re Lucero, supra, 200

Cal.App.4th at p. 50.)

Here, the felony-murder instruction, as given, allowed the jury the option of

convicting Alvarado of murder by selecting among two alternative theories of guilt: (1)

Alvarado intended to commit and did commit the robbery or kidnap during which a

perpetrator caused the death of another; or (2) a perpetrator committed the robbery or

kidnap during which a perpetrator caused the death of another. The instruction is flawed

only as to the second theory and only by omitting the requirement that Alvarado aided

and abetted the perpetrator. If the jury found Alvarado guilty based on the first

alternative or if other aspects of the verdicts necessarily show the jury made the aiding

and abetting finding that was omitted from the second alternative, the verdict would be

unattributable to the error.

Here, the jury did not indicate which option it relied upon to convict Alvarado of

felony murder. Nevertheless, the verdicts revealed that the jury found, under separate

instructions, that Alvarado was guilty of three counts of kidnapping for robbery—one

count for each murder victim and one count for the victim of the attempted murder. The

kidnapping for robbery verdicts could have been based upon the finding that Alvarado

personally committed kidnapping for robbery or that he aided and abetted others in

committing those crimes. If the jury found that he personally committed those crimes, it

necessarily made the findings required under the first option of the felony-murder

instruction. If the jury based its conviction of the kidnapping for robbery on aiding and

51
abetting, it necessarily made the aiding and abetting finding that was omitted under the

second felony-murder option. In either situation, we are persuaded beyond a reasonable

doubt that the murder verdict was unattributable to the instructional error.

IV. DISPOSITION

The true findings as to the robbery special circumstances made against Rodriguez

are reversed. In all other respects, the judgments against Rodriguez and Alvarado are

affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

KING
J.

We concur:

RAMIREZ
P. J.

HOLLENHORST
J.

52