People v. Carrillo CA2/2

Filed 1/20/16 P. v. Carrillo CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO

THE PEOPLE, B255298

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA336902)
v.

RAPHAEL CARRILLO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County.
Kathleen Kennedy, Judge. Affirmed.

John Steinberg, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and Ryan
M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
 Defendant and appellant Rafael Carrillo (defendant) appeals from his convictions
for murder and attempted murder. He contends that the trial court gave erroneous
instructions regarding conspiracy and the natural and probable consequences doctrine;
that substantial evidence did not support the finding that he knew or reasonably should
have known the attempted murder victims were peace officers; that gang evidence was
erroneously admitted; that defense counsel rendered ineffective assistance by eliciting
inflammatory testimony in cross-examination; that the firearm enhancements violated his
constitutional rights to equal protection and due process; and that Penal Code section
190.2 is unconstitutionally vague.1 Finding no merit to defendant’s contentions, we
affirm the judgment.
BACKGROUND
A six-count information was filed in 2010 against defendant and two codefendants
Jose Angel Gomez (Gomez) and Michael Gomboa Mallari (Mallari).2 Defendant was
charged in count 1 with the murder of Marco Salas (Salas), and in count 3 with the
murder of Daniel Leon (Leon), in violation of section 187, subdivision (a). Count 2
alleged assault with a semi-automatic firearm upon Alyssa Solis, in violation of section
245, subdivision (b). Defendant was charged with attempted premeditated murder of a
police officer, in violation of sections 664, subdivisions (e) and (f), and 187, subdivision
(a), as follows: Los Angeles Police Department (LAPD) Officer Carlos Langarica (count
4), and LAPD Officer Joseph Bain (count 5). In count 6 defendant was to have violated
section 246, by shooting at an occupied motor vehicle.
The information specially alleged that the crimes were committed for the benefit
of, at the direction of, or in association with a criminal street gang, with the specific
intent to promote, further and assist in criminal conduct by gang members, pursuant to

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

2 Defendant was tried separately from codefendants. Mallari, as part of a lenient
plea agreement testified against defendant. Gomez was also charged with a murder
committed in jail while awaiting trial in this case.

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section 186.22, subdivision (b)(1)(C), as to all six counts; pursuant to section 186.22,
subdivision (b)(5), as to counts 1, 3, 4, and 5; and pursuant to section 186.22, subdivision
(b)(4), as to count 6. In addition, the information alleged the special circumstance that
the murder of Salas (count 1) was committed while the defendant was an active
participant of the Avenues criminal street gang, and carried out to further the gang’s
activities, within the meaning of section 190.2, subdivision (a)(22); and that a principal
personally and intentionally discharged a firearm, proximately causing the death of Salas,
within the meaning of section 12022.53, subdivision (d) and (e)(1). The information
further alleged that in the commission of counts 1, 3, 4, 5 and 6, a principal personally
used and intentionally discharged a firearm, within the meaning of section 12022.53,
subdivisions (b)(c), and (e)(1). As to all counts, it was alleged that defendant had served
two prior prison terms within the meaning of section 667.5, subdivision (b).
A jury found defendant guilty of all counts as charged, except count 3, and found
true the special allegations and special circumstance. In a bifurcated proceeding on the
day of sentencing, the trial court found that defendant had served the two alleged prior
prison terms. On March 21, 2014, the trial court sentenced defendant on count 1 to life in
prison without the possibility of parole, plus a consecutive term of 25 years to life. As to
count 2, the court imposed the consecutive high term of nine years. As to each of counts
4 and 5, a consecutive term of 15 years to life, plus 20 years due to the gang and firearm
allegations. The court imposed a consecutive term of one year for each of the two prior
prison terms, and imposed but stayed a term of 15 years to life as to count 6. Defendant
was awarded 2,217 actual days of presentence custody credit, with no conduct credit, and
was ordered to pay mandatory fines and fees in addition to direct victim restitution, later
determined to be $10,110 and $163.69.
Defendant filed a timely notice of appeal from the judgment.
Trial evidence
The shooting of Marco Salas
On February 21, 2008, at approximately 11:30 a.m., Salas left home to pick up his
daughter from Aragon Elementary school, taking his two-year-old granddaughter Alyssa

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with him. As Salas held Alyssa outside the elementary school, three men shot him about
30 times. Alyssa suffered a large bump on her forehead during the attack. Salas was
taken to the hospital where he died as the result of multiple gunshot wounds.
Detective Aguilar: Gang culture and the Avenues gang
LAPD Detective Steven Aguilar testified as the prosecution’s gang expert, that for
10 years he was assigned to investigate gangs in northeast Los Angeles, including the
Avenues gang and the Cypress Park gang. In this assignment he had almost daily contact
with Avenues gang members, either as victims, witnesses or suspects. According to
Detective Aguilar, in 2008, there were about 150 members of the Avenues gang, which
included several sides, subsets, or cliques, including Drew Street. Drew Street was a
major hub of the Avenues gang and the Drew Street subset. The various cliques normally
got along with one another, not so with several neighboring gangs, such as Cypress Park
and Highland Park gangs. Detective Aguilar described Cypress Park gang as the mortal
enemy of the Avenues gang, particularly Drew Street. The gangs knew well the
boundaries of each other’s territory.
Detective Aguilar described the common signs and symbols used by members of
the Avenues gang, as well as usual gang tattoos and graffiti. He testified that the primary
criminal activities of the Avenues gang were vandalism, battery, murder, assault with a
deadly weapon, drive-by shootings, carjacking, assault on police officers, murder of
police officers, and robbery. He presented the certified conviction records of three
known Avenues gang members for assault with a semiautomatic firearm committed in
2007, and another for two counts of attempted robbery with use of a firearm.
Detective Aguilar explained that the concept of respect in gang culture meant fear,
and individual gang members generally earned respect and loyalty to the gang by not
“snitching,” by earning money selling drugs, committing vandalism, tagging the
neighborhood, and “putting in work,” meaning the commission of crimes, usually violent
crimes. A gang member could expect to earn a great deal of respect for the murder of a
rival gang member, as violence against a rival served to elevate the gang’s status, to
create fear among rival gang members, to encourage recruitment, and to control the

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neighborhood by intimidating the public such that residents were afraid to cooperate with
law enforcement. Assaulting police officers benefitted the gang by demonstrating a lack
of fear of law enforcement and a willingness to shoot at anyone. Gang members would
normally be accompanied by fellow gang members when going into rival neighborhoods,
to give themselves both a physical and a psychological advantage.
Detective Aguilar became acquainted with defendant as part of his assignment.
The detective knew defendant to be a member of the Avenues gang with the moniker of
“Stomper.” In Detective Aguilar’s opinion, defendant was an active member of the gang
in February 2008. Detective Aguilar identified photographs of defendant’s many gang
related tattoos, and explained that such a large number of tattoos indicated his pride in,
and dedication to, the gang. Defendant’s tattoos included: two “Aves” tattoos, meaning
Avenues, one on his forehead and another on the side of his head; “C A” and “CYPS” for
Cypress; “N” and “E” for northeast Los Angeles, with “Chico by nature and Drew Street
by choice” between each letter;3 “L.A.” for Las Avenidas (Avenues in Spanish); a skull
tattoo; and “Avenues” in large letters across defendant’s abdomen.
Detective Aguilar was also familiar with Gomez, and knew him to be a member of
the Avenues gang, with the gang moniker of “Rival.”4 Gomez also had many gang
related tattoos which showed that he was a dedicated and active member of the Avenues
gang. Detective Aguilar identified a photograph of one of Gomez’s tattoos, the number
“3200,” and explained that it referred to the 3200 block of Drew Street, the central hub of
the gang, located between Estara Avenue and Avenue 32. The 3300 block of Drew Street
was also part of Avenues territory. Detective Aguilar also identified photographs to two

3 Detective Aguilar explained that Chico was a subclique of the Avenues when
defendant joined the gang in the 1990’s.

4 Throughout the trial, some witnesses referred to Gomez, Leon, and others only by
their gang monikers or nicknames. After first mention and if necessary to avoid
confusion, we refer to them by their nicknames or by their moniker, followed by their
surnames, if known. Otherwise, we use only their surnames.

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other members of the Avenues gang who were active and dedicated in February 2008:
Alex “Gunner” Valencia and Noe “Muerto” Segura.
Francisco Real: Gang culture and the Avenues gang
Francisco “Poncho” Real (Real), a former Avenues “shot caller,” testified for the
prosecution under a plea agreement with federal prosecutors. Real testified both as an
expert on the Avenues gang and as a percipient witness.
Real estimated there were about 50 members in the Drew Street clique in 2008.
Real had grown up with the gang and had brothers in the gang. Some brothers were in
custody, some deceased, including his younger brother Daniel “Danny” Leon, who was
shot to death in one of the incidents charged in this case. In June 2008, Real was arrested
with a number of other Avenues gang members, and charged in a federal racketeering
indictment of 67 people, including Real’s wife and stepfather (who pled guilty and were
in custody), and Real’s three brothers. Real testified against defendant at his preliminary
hearing in 2010, and testified against other Avenues gang members, including Gomez’s
brother Carlos “Stoney” Velasquez who were charged with the murder of Deputy Sheriff
Juan Escalante. Real qualified as a gang expert in these proceedings.
Real described a catalog of crimes he had committed for the gang, including
collecting “taxes” from people who sold narcotics or engaged in other illegal business in
the neighborhood, and committing robberies against some who had not paid their taxes.
In January 2008, during one such robbery, a gang member was shot to death in a shootout
with a neighbor of the victim. Real had coordinated the robbery, in which seven
accomplices from Drew Street participated. One of Real’s earlier crimes was to assist
another gang member in shooting to death a person the Mexican Mafia had ordered the
Drew Street Avenues to kill.5

5 Real explained that the Mexican Mafia was a prison gang that included older
incarcerated Avenues gang members. It maintained authority over Southern California
Hispanic gangs by taxing their illegal activity and ordering them to commit such crimes
as killing a designated person or buying the names of witnesses against them for purposes
of intimidation.

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 As the shot caller and tax collector for Drew Street, Real was the person in charge
of the neighborhood. He gave orders, saw they were carried out, issued “green lights”
(authorization) to kill specified persons, passed information along to higher ups in the
gang, along with collecting taxes for the Mexican Mafia. Not all orders came from the
Mexican Mafia, and its approval was not required for the Avenues gang’s own “gang
banging” activities, which ranged from partying together to putting in work such as
robberies, attacks on rival gang members, tagging graffiti, and displaying gang signs to
rivals.
Real identified photographs of those Avenues gang members he knew well,
including “Muerto” Segura, “Gunner” Valencia, and “Rival” Gomez. For five to ten
years before his indictment, Real had known defendant (Stomper) as a member of the
Drew Street side of the Avenues gang and the Chicos clique. Real knew Mallari
(Phillie), as just a “crackhead” he saw around the neighborhood. Mallari associated with
Avenues gang members regularly, and was considered trustworthy.
The Cypress Park gang was the Avenues gang’s “enemy number one,” and Real
described the level of hatred between members of the two gangs as “to the heart.” Real
explained that the purpose of the gang was to intimidate and frighten people, in order to
prevent cooperation with law enforcement, thus allowing the gang to commit crimes such
as robbery and narcotics sales. The gang intimidated rival gang members to make them
hesitate to come into Avenues territory.
The mission
Mallari also testified under an agreement with the prosecution. Though he had
lived in the Avenues neighborhood and associated with the Avenues, he was not a
member of the gang. He was called Phillie because he was originally from the
Philippines. Mallari was a narcotics addict who purchased drugs from Avenues gang
members, and was on Drew Street daily, selling or buying drugs. In February 2008,
Mallari was acquainted with several Avenues gang members, including Real, Segura,
Valencia, Leon, and Gomez. He had seen defendant around the neighborhood, knew him
as Stomper, and knew him to be an member of the Avenues gang.

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 On February 21, 2008, when Mallari’s employer, Martin Martinez, asked him to
make a bank deposit, he left for the bank at 11:00, driving the Martinez family van.
Mallari made the deposit and was driving home when he decided to buy drugs on Drew
Street. Upon his arrival he saw Segura and Valencia crouching between cars and holding
guns. They relaxed and came out when they saw that it was Mallari. They explained
they were about to go on a “mission” because someone had shot at their “homie” Diego
that morning. They asked Mallari whether he was “down for” it. Mallari agreed, and
saw defendant in the driver’s seat of a white car and Leon in the back seat, wearing a
mask. Mallari saw Real alone in another car. Segura passed Mallari both a .38-caliber
revolver loaded with three rounds and some methamphetamine, which Mallari ingested
on the way to Cypress Park. Mallari drove the van, with Segura and Valencia as
passengers.
Once in Cypress Park neighborhood, the group searched for Cypress Park gang
members. They stopped and asked a gardener where the Cypress Park gang members
were, but he did not know. They then drove through the neighborhood until they saw a
man walking with his granddaughter near a school. As the man picked up the child and
walked faster, Segura said, “There he is, there he is.” Leon, wearing his ski mask,
jumped out of the backseat of the white car and taunted the man with his AK47 rifle.
Segura and Valencia, holding guns, confronted the man before all three men took turns
shooting him until he fell, still holding his granddaughter.
When they returned to the cars, Mallari asked whether they shot the little girl.
One responded that it was none of his business and to “Just drive. Get out of here.”
Mallari accelerated and turned left on Isabel Street after passing defendant’s white car,
which turned right. One of Mallari’s passengers said, “This is the shit we need to be
doing.” Two men fired at the van as it fled, and Mallari fired back, but he kept driving.
Although a tire was losing air, the van made it back to the Avenues gang neighborhood
with the sounds of sirens and helicopters nearby. The men hid their guns in a nearby
apartment complex for Mallari to pick up later.

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 The Drew neighborhood’s familiarity with Officer Langarica
Officer Langarica, who worked out of the Northeast Division, which included the
Avenues gang area, had variously been assigned to patrol as a gang officer, a detective
trainee, and as a member of a team assigned to the surveillance of known serious
offenders.
In February 2008, Officer Langarica had been assigned to his surveillance team
for a year. During the preceding year, he patrolled the area with a partner in the same
unmarked, green Honda Accord four times a week at least once or twice each day, while
wearing plain clothes. Because the Honda had tinted windows, the officers were not
visible and Officer Langarica sometimes heard people yell such things as, “It is the
police,” and “There is the pigs”; or sometimes people made siren sounds, apparently to
mock or taunt the officers. One summer day in 2007, when Officer Langarica was called
to an apartment building on the 3400 block of Drew Street after shots had been fired, he
saw graffiti on the building in which his name had been written and crossed out, with the
numbers 187 written over it. Officer Langarica explained that 187 was the Penal Code
section for murder. The graffiti also included “Fuck the injunction” and included the
name of Officer Langarica’s partner at the time, with “puto” (a derogatory term for male
homosexuals) written nearby. A few days earlier, Officer Langarica and his partner, in a
pursuit of a car involved in narcotics sales, saw Carlos “Stoney” Velasquez flee from that
car before they lost sight of him.
Officer Langarica testified that he knew Leon very well, based on many contacts
with him. On numerous occasions as Officer Langarica drove through the neighborhood,
Leon would say such things as, “‘Fuck L.A.P.D.’ or ‘Fuck you, Langarica,’ or, ‘Get out
of my neighborhood.’” Officer Langarica had detained Leon about a dozen times,
arrested him twice since 2003, and had about 20 casual encounters with him. About 25
contacts included conversations during which Leon addressed Officer Langarica by
name. After both arrests, Officer Langarica remained with Leon throughout the booking
process and interview, for a total of about six hours. In one case, Officer Langarica
testified against Leon at a preliminary hearing and again at trial.

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 Real testified that he knew Officer Langarica from contacts over the past two
years. Officer Langarica and other officers passed by the front of the building where they
conversed many times. In addition, Real had seen Leon in conversation with Officer
Langarica more than 10 times. Once, when Leon was 22 years old, Officer Langarica
caught him tagging graffiti on trees, gave him a warning, and took the paint can away.
The attempted murders of Officers Langarica and Bain
Officer Langarica and his partner, Officer Bain, both testified that they were on
patrol together on February 21, 2008. Officer Langarica was driving the green Honda,
both officers were wearing plain clothes as usual, and Officer Bain wore his badge on a
lanyard tucked inside his shirt. At about 11:53 a.m., they heard a broadcast on their
police radios about a shooing in Cypress Park, near Aragon Avenue and Isabel Street.
Officer Langarica knew that shootings between the Cypress Park gang and the Drew
Street clique of the Avenues gang had been an almost daily event for about a month, so
he decided to go to the Drew Street neighborhood rather than the location of shooting, in
anticipation of the return of suspects to their territory.
After a short wait, a small white Nissan came toward the officers, swerving in and
out of oncoming traffic, and speeding past a stop sign. As the car got closer, Officer
Langarica recognized the several occupants as Avenues gang members, including Leon in
the front passenger seat, and defendant the driver. As soon as the white car passed,
Officer Langarica made a U-turn and followed it to Drew Street, where it stopped in front
of the building where Leon lived. As Officer Langarica drove, Officer Bain moved his
badge to the outside of his shirt where it would be visible, and unholstered his gun.
When the officers’ green Honda came within two car lengths behind the white
Nissan, the Nissan stopped abruptly and Leon immediately came out armed with an
AK47 rifle. The other occupants were also coming out of the car. Leon pulled a ski
mask over his face, leveled the weapon, and began to fire into the officers’ car while it
was still moving. Officer Langarica immediately stopped the car, jumped out, and fired
two rounds without hitting Leon. While Officer Bain was still in the passenger seat,
Leon fired low toward the Honda, and then “walked” seven to ten rounds up the hood and

10
into the windshield, causing shattered glass to fall on Officer Bain, who had opened the
door, leaned out, and returned fire through the space between the cabin and door. Officer
Bain identified one of the other two men to get out of the Nissan as Gomez, and saw him
firing at the officers as well. Officer Langarica saw one of the two men shooting at them,
who he could not identify, hold the weapon behind him as he ran away. Officer
Langarica then fired two more rounds, and Leon fell to the ground. After firing the
second burst of shots at Leon, Officer Langarica saw Gomez get up from the ground,
look in the officer’s direction, and then run behind a building. There, Gomez was
apprehended and taken away by ambulance with a gunshot wound.
When Real approached the scene crying and upset, Officer Langarica considered
him a suspect, as Real was a known member of the Avenues gang. Despite repeated
warnings to stop, Real kneeled by Leon, placed his hand under Leon’s head, and replied,
“Fuck you, Langarica. You just shot my brother.” Other officers then arrived and took
him away.
Real’s account of the events after the attempted murders
Real testified that February 21, 2008, was tax collection day. He awoke at 8:00
a.m. in his apartment building on the 3300 block of Drew Street, where Real also rented
three other apartments for members or associates of his gang, including Leon. Real met
with defendant and others later that morning in the parking lot behind the apartment
building. Also present were Leon, Segura, Valencia, and Gomez. Gomez had a .380-
caliber handgun in his cell phone holder. Real told Leon to go inside, and told defendant
not to take along his brother.
Real then drove around the neighborhood collecting taxes. When he returned
about 20 minutes later, the men who had been there earlier were gone, and Mallari
arrived at the apartment building driving a minivan. Soon, Real received a message that
Segura wanted Real to pick him up from the home of another Avenues gang member on
Division Street. As Real drove there, he passed defendant in his white car, with a green
car right behind the white car, traveling fast. Real heard gunfire and turned back.

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 Back at the apartment building, Real saw someone lying on the ground wearing a
ski mask, with a firearm next to him, and another person rolling on the ground toward the
back of the apartment building, away from the sidewalk. Real also saw Officer Langarica
in the middle of the street, and recognized him immediately. Real saw another officer
crouching behind a car, as though covering Officer Langarica with his gun. When Real
recognized the person lying on the ground was his brother, he walked toward him,
ignoring Officer Langarica’s commands to stop. Real picked up Leon, shook him, and
determined he was dead. Real confronted Officer Langarica, and as he walked back to
his brother, other officers rushed him and placed him in handcuffs. When Real was
released after a few hours, he went home. He later received a phone call from defendant,
who was then a close friend of Real’s. Defendant asked whether the gun had been found
on Real’s brother, and told Real that they were looking for his car. Real told him to be
careful.
Real investigated the Salas shooting for the Mexican Mafia.6 He spoke to Mallari
and Valencia, who told him they had gone to Cypress Park to look for a Cypress Park
gang member. Gomez, Leon, and defendant were in defendant’s car, while Valencia,
Segura and Mallari were in the minivan. Valencia said Leon had spotted a man, they
stopped, Leon shot him, and then they all took turns shooting him. As they drove away,
they exchanged fire with some Cypress Park gang members.
Defendant was arrested on February 25, 2008, after he was stopped, driving his
white Nissan. In a recorded telephone conversation the next day, he told his mother and
Real that he was being charged with Leon’s murder, adding, “Rival supposedly
snitched.”
Tired of the gang life and pressured by his homies to retaliate against the police
for killing Leon, Real spoke to the FBI in April 2008. The FBI had been conducting
wiretap surveillance of the Avenues gang since January 2008, and did not contact Real

6 As the Mexican Mafia discouraged assaults on children, Real reported back that
no little girl was there, in an effort to avoid retaliation against his gang and the members
involved.

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again until after June 25, 2008, when agents raided his Drew Street apartment building,
throwing smoke grenades and flash bombs. Real and other Avenues gang members were
arrested. Real ultimately pled guilty to racketeering and conspiracy to sell narcotics.
DISCUSSION
I. Jury instructions
A. Instructions requested by the prosecution
Defendant contends that the trial court erred in instructing the jury on derivative
liability based on conspiracy and the natural and probable consequences doctrine. As the
evidence did not show that defendant personally fired at the officers, but instead that
defendant drove the car from which Leon and Gomez emerged before firing at them, the
prosecution advanced three theories of defendant’s derivative culpability for the
attempted murders: direct aiding and abetting; the natural and probable consequences
doctrine; and conspiracy. The trial court instructed the jury with CALCRIM Nos. 400,
401, 402, 416, 417, 418, and 419.
B. Natural and probable consequences
Defendant contends that the trial court erred in instructing the jury that it could
find him guilty of the attempted murders of the officers if it found that that shooting was
a natural and probable consequence of the shooting of Salas. We are unable to find such
an instruction.
The trial court instructed the jury as to direct aiding and abetting with CALCRIM
No. 401, and as to the natural and probable consequences doctrine with CALCRIM No.
402. The latter instruction separately included the elements required for a finding that the
assault upon Alyssa was the natural and probable consequences of the shooting of Salas,
and the elements required for a finding that the attempted murders of the two officers
were the natural and probable consequences of the assault upon the two officers. As to
the attempted murders, the trial court read:
“The defendant is charged in counts 4 and 5 with attempted murder
in violation of Penal Code sections 664 and 187. One theory that the
People are relying upon is that the defendant and a coparticipant intended to
commit the crime of assault with a semiautomatic firearm in those counts in

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 violation of Penal Code Sections 245(b) and that the crime of attempted
murder was a natural and probable consequence of that crime. Under this
theory, in order to find the defendant guilty of attempted murder in either or
both of counts 4 and 5, the People must prove the following: one, the
defendant or a coparticipant committed the crime of assault with a
semiautomatic firearm upon Carlos Langarica and/or Joseph Bain beyond a
reasonable doubt; two, during the commission of the crime of assault with a
semiautomatic firearm, the crime of attempted murder was committed;
three, under all the circumstances a reasonable person in the defendant’s
position would have known that the crime of attempted murder is a natural
and probable consequence of the commission of assault with a
semiautomatic firearm. . . . A natural and probable consequence is one that
a reasonable person would know is likely to happen if nothing unusual
intervenes. In deciding whether a consequence is natural and probable,
consider all of the circumstances established by the evidence. . . . Also, if
the assault with a semiautomatic firearm upon Carlos Langarica and/or
Joseph Bain . . . were committed for a reason independent of the common
plan to commit attempted murder, then the commission of attempted
murder was not a natural and probable consequence of assault with a
semiautomatic firearm.”

“[U]nder the natural and probable consequences doctrine, an aider and abettor is
guilty not only of the intended crime, but also ‘for any other offense that was a “natural
and probable consequence” of the crime aided and abetted.’ [Citation.] Thus, for
example, if a person aids and abets only an intended assault, but a murder results, that
person may be guilty of that murder, even if unintended, if it is a natural and probable
consequence of the intended assault. [Citation.]” (People v. McCoy (2001) 25 Cal.4th
1111, 1117.) Similarly, if a person aids and abets only an intended assault, but an
attempted murder results, that person may be guilty of an unintended attempted murder,
if it is a natural and probable consequence of the intended assault. (People v. Montes
(1999) 74 Cal.App.4th 1050, 1054; see People v. Chiu (2014) 59 Cal.4th 155, 161-162.)
In both examples, the intended assault is called the target offense, while the unintended
murder or attempted murder is the nontarget offense. (See People v. Chiu, supra, at p.
161.)

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 We agree with respondent that defendant’s contentions must be rejected as they
are based upon a false factual predicate. (See People v. Yeoman (2003) 31 Cal.4th 93,
136.) It is apparently defendant’s understanding that the challenged instruction identified
the Salas shooting as the target offense and the attempted murders of the police officers
as the nontarget offense. Based upon this belief, defendant contends that the armed
assaults upon the officers by Leon and Gomez were caused by “independent intervening
acts” rather than the natural and probable consequences of the Salas shooing.7 Contrary
to defendant’s apparent understanding, the instruction identified the assault on the
officers as the target offense and the attempted murders as the nontarget offenses.8 As
long as the jury was instructed that the prosecution must prove that the nontarget offense
was reasonably foreseeable, there was no need to require proof that the actions of Gomez
and Leon were not independent intervening acts. (See People v. Smith (2014) 60 Cal.4th
603, 616-617.)
The instruction was properly given. Defendant does not contend that there was
insufficient evidence that he directly aided and abetted the assault by Leon and Gomez on
the two officers. When defendant abruptly stopped his car, the two assailants
immediately jumped out and quickly began firing their weapons. Such facts suggest that
defendant knew that Gomez and Leon intended to fire at the officers, and that he stopped
the car when they were ready to do so in order to facilitate the assault. To justify an
instruction on a natural and probable consequences theory, the prosecution was not

7 Defendant cites the verdict of not guilty on count 3, the murder of Leon, and
contends that his acquittal of that count provided substantial evidence to support his
theory that the attempted murders were the result of an independent intervening act. An
acquittal on one count, even if factually inconsistent with a count under which the
defendant was convicted does not provide evidence or demonstrate any insufficiency of
the evidence. (See People v. Santamaria (1994) 8 Cal.4th 903, 911; People v. Hussain
(2014) 231 Cal.App.4th 261, 273; § 954.)
8 Defendant also contends that the prosecutor argued that defendant was guilty of
the attempted murders because he aided and abetted or conspired to murder a rival gang
member, and the later shootings at the officers were natural and probable consequences.
Defendant is similarly mistaken.

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required to present evidence that defendant actually foresaw that his companions would
attempt to murder the officers as “liability ‘“is measured by whether a reasonable person
in the defendant’s position would have or should have known that the charged offense
was a reasonably foreseeable consequence of the act aided and abetted.”’ [Citation.]”
(People v. Chiu, supra, 59 Cal.4th at pp. 161-162.) It is reasonably foreseeable that
aiding and abetting an assault with a deadly weapon will result in attempted murder. (See
People v. Montes, supra, 74 Cal.App.4th at p. 1054.)
C. Conspiracy instruction
Defendant contends that the instructions regarding conspiracy as a theory of
derivative criminal liability were erroneous as applied to the attempted murders of the
two police officers.
“‘The general rule is well settled that where several parties conspire or combine
together to commit any unlawful act, each is criminally responsible for the acts of his
associates or confederates committed in furtherance of any prosecution of the common
design for which they combine. . . . Each is responsible for everything done by his
confederates, which follows incidentally in the execution of the common design as one of
its probable and natural consequences, even though it was not intended as a part of the
original design or common plan. . . .” (People v. Kauffman (1907) 152 Cal. 331, 334
(Kauffman); see also People v. Prettyman (1996) 14 Cal.4th 248, 261.)9
The trial court instructed the jury on the elements of conspiracy and the criminal
responsibility of each member of the conspiracy for the statements and acts of each other
member of the conspiracy, for the purpose of accomplishing the goal of the conspiracy.
The court further instructed that the prosecution was required to prove that defendant
agreed with one or more coparticipant to commit murder, and that he or one of the other
coparticipants committed one or more of the following overt acts: “(1) one or more of

9 Unlike here, Kauffman involved the liability of a coconspirator in a charged
conspiracy, rather than using an uncharged conspiracy as an alternative theory of
derivative culpability. (See Kauffman, supra, 152 Cal. at p. 334.) Since then, “later
decisions have applied the ‘natural and probable consequences’ doctrine to aiders and
abettors. [Citations.]” (Prettyman, supra, 14 Cal.4th at pp. 260-261.)

16
the coconspirators armed themselves with firearms; (2) one or more of the coconspirators
drove into rival gang territory; (3) one or more of the coconspirators exited from a
vehicle; and (4) one or more of the coconspirators shot Marco Salas.”
As relevant here, the court also instructed:
“A member of a conspiracy is not criminally responsible for the act
of another member if that act does not further the common plan or is not a
natural and probable consequence of the common plan. To prove that the
defendant is guilty of the crimes charged in counts 2, 4, 5 and 6, the People
must prove that: one, the defendant conspired to commit one of the
following crimes: murder; two, a member of the conspiracy committed
murder; and three, assault with a semiautomatic firearm (count 2),
attempted murder (counts 4 and 5), and shooting into an occupied motor
vehicle (count 6), were the natural and probable consequences of the
common plan or design of the crime that the defendant conspired to
commit. . . . A conspiracy member is not responsible for the acts of other
conspiracy members that are done after the goal of the conspiracy has been
accomplished.”

Defendant contends that the instructions were inapplicable to the attempted
murders of the two police officers. He argues that the object of the conspiracy was to kill
a rival gang member and that the conspiracy had necessarily ended when that object was
accomplished by the killing of Salas; thus, he concludes, the attempted murders could not
be the natural and probable consequence of the conspiracy to commit a murder in rival
gang territory.10
Defendant asserts that at the time of the shootout with the officers, the conspiracy
to kill a rival gang member could not be “deemed still operative merely because the
conspirators act[ed] in concert to avoid ‘detection and punishment’ [Citations.]” (People

10 Although the instructions allowed the jury to determine whether the attempted
murders were committed in furtherance of the common plan which included the murder
of Salas, the prosecutor did not advance such a theory in summation. The prosecutor
discussed the conspiracy to commit the murder in rival gang territory only as a theory of
liability for the murder of Salas. With regard to the attempted murders of the officers, the
prosecutor’s conspiracy argument was that defendant conspired with others to assault the
officers with a firearm, and a natural and probable consequence of that conspiracy was
attempted murder.

17
v. Leach (1975) 15 Cal.3d 419, 431; see also People v. Saling (1972) 7 Cal.3d 844, 852-
853 (Saling) [adopting the rule of Krulewitch v. United States (1949) 336 U.S. 440,
443].) As we construe defendant’s arguments, he implies that, as a matter of law,
participants in a murder conspiracy cannot be responsible for the actions of
coconspirators once the victim is dead, and that, also as a matter of law, murder
conspiracies do not include a plan to escape detection and arrest.
Rejecting a similar argument over 100 years ago, the California Supreme Court
held that the duration of the conspiracy and whether it included a goal of avoiding
detection and forcibly resisting arrest were questions of fact for the jury to determine.
(Kauffman, supra, 152 Cal. at pp. 335, 338.) These remain jury questions today. (See,
e.g., People v. Hardy (1992) 2 Cal.4th 86, 143; Saling, supra, 7 Cal.3d at p. 852; People
v. Zielesch (2009) 179 Cal.App.4th 731, 741-742.) It is generally true that a “conspiracy
usually comes to an end when the substantive crime for which the coconspirators are
being tried is either attained or defeated. [Citations.]” (Saling, at p. 852.) However, it is
not a matter of law, but a question “for the trier of fact -- considering the unique
circumstances and the nature and purpose of the conspiracy of each case -- to determine
precisely when the conspiracy has ended. [Citations.] Particular circumstances may well
disclose a situation where the conspiracy will be deemed to have extended beyond the
substantive crime to activities contemplated and undertaken by the conspirators in
pursuance of the objectives of the conspiracy. [Citations.]” (Ibid.; see also People v.
Hardy, supra, at pp. 143, 146 [“no rigid rules exist in this area”].)
For example, in Kauffman, the defendant argued that as a matter of law, the
conspiracy ended when the common plan was abandoned and the coconspirators left the
area where the intended crime was to be committed. (Kauffman, supra, 152 Cal. at p.
338.) There, the defendant and several friends who lived in San Francisco devised a plan
to break into a safe in a San Mateo County cemetery. (Id. at pp. 332-333.) They armed
themselves with nitroglycerin, guns, and burglary tools, went to the cemetery, but when
they discovered an armed guard on the premises, they abandoned their plan and returned
to San Francisco. On their way home, they encountered a police officer, a gunfight

18
ensued between the officer and the friends, and the officer was killed. The defendant was
unarmed, had his hands up, and did not participate in the shooting, but was charged with
and convicted of the officer’s murder as a coconspirator. (Id. at pp. 333-334.) The court
found substantial evidence to support an instruction and a finding that the criminal design
included an agreement to avoid detection and arrest while going to and coming from the
scene of the proposed burglary. (Id., at pp. 335-337.) The court cited the following facts:
the six coconspirators divided their group into two parties of three, apparently to avoid
suspicion; five of them were armed with deadly weapons; and if the burglary tools they
carried were discovered by law enforcement, they would be arrested. (Ibid.; also cf.
People v. Durham (1969) 70 Cal.2d 171, 180-181.)
Here too, substantial evidence suggested that a simultaneous goal of the
conspiracy was to avoid detection and if necessary, forcibly and violently resist arrest.
The shooting of Salas was a mission of retaliation for the assault on a fellow gang
member. Evidence suggesting prior agreement on methods of undertaking such a
mission is found in Detective Aguilar’s expert testimony that violent assaults on rival
gang members were among the gang’s common criminal activities, and that violent
assaults on police officers were among the primary criminal activities of the Avenues
gang, undertaken in part to make residents afraid to cooperate with law enforcement.
Defendant and his coparticipants went in two cars and fled the scene in different
directions, suggesting a preconceived plan to facilitate their escape. All of the occupants
of the van were armed with firearms, and at least two of the occupants of defendant’s car
were armed. Leon, an occupant of defendant’s car, was armed with an assault rifle, more
firepower than necessary to kill one person, also suggesting a preconceived plan to
facilitate an escape.
Under such circumstances, the trial court did not err in granting the prosecution’s
request for the conspiracy instructions. The instructions properly allowed the jury to
determine the existence, duration, and scope of a conspiracy to commit murder; and they
made clear that defendant could not be convicted under this theory unless the acts of

19
coconspirators furthered the common plan, were a natural and probable consequence of
the plan, and were committed before the goal of the conspiracy had been accomplished.
As the trial court did not give legally erroneous instructions regarding aiding and
abetting or conspiracy, we need not reach defendant’s contention made pursuant to
People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129, and People v. Green (1980) 27
Cal.3d 1, 69-71, that because the jury was instructed on both legally correct and legally
incorrect theories, reversal is required unless the record shows that the jury based its
verdict on the correct theory.
II. Substantial evidence
Defendant contends that his sentences must be reduced to life in prison, because
substantial evidence did not support the jury’s true findings that he knew or reasonably
should have known that Officers Langarica and Bain were peace officers engaged in the
performance of their duties.
Section 664, subdivision (e) provides in relevant part: “[I]f attempted murder is
committed upon a peace officer . . . , and the person who commits the offense knows or
reasonably should know that the victim is a peace officer . . . engaged in the performance
of his or her duties, the person guilty of the attempt shall be punished by imprisonment in
the state prison for life with the possibility of parole.”
First defendant contends that section 664, subdivision (e) cannot be construed to
apply to an aider and abettor under the natural and probable consequence doctrine; and he
therefore asks that we hold that the statute requires a finding that the aider and abettor
personally shared the perpetrator’s actual or constructive knowledge that the victim was a
police officer. Defendant then argues that there was no substantial evidence that the
perpetrators knew or should have known that the victims were police officers.
As defendant has not explained how a person can share another person’s
constructive knowledge, and has not cited to examples in the case law, we have no basis
to believe that the Legislature intended such a meaning. It is unnecessary in any event, as
substantial evidence supports a finding that defendant personally had constructive

20
knowledge that Officers Langarica and Bain were peace officers engaged in the
performance of their duties.
“The proper test for determining a claim of insufficiency of evidence in a criminal
case is whether, on the entire record, a rational trier of fact could find the defendant guilty
beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the
light most favorable to the People and must presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence. [Citation.]”
(People v. Jones (1990) 51 Cal.3d 294, 314.) “The same standard applies when the
conviction rests primarily on circumstantial evidence. [Citation.]” (People v. Kraft
(2000) 23 Cal.4th 978, 1053.) “An appellate court must accept logical inferences that the
jury might have drawn from the circumstantial evidence. [Citation.]” (People v. Maury
(2003) 30 Cal.4th 342, 396.) Reversal on a substantial evidence ground “is unwarranted
unless it appears ‘that upon no hypothesis whatever is there sufficient substantial
evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th
297, 331.)
Defendant summarizes the circumstances in which he concludes it would be only
speculative to find that he, Leon, or Gomez recognized Officer Langarica, and that it
would be more reasonable to conclude that Leon thought the officers were rival gang
members who had chased them from the scene of the Salas shooting. Defendant
acknowledges the extensive prior contact between Leon and Officer Langarica, but notes
that there was little or no evidence that defendant had come into prior contact with the
officers or that he personally knew that the officers regularly patrolled the neighborhood
driving the green Honda while wearing plain clothes. In addition, defendant points out
that he remained in the driver’s seat of his car during the shootout. There was no
evidence indicating that defendant looked in the officers’ direction. He adds that Leon
wore a mask over his face, and rival gang members had fired shots at the Avenues cars as
they fled the scene of the Salas shooting, just minutes earlier. Defendant concludes that
this evidence precludes an “objectively reasonable” inference that he or his companions
reasonably should have known that the two men in the green Honda were peace officers.

21
 Reversal is not warranted merely because defendant is able to point to
circumstances that might reasonably be reconciled with a finding that would defeat the
judgment. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Moreover, defendant has
summarized only the evidence from which a jury might infer that defendant and his
coparticipants had no actual knowledge of the victims’ status. He has failed to
summarize any of the ample evidence that would support a finding that he reasonably
should have known that the victims were peace officers in the performance of their duties.
Our review of the record reveals overwhelming evidence to support the jury’s
finding. At the time of the shooting defendant was an active member of the Avenues
gang, and as his tattoo advertised, defendant was “Drew Street by choice.” Real, the
Drew Street shot caller in charge of the neighborhood and defendant’s close friend, knew
Officer Langarica by sight. As soon as Real arrived at the scene of the shooting and
before marked police vehicles arrived, Real immediately recognized Officer Langarica.
Many other Drew Street gang members knew Officer Langarica by sight as well, even
though the officer was behind the tinted windows of his green Honda. During an entire
year prior to the shooting, Officer Langarica had patrolled the Drew Street neighborhood
an average of four times a week, always in the same unmarked, green Honda Accord and
wearing plain clothes. As he passed, Leon was heard to say such things as, “‘Fuck
L.A.P.D.’ or ‘Fuck you, Langarica,’ or, ‘Get out of my neighborhood.’” Officer
Langarica and Real both testified that Leon knew Officer Langarica well, as they had
many prior contacts.
Gomez’s brother, Avenues member, “Stoney” Velasquez, also knew Officer
Langarica by sight. Six months or so before the shooting, Officer Langarica and his
partner pursued Velasquez by car as he fled the scene of suspected narcotics sales. Just a
few days later, Officer Langarica observed gang graffiti on a building on the 3400 block
of Drew Street, where his name was crossed out with “187” written over it. From such
circumstances, the jury could reasonably infer that Velasquez recognized Officer
Langarica during the chase and that he informed the neighborhood who had pursued him.

22
 In sum, Real knew Officer Langarica by sight; Leon knew Officer Langarica and
his green Honda by sight; and Gomez’s brother, as well as other Drew Street gang
members and residents knew Officer Langarica and his green Honda by sight. Officer
Langarica and his green Honda were well known and easily recognized in the Drew
Street neighborhood on February 21, 2008. Defendant and his fellow gang members
were speeding back from rival gang territory after aiding and abetting a murder, when the
green Honda began following them. Leon and Gomez were ready to jump from the car
and start firing when defendant abruptly stopped, leading to the conclusion that the three
gang members must have discussed their getaway strategy. Under the circumstances, a
jury could reasonably conclude that a Drew Street Avenues gang member, such as
defendant, knew that the green Honda was occupied by two peace officers who were
pursuing him and his companions in the course of their law enforcement duties.
III. Gang related evidence
A. Defendant’s contentions
According to headings in defendant’s opening and reply briefs, the third
assignment of error is the following: “The erroneous admission of extremely
inflammatory and irrelevant evidence of gang membership violated appellant’s federal
constitutional right to due process.” Despite this assertion, the evidence thereafter
challenged in the briefs cite the following three instances of gang related evidence: (1)
Officer Langarica’s testimony regarding graffiti with his name in it; (2) Real’s testimony
regarding payment to defense lawyers for witness information in order to facilitate
witness intimidation; and (3) Mallari’s testimony regarding the murder of a deputy
sheriff.
Due to the structure of defendant’s arguments, it initially appears that defendant
contends that all three pieces of evidence should have been excluded under Evidence
Code sections 210, 352, and 1101, subdivision (a).11 However, only the first (Officer
Langarica graffiti) appears to involve all three grounds for the exclusion of evidence,

11 All further statutory references in this section of the Discussion are to the
Evidence Code, unless otherwise indicated.

23
while the second (Real’s efforts regarding witness intimidation) appears to be based only
on section 352. The third item (murder of a deputy sheriff) is not an evidentiary
challenge at all; rather, defendant contends that defense counsel rendered constitutionally
ineffective assistance by eliciting this testimony from Mallari.
“We discuss those arguments that are sufficiently developed to be cognizable. To
the extent defendant perfunctorily asserts other claims, without development and, indeed,
without a clear indication that they are intended to be discrete contentions, they are not
properly made, and are rejected on that basis. [Citations.]” (People v. Freeman (1994) 8
Cal.4th 450, 482, fn. 2.) We thus do not discuss any issue relating to evidence of
defendant’s gang membership or any other contention that has not been clearly
articulated.
B. Admissibility of evidence
“[A]n appellate court reviews any ruling by a trial court as to the admissibility of
evidence for abuse of discretion. [Citation.]” (People v. Alvarez (1996) 14 Cal.4th 155,
201.) We may not disturb the trial court’s ruling on the admissibility of evidence
“‘except on a showing the trial court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage of justice.’ [Citation.]”
(People v. Goldsmith (2014) 59 Cal.4th 258, 266.)
A challenge to the admissibility of evidence is generally not cognizable on appeal
in the absence of a specific and timely objection in the trial court on the ground urged on
appeal. (§ 353.) Where there is no objection or the objection fails to fairly express the
specific reason for excluding the evidence, the trial court cannot be said to have abused a
discretion it was never asked to exercise. (People v. Partida (2005) 37 Cal.4th 428, 435.)
A contention that it was a denial of due process to admit evidence cannot revive an
appellate challenge after it has been forfeited due to the failure to make a timely and
specific objection. (People v. Geier (2007) 41 Cal.4th 555, 611, overruled on other
grounds in Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305.) Thus, as defendant
made no constitutional objection to any of the three items of evidence, he must first
demonstrate that he properly objected to each item of challenged evidence on state law

24
grounds and that the trial court abused its discretion in overruling the objection; only then
may he argue that the error had an additional legal consequence of violating due process.
(People v. Partida, supra, 37 Cal.4th at pp. 437-438.)
1. Item No. 1: graffiti
Defendant contends that Officer Langarica’s testimony should have been excluded
under section 210 as irrelevant, and under section 1101, subdivision (a), as improper
propensity evidence. Defendant concedes that he did not object to the evidence in the
trial court, but suggests that an objection would have been futile, and asks that we
exercise discretion to reach the issue. He further asserts ineffective assistance of trial
counsel by his failure to object. We agree that any objection to the evidence would have
been futile, as the trial court most certainly would have overruled it as meritless.
Section 1101, subdivision (a) provides that character evidence or evidence of
specific instances of past conduct is inadmissible when offered to prove the defendant’s
conduct on a specified occasion; however, subdivision (b) provides that such evidence is
admissible to “prove some fact (such as motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or accident).” “‘Relevant evidence’ means
evidence, including evidence relevant to the credibility of a witness or hearsay declarant,
having any tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.” (§ 210.)
As we discussed in the last section, the evidence of Officer Langarica’s name as
part of graffiti was relevant to the issue of whether defendant should have known that it
was Officer Langarica’s green Honda pursuing him after the Salas murder; and it was
highly probative of that issue, as it demonstrated the officer’s renown among Avenues
gang members in the Drew Street neighborhood. Further, as the evidence was highly
probative on the issue of knowledge and absence of mistake regarding the status of the
officers, it was not inadmissible propensity or character evidence. (See § 1101, subd.
(b).) Moreover, as there was no suggestion that defendant was responsible for the
graffiti, the evidence did not suggest defendant’s criminal propensity. Counsel’s

25
“[r]epresentation does not become deficient for failing to make meritless objections.”
(People v. Ochoa (1998) 19 Cal.4th 353, 463.)
2. Item No. 2: witness intimidation
Defendant contends that the trial court erred in failing to exclude Real’s testimony
regarding payment to defense lawyers for information used by the gang to intimidate
witnesses. Defense counsel objected to the testimony under section 352, arguing that it
was prejudicial as “damning to people sitting on [the defense] side of the table.”
Although the trial court did not expressly overrule the objection, it permitted Real to
continue his testimony. Real named the three defense attorneys who supplied Real with
information about non-gang member witnesses who would be testifying against Avenues
members.
Defendant also contends that if the evidence was probative of the criminal nature
of the Avenues gang, it was cumulative to evidence of defendant’s gang membership.
The evidence was in fact probative of the gang’s criminal nature. Witness intimidation is
a criminal activity that may prove that a gang is a criminal street gang, which must be
shown to apply the gang enhancement of Penal Code section 186.22, subdivision (b), as
alleged here. (See § 186.22, subd. (e)(8) & (f).) Defendant fails to demonstrate how this
evidence of the criminal nature of the Avenues gang was cumulative to evidence of his
gang membership.
Moreover, defendant failed to assert this ground for the objection in the trial court.
Indeed, the only basis under section 352 which defense counsel articulated was that
evidence of “dirty criminal defense attorneys” would be prejudicial. Counsel did not
argue that it would be more prejudicial than probative, and did not complain that it was
cumulative.12 Defendant has failed to demonstrate that the trial court acted arbitrarily,

12 In defendant’s opening brief, under the heading, “Factual and procedural
background,” defendant refers to the prosecution’s pretrial motion in limine and the
hearing on the motion, including defense counsel’s indication to the court that there had
been several days of gang evidence presented at the preliminary hearing, followed by the
statement: “I assume they are going to have a similar amount, but there does come a
point in time when I may object and say, ‘Your Honor, it’s become cumulative.” We

26
capriciously, or in a patently absurd manner in admitting the testimony. (See People v.
Goldsmith, supra, 59 Cal.4th at p. 266.)
Nor has defendant demonstrated that the admission of the evidence resulted in a
miscarriage of justice. During recess a short while after defense counsel objected to the
testimony, he asked the trial court to consider instructing the jury that the two defense
attorneys in this case were appointed and that this witness (Real) had nothing to do with
retaining them. The prosecutor had no objection, and the court told defense counsel to
prepare such an instruction and work out the language with the prosecutor. Counsel
agreed to do so, and then represented to the court that they had discussed the issue and
agreed on some language. When the jury returned, the trial court instructed: “I just
wanted to advise you of the following, and that is that Mr. Carrillo’s attorneys, that’s
Mr. Andrew Stein and Mr. Jonathan Roberts, were both appointed by the court and were
never retained by witness Francisco Real.”
Although the trial court admonished the jury in the language agreed upon by
counsel, defendant now contends that no instruction could have dispelled the potential
prejudice resulting from tarnishing the image of the two defense attorneys in this case.
We disagree. Any prejudice “‘must be deemed to have been prevented by the court’s
limiting instruction to the jury. We presume that jurors comprehend and accept the
court’s directions. [Citation.] We can, of course, do nothing else. The crucial
assumption underlying our constitutional system of trial by jury is that jurors generally
understand and faithfully follow instructions.’ [Citation.]” (People v. Homick (2012) 55
Cal.4th 816, 866-867.)
As defendant has not shown that the trial court abused its discretion or that the
court’s ruling resulted in a miscarriage of justice, defendant has not preserved a due
process issue. (See People v. Partida, supra, 37 Cal.4th at pp. 437-438.)

reject any implication that such comments amounted to an objection or otherwise
preserved the issue for appeal. To preserve the issue for appeal, an objection must be
made at the time the evidence is actually offered. (People v. Jennings (1988) 46 Cal.3d
963, 975-976, fn. 3.)

27
 C. Effective assistance of counsel
Defendant contends that defense counsel rendered constitutionally ineffective
assistance by eliciting Mallari’s testimony about the murder of Deputy Juan Escalante.
The Sixth Amendment right to assistance of counsel includes the right to the effective
assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 686-674
(Strickland); see also Cal. Const., art. I, § 15.) “Generally, a conviction will not be
reversed based on a claim of ineffective assistance of counsel unless the defendant
establishes both of the following: (1) that counsel’s representation fell below an
objective standard of reasonableness; and (2) that there is a reasonable probability that,
but for counsel’s unprofessional errors, a determination more favorable to defendant
would have resulted. [Citations.] If the defendant makes an insufficient showing on
either one of these components, the ineffective assistance claim fails.” (People v.
Rodrigues (1994) 8 Cal.4th 1060, 1126.)
It is presumed that “counsel’s performance fell within the wide range of
professional competence . . . . Defendant thus bears the burden of establishing
constitutionally inadequate assistance of counsel. [Citations.] If the record on appeal
sheds no light on why counsel acted or failed to act in the manner challenged, an
appellate claim of ineffective assistance of counsel must be rejected unless counsel was
asked for an explanation and failed to provide one, or there simply could be no
satisfactory explanation. [Citation.]” (People v. Carter (2003) 30 Cal.4th 1166, 1211.)
“Judicial scrutiny of counsel’s performance must be highly deferential. It is all too
tempting for a defendant to second-guess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.
[Citation.] A fair assessment of attorney performance requires that every effort be made
to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at
the time.” (Strickland, supra, 466 U.S. at p. 689.)

28
 Defendant refers to cross-examination testimony elicited by defense counsel, as
well as follow-up testimony elicited by the prosecutor on redirect examination. During
cross-examination Mallari testified that in an interview with a detective and the
prosecutor he attempted to trade information for a plea deal by telling his interviewers
that he could help them solve “a bunch of murders that went down years ago,” including
the murder of a police officer. He said he knew “all about this stuff.” Mallari testified
that in another interview, he told detectives that he knew who had murdered Deputy
Escalante. He explained: “I was hoping the information I provided was going to help me
with my case, and I was hoping for it to reduce my time.”
On redirect examination, Mallari testified that he obtained information about the
murder of Deputy Escalante in Cypress Park in August 2008; he had not witnessed the
crime, but knew who was involved. He spoke about it to two detectives from the
Sheriff’s Department, but they promised him nothing.
Defendant contends that defense counsel’s performance was deficient because it
“opened the door to otherwise inadmissible and highly damaging evidence that the
Avenues gang was responsible for the murder of a deputy sheriff.”13 Defendant does not
contend that defense counsel failed to provide an explanation or there simply could be no
satisfactory explanation for the cross-examination. Indeed, he recognizes that the
purpose of the cross-examination was to impeach Mallari’s credibility. His complaint
appears to be that in hindsight, counsel went further than necessary to show Mallari’s
motive in testifying against defendant.14 Hindsight and second-guessing does not satisfy

13 Defendant argues that because Mallari described himself as a trusted associate of
the Avenues gang, the jury would infer that the gang was responsible for the deputy’s
murder. The jury did not need to infer: Real testified without objection that Avenues
gang members were charged with that murder, and that he testified at their preliminary
hearing.

14 Defendant argues, in effect, that defense counsel admitted his error and attempted
to do damage control by arguing to the jury that the evidence was “not relevant” or that it
was “irrelevant.” Counsel did not argue that the evidence was irrelevant; he simply
argued that the murder of Deputy Escalante had “nothing to do with this trial.”

29
defendant’s burden to overcome the presumption that counsel’s performance was
reasonable under prevailing professional norms. (See Strickland, supra, 466 U.S. at pp.
688-689.)
Nor has defendant met his burden to show prejudice by affirmatively
demonstrating “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” (Strickland, supra, 466
U.S. at p. 694.) Defendant argues that prejudice resulted because it was highly
inflammatory to connect the Avenues gang with the death of a deputy sheriff, as it would
lead the jury to conclude that Avenues gang members would also intend to murder
Officers Langarica and Bain. Defendant fails to explain how the absence of the
information that other Avenues gang members murdered a deputy sheriff would lead the
jury to disregard the overwhelming evidence presented in this case that defendant, Leon,
and Gomez intended the armed assault upon the officers, that Leon fired a semiautomatic
assault rifle directly toward the officers, and that the natural and probable consequences
of such an assault was an attempted murder. We conclude that a rational jury would not
have disregarded that evidence and thus, there is no reasonable probability that the
outcome would have been more favorable to defendant without mention of the murder of
Deputy Escalante.
D. Cumulative error
Defendant contends that the cumulative effect of the admission of the three items
of evidence was to deny him a fair trial. Because “[w]e have either rejected on the merits
defendant’s claims of error or have found any assumed errors to be nonprejudicial,” we
must reject defendant’s claim of prejudicial cumulative effect. (People v. Sapp (2003) 31
Cal.4th 240, 316.)
IV. Section 12022.53
A. Equal protection
Defendant contends that the sentence enhancement imposed under section
12022.53 violated his constitutional rights to equal protection and due process. When

30
read together, subdivisions (d) and (e)(1) of section 12022.53 require the trial court to add
a consecutive 25 years to life term to the sentence of a defendant convicted of murder or
attempted murder for the benefit of a criminal street gang, when the jury finds that a
principal in the offense personally and intentionally discharged a firearm, causing death
or great bodily injury to the victim. In non-gang cases, the 25 years to life term is
imposed only on the principal who intentionally discharged the firearm. (See § 12022.53,
subd. (d).)
“Broadly stated, equal protection of the laws means ‘that no person or class of
persons shall be denied the same protection of the laws which is enjoyed by other persons
or other classes in like circumstances in their lives, liberty and property and in their
pursuit of happiness.’ [Citation.]” (People v. Wutzke (2002) 28 Cal.4th 923, 943.) In
making such a claim, the defendant bears the burden to show “‘that the state has adopted
a classification that affects two or more similarly situated groups in an unequal manner.’
[Citations.]” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199, overruled on other
grounds in Johnson v. Department of Justice (2015) 60 Cal.4th 871, 879.) “Where . . . a
statute involves neither a suspect class nor a fundamental right, it need only meet
minimum equal protection standards, and survive ‘rational basis review.’ [Citation.]”
(People v. Turnage (2012) 55 Cal.4th 62, 74 (Turnage).)
Defendant argues that a person who aids and abets the personal use or discharge of
a firearm in a gang case is similarly situated to the aider and abettor in a non-gang case,
simply because the aider and abettor commits the same acts in each case. We disagree.
“Unlike other aiders and abettors who have encouraged the commission of a target
offense resulting in a murder, defendants committed their crime with the purpose of
promoting and furthering their street gang in its criminal conduct.” (People v. Gonzales
(2001) 87 Cal.App.4th 1, 13 (Gonzales).) We also reject defendant’s contention that the
statute is subject to strict scrutiny because it involves a fundamental liberty interest.
There is no fundamental interest in the specific term of imprisonment a criminal
defendant might receive. (Turnage, supra, 55 Cal.4th at p. 74; People v. Wilkinson
(2004) 33 Cal.4th 821, 838.)

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 As defendant acknowledges, two other appellate courts have applied the rational
basis test to reject similar equal protection challenges to section 12022.53. (People v.
Hernandez (2005) 134 Cal.App.4th 474, 480-483 (Hernandez); Gonzales, supra, 87
Cal.App.4th at pp. 12-13.) The state has a legitimate interest in suppressing criminal
street gangs and “‘the serious threats posed to the citizens of California by gang members
using firearms’”; this rationally justifies a greater punishment for those who aid and abet
gang related shootings that result in death or great bodily injury. (Hernandez, at pp. 481-
482, fn. omitted.) Thus the greater punishment provided by section 12022.53 under such
circumstances “‘is not prohibited by the equal protection clause from striking the evil
where it is felt the most.” (Id. at p. 482, fn. omitted; see also Gonzales, at pp. 12-13.)
We agree with the reasoning of those cases and find no merit to defendant’s equal
protection claim.
B. Due process
Defendant cites the rule that conviction as an aider and abettor requires proof that
the aider and abettor had knowledge of the intent and criminal purpose of the perpetrator.
(See People v. Beeman (1984) 35 Cal.3d 547, 555.) Then, relying on that rule, defendant
contends that section 12022.53, subdivision (e) violates due process by imposing
vicarious liability to increase the sentence of the aider and abettor without proof that he
knew or intended that the perpetrator would commit homicide by the use or discharge of
a firearm. Without further discussion, defendant concludes that the statute therefore
violates due process, citing In re Winship (1970) 397 U.S. 358 [due process requires
proof beyond reasonable doubt of every fact necessary constituting the crime], and
Mullaney v. Wilbur (1975) 421 U.S. 684 [prosecution’s burden to negate heat of passion].
These cases do not hold that due process prohibits firearm enhancements for an
aider and abettor unless the aider and abettor knew and intended that the crime he
intended to facilitate was going to be committed with a gun. Moreover, a firearm
enhancement is not an element of a crime; and it does not define a crime, but rather the
circumstances under which the crime is committed.

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 To further the legislative intent to counter “the serious threats posed to the citizens
of California by gang members using firearms,” section 12022.53, subdivision (e) was
“expressly drafted to extend the enhancement for gun use in any enumerated serious
felony to gang members who aid and abet that offense in furtherance of the objectives of
a criminal street gang. Section 12022.53, subdivision (e) is precisely the clear expression
of legislative intent to extend an enhanced penalty to aiders and abettors” without any
requirement to prove the aider and abettor’s knowledge or intent regarding the firearm.
(Gonzales, supra, 87 Cal.App.4th at pp. 15, 19; accord, Hernandez, supra, 134
Cal.App.4th at p. 483.) Defendant has not demonstrated that application of the statute
violates due process.
V. Active participation in criminal street gang
Defendant contends that the special circumstance provision of section 190.2,
subdivision (a)(22), is unconstitutionally vague, as it did not did not give him adequate
notice of what conduct would trigger the punishment it provides. He concludes that the
true finding under that provision must be stricken.
Section 190.2, subdivision (a)(22), provides the death penalty or imprisonment for
life without the possibility of parole for a defendant who is found guilty of murder in the
first degree if the following special circumstance has been pled and proven: “The
defendant intentionally killed the victim while the defendant was an active participant in
a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder
was carried out to further the activities of the criminal street gang.”
Section 186.22 is part of the California Street Terrorism Enforcement and
Prevention Act, also known as the STEP Act; and as defendant concedes, the California
Supreme Court has held that the terms, “actively participates” and “active participation”
as used in the STEP Act, are not unconstitutionally vague and do not fail to give fair
warning of the prohibited conduct. (People v. Castenada (2000) 23 Cal.4th 743, 744-
745, 751-752.) Defendant also acknowledges that we are bound by the court’s
interpretation. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
However, defendant disagrees with its reasoning, and raises the issue in order to preserve

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it for further appeal. We defer to the California Supreme Court and reject defendant’s
due process challenge.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________________, J.
CHAVEZ
We concur:

__________________________, Acting P. J.
ASHMANN-GERST

__________________________, J.
HOFFSTADT

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