People v. Torres CA2/6

Filed 3/1/21 P. v. Torres CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B302227
(Super. Ct. No. 18CR80029)
Plaintiff and Respondent, (Santa Barbara County)

v.

LEONEL ADRIAN TORRES,

Defendant and Appellant.

Leonel Adrian Torres appeals the judgment entered after a
jury had convicted him of second degree murder. (Pen.Code, §§
187, subd. (a), 189).1 The jury found true an allegation that he
had committed the crime for the benefit of a criminal street gang.

Unless otherwise stated, all statutory references are to
1

the Penal Code.
(§ 186.22, subd. (b)(1).) He was sentenced to prison for 15 years
to life.2
Appellant contends that the evidence is insufficient to
support his murder conviction. In addition, he claims that the
trial court erroneously (1) excluded testimony by his expert
witness, and (2) denied his request for an instruction on
accomplice testimony. We affirm.
Facts
Appellant, Arturo Palomar, Jose Morales, and Miguel
Aguilera were members of the Guadalupe criminal street gang.
Francisco Rodriguez was an associate of the gang. The gang
claimed as its territory the small city of Guadalupe in the County
of Santa Barbara.
Appellant’s gang moniker was “Travieso,” which “means
trouble maker” in Spanish. Erica Venegas, who was dating
appellant, said she knew he “was a shot caller” because “other
gang members would do what he told them to do.” They “looked
up to” appellant.
In August 2008 appellant, Palomar, Morales, Aguilera, and
Rodriguez drove in Palomar’s vehicle to a liquor store in
Guadalupe to buy beer. Aguilera remained in the vehicle while
his companions walked into the store. Aguilera and Rodriguez
testified at trial as prosecution witnesses.

2This is the prescribed punishment for second degree
murder. (§ 190, subd. (a).) No additional punishment could have
been imposed for the gang enhancement. (See People v.
Sengpadychith (2001) 26 Cal.4th 316, 320 [“The gang
enhancement provision does not . . . increase the maximum term
of imprisonment for felonies punishable by life imprisonment”].)

2
 The victim, James Christie, entered the store to buy a beer
but quickly walked outside. Christie was a member of the
Northwest gang in Santa Maria. Appellant asked him, “‘[W]here
you from?’” or “‘[W]ho the fuck are you?’” Christie responded,
“‘Wicked from Santa Maria Northwest.’” Rodriguez explained the
significance of Christie’s response: “Northwest and Guadalupe
are rival gangs. So usually if somebody from Santa Maria is in
Guadalupe . . . , there’s going to be a fight or some kind of
confrontation.” “Just the fact that [someone from Santa Maria
Northwest is] there is disrespect[ful]” to the Guadalupe gang.
The gang thinks “that they own [the city of] Guadalupe.”
Rodriguez continued: Appellant took a swing at Christie,
and then “they both start[ed] swinging at each other.” Morales
and Palomar were “trying to pick shots [at Christie] while
[appellant] was trying to fight with him.” “Christie knew it
wasn’t going to be a fair fight at that point [so] . . . he was just
backing up.”
Rodriguez said, “‘[H]ey, just let them fight one on one.’”
Appellant and Christie walked into the middle of the street and
started fighting “one on one.” Appellant “grabbed [Christie] by
the waist, picked him up and tried to slam him” into the asphalt
street. Both fell to the ground. Palomar “threw a kick” at
Christie while he was on the ground. Christie stood up, and
Aguilera threw a bottle at him. The bottle missed Christie and
broke on the ground behind him.
Christie “started backing up towards the door” of the store.
Morales, Palomar, and appellant pursued him. Morales and
appellant kicked Christie. Palomar “threw a punch.”
In an attempt to stop the fight, Rodriguez put himself
between Christie and his pursuers. Appellant was “trying to get

3
around [Rodriguez] to get closer to Mr. Christie to . . . re-engage
him.”
Rodriguez asked Christie, “‘[W]hat you got going on here,
Wicked?’” Christie responded that he was visiting his cousin,
Guero, “‘from Northwest, Santa Maria Northwest,’” the same
gang to which Christie belonged.
In a loud voice Rodriguez said to Christie, “‘[W]hy don’t you
just go inside with the cameras.’” Rodriguez was referring to
surveillance cameras inside the store. He wanted to let everyone
“know that we were all incriminating ourselves on camera right
now, and if anything did happen, we were all going . . . to go
down the river for it.” Christie went inside the store, and
Aguilera told him to stay there. Rodriguez and Aguilera walked
away toward Palomar’s vehicle.
Palomar retrieved a knife from the vehicle’s glove
compartment and appeared to put it in his back pocket. He
“position[ed] himself [outside] on the right side of the door” to the
store.
Christie started to walk out of the store toward appellant.
“[T]hey were both looking at each other ready to start another
confrontation with each other.” Christie could not see Palomar
standing outside at the side of the doorway. Rodriguez testified:
“And once [Christie] walked out of that doorway looking right at
[Torres], that’s when I seen Art Palomar lunge at [Christie] with
what I thought was a sucker punch [to the right upper chest]
until he pulled back . . . [and] I could see the knife come out all
full of blood.” “[I]t was just a big knife that needed to be in a
sheath.”

4
 The knife cut two blood vessels, including the superior vena
cava, which drains blood from the neck into the heart. Christie
bled to death.
After the stabbing, appellant immediately “turn[ed] around
and bolt[ed] off . . . towards the store that was across the street.”
Everyone entered Palomar’s vehicle, which drove away.
Aguilera testified that he “had no idea” that Palomar was
going to stab Christie. “I’ve never seen him do anything like
that.” However, after the incident Aguilera told Rodriguez that
Palomar had asked him to get the knife from the car. Aguilera
refused. He “told [Palomar] to leave that shit in there.”
Appellant fled to Mexico. In 2016 he was extradited to the
United States.
Gang Culture
Deputy Steven Gonzales, a gang expert, testified: The “3
R’s” of the gang world are “[r]espect, retaliation and reputation.”
A gang member will kill to gain respect or avoid being
disrespected. One way of gaining respect is to attack a rival gang
member.
If a member of the Guadalupe gang asked someone where
he was from and the person responded that he was from a rival
gang, a fight would ensue. If the rival gang member does not
back down, “[t]here’s going to be escalation.” Guadalupe gang
members will “pick up a weapon, a knife, or anything they can
get their hands on . . . to inflict more damage.” A gang member
who uses a weapon gains respect because “[h]e is reverting to
whatever he can to win a fight.”
If Christie had “pretended to be knocked out, they probably
would have left him alone. But he refused to go down. He was a
true fighter. [¶] . . . [T]he three [Guadalupe gang members] that

5
were jumping him . . . couldn’t get the job done. Therefore they
are going to need weapons to end it . . . .”
Rodriguez testified: In refusing to back down, Christie
“acted like a good gang member.” “[I]n terms of the gang
culture,” the Guadalupe gang members “had to escalate and they
did exactly what they were supposed to do.” They would “have
lost face” if Christie had been able to hold his own against them.
By fighting back, Christie showed disrespect for the Guadalupe
gang. “He should have been running.” “We expect our gang to be
feared.” The Guadalupe gang members had “to make sure that
he has some kind of bodily harm done to him.” They would be
expected “to escalate . . . to weapons if they couldn’t handle it
with their fists.” If a Guadalupe gang member kills a rival gang
member, “[i]t brings a lot of respect to the [Guadalupe] gang” as
well as to the killer.
Prior Appellate Court Decision
In a nonpublished opinion, People v. Palomar et al.
(B226769, Jan. 9, 2012), we affirmed the judgments entered after
a jury had convicted Palomar of first degree murder and Morales
of second degree murder. The issues in the prior appeal are
different from those in the present appeal.
Jury Instructions: Different Theories of Second Degree Murder
The jury was instructed on two different theories of second
degree murder: direct aiding and abetting, and implied malice.
“[U]nder direct aiding and abetting principles, an accomplice is
guilty of an offense perpetrated by another if the accomplice aids
the commission of that offense with ‘knowledge of the direct
perpetrator’s unlawful intent and [with] an intent to assist in
achieving those unlawful ends.’” (People v. Gentile (2020) 10
Cal.5th 830, 843 (Gentile).) “[D]irect aiders and abettors of

6
murder . . . necessarily ‘know and share the murderous intent of
the actual perpetrator.’” (People v. Offley (2020) 48 Cal.App.5th
588, 596.) On the other hand, “[i]mplied malice does not require
an intent to kill. Malice is implied when a person willfully does
an act, the natural and probable consequences of which are
dangerous to human life, and the person knowingly acts with
conscious disregard for the danger to life that the act poses.”
(People v. Gonzalez (2012) 54 Cal.4th 643, 653 (Gonzalez).)
Appellant contends: “The record does not disclose which
theory the jury relied on in convicting [him] of second degree
murder. Thus, this Court must determine whether there was
sufficient evidence supporting his conviction under each theory of
second degree murder.” Appellant is mistaken. “Generally
speaking, ‘[w]hen a jury is instructed on two theories of first [or
second] degree murder, a first [or second] degree murder verdict
will be upheld [even] if there is insufficient evidence as to one of
the theories.’ [Citation.] In such cases, where ‘the inadequacy of
proof’ as to one of the theories of . . . murder is ‘purely factual,’ it
is presumed that the jury is ‘fully equipped to detect’ the
deficiency and must have relied on the other, factually valid
theory. [Citation.] [¶] But this presumption does not apply if
there is ‘an affirmative indication in the record that the verdict
actually did rest on the inadequate ground.’” (People v. Wear
(2020) 44 Cal.App.5th 1007, 1021.)
As appellant acknowledges, “[t]he record [here] does not
disclose which theory the jury relied on . . . .” Thus, we will
affirm if either theory of murder is supported by substantial
evidence. As we explain below, substantial evidence supports the
implied malice theory of second degree murder. We therefore
need not consider whether substantial evidence also supports

7
appellant’s conviction on the alternative theory that he was a
direct aider and abettor of the murder.
Implied Malice Theory Survives Senate Bill 1437
“In 2018, the Legislature enacted Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill 1437) . . . .” (Gentile, supra,
10 Cal.5th 830, 838.) Senate Bill 1437 eliminated murder
liability under the natural and probable consequences doctrine.
(Id. at pp. 843, 847-848.) Pursuant to this doctrine, “an
accomplice is guilty not only of the offense he or she directly
aided or abetted (i.e., the target offense), but also of any other
offense committed by the direct perpetrator that was the ‘natural
and probable consequence’ of the crime the accomplice aided and
abetted (i.e., the nontarget offense).” (Id. at p. 843.)
The implied malice theory of second degree murder
contains a “natural and probable consequences” element – the
perpetrator must willfully commit “an act, the natural and
probable consequences of which are dangerous to human
life . . . .” (Gonzalez, supra, 54 Cal.4th at p. 653.) This element is
distinct from the natural and probable consequences doctrine,
which “allowed [a defendant] to be convicted of murder without
personally possessing malice aforethought. So long as the direct
perpetrator possessed malice, and the killing was a natural and
probable consequence of the crime the defendant aided and
abetted, it did not matter whether the defendant intended to kill
or acted with conscious disregard for human life.” (Gentile,
supra, 10 Cal.5th at p. 845.) Unlike the natural and probable
consequences doctrine, “[f]or implied malice, the intent
requirement is satisfied by proof that the actual perpetrator
‘“knows that his conduct endangers the life of another and . . .
acts with conscious disregard for life.”’ [Citation.] Therefore,

8
notwithstanding Senate Bill 1437’s elimination of natural and
probable consequences liability for second degree murder, an
aider and abettor who does not expressly intend to aid a killing
can still be convicted of second degree murder if the person knows
that his or her conduct endangers the life of another and acts
with conscious disregard for life.” (Id. at p. 850.)
Substantial Evidence Supports Conviction
Based on Implied Malice Theory
Appellant claims that the evidence is insufficient to support
his conviction of second degree murder based on an implied
malice theory. “In assessing a claim of insufficiency of evidence,
the reviewing court’s task is to review the whole record in the
light most favorable to the judgment to determine whether it
discloses substantial evidence—that is, evidence that 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. Rodriguez (1999) 20 Cal.4th 1, 11.)
There are two prongs to the implied malice theory. The
first prong is that “a person willfully does an act, the natural and
probable consequences of which are dangerous to human
life . . . .” (Gonzalez, supra, 54 Cal.4th at p. 653.) Appellant
argues that the evidence is insufficient to support the first prong:
“Certainly, there was a danger of great bodily injury because four
gang members were engaged in a weaponless fight with a rival
gang member. But the danger was not to human life. ‘Although
an act that will certainly lead to death is not required, the
probability of death from the act must be more than remote or
merely possible.’ [Citation.] [¶] Here it was merely possible that
Christie would end up dead.”

9
 We disagree. A reasonable trier of fact could find beyond a
reasonable doubt that the natural and probable consequences of
appellant’s acts were dangerous to human life. Appellant issued
a gang challenge to Christie when he said, “‘[W]here you from?’”
or “‘[W]ho the fuck are you?’” Deputy Gonzales explained: “He is
protecting his town. He is protecting his territory.” Gonzales
opined that, if Christie said he was from a rival gang, he was
“going to get jumped” by appellant and the other Guadalupe gang
members. This is exactly what happened.
Appellant and the other Guadalupe gang members could
not reasonably expect that Christie would retreat from the fight.
If he had retreated, he would have lost face within his own gang.
Deputy Gonzales opined that Christie did what a gang member is
“expected to do. They fight and they fight to the death . . . .”
Another gang expert, Detective Michael Parker, testified that a
gang member who did not stand up to rival gang members would
be “disrespecting [his] own gang by [his] failure to act” and could
be “kicked out of the gang.”
Deputy Gonzales explained that, if Christie did not back
down, “[t]here’s going to be escalation.” If the Guadalupe gang
members had allowed Christie to defy them without suffering
harm, they would have lost face within their gang. Thus, they
had “to find a way to put him down.” The gang members who
“were jumping him . . . couldn’t get the job done. Therefore they
are going to need weapons to end it; i.e., knives, bottles, bats,
brass knuckles, anything you can get your hands on to cause
more damage to make this guy go down.”
The second prong of implied malice is that “the person
knowingly acts with conscious disregard for the danger to life
that the act poses.” (Gonzalez, supra, 54 Cal.4th at p. 653.)

10
Appellant argues that he “engaged in the fistfight with Christie
with the intent to hurt him, perhaps hurt him badly, but acted
with only conscious disregard of the risk of serious bodily injury,
not conscious disregard of the danger to human life.”
A reasonable trier of fact could find beyond a reasonable
doubt that appellant knowingly acted with conscious disregard
for the danger to life that his acts posed. As a gang member, he
must have known that the answer to his challenge “‘[W]here you
from?’” or “‘[W]ho the fuck are you?’” could lead to violence. (See
People v. Medina (2009) 46 Cal.4th 913, 922 (Medina) [former
gang member testified that “a gang member’s query ‘where are
you from?’ means ‘what gang are you from?’ and is a verbal
challenge, which (depending on the response) could lead to a
physical altercation and even death”].) When Christie answered
that he was from a rival gang, appellant started the fight by
throwing the first punch. In closing argument to the jury,
appellant’s counsel said, “[Appellant] started the fight, he knows
if he hadn’t started that fight Mr. Christie would most likely be
alive today.”
Appellant surely knew that, if he started a fight with a
rival gang member, the other Guadalupe gang members would
come to his assistance. “Once the fight ensued, the three men
[appellant, Morales, and Palomar] could not get [Christie] down.
Despite being attacked and outnumbered by three aggressors,
[Christie] defended himself well and held his own. . . . Given the
gang-related purpose of the initial assault and the fact that,
despite being outnumbered, [Christie] exhibited strength against
three aggressors who could not avenge themselves in response to
what they considered disrespectful behavior by [Christie], the
jury could reasonably have found that a person in [appellant’s]

11
position (i.e., a gang member) would have or should have known
that retaliation was likely to occur and that escalation of the
confrontation to a deadly level was reasonably foreseeable . . . .”
(Medina, supra, 49 Cal.4th at pp. 922-923.)
Appellant’s continuation of the fight under these
circumstances showed a conscious disregard for Christie’s life.
“Given the great potential for escalating violence during gang
confrontations, it is immaterial whether [appellant] specifically
knew [Palomar] had a [knife].” (People v. Montes (1999) 74
Cal.App.4th 1050, 1056.) Deputy Gonzales testified that gang
members commonly use weapons during gang fights. Gonzales
opined: “Any [kind] of gang fight can go bad.” A “guy could get
stabbed and get killed.” Rodriguez testified that the Guadalupe
gang members would be expected “to escalate . . . to weapons if
they couldn’t handle it with their fists.”
Appellant had personal experience of how a gang
confrontation can lead to the use of deadly force. When appellant
was a 17-year-old gang member, he “had been stabbed in the
back and suffered a punctured lung.” The stabbing was gang
related.
Appellant and Rodriguez recorded a gangster rap song that
shows appellant knew disrespect by a rival gang member, such as
Christie, could have deadly consequences. The song includes the
lyrics, “‘[I]f he ain’t showin’ respect we will loc[k] that ese with a
tech.’” The lyrics mean that, if a rival gang member fails to show
respect for Guadalupe gang members, they will shoot the rival
gang member with a TEC-9, a semiautomatic firearm.
Exclusion of Defense Expert’s Testimony on Crime Statistics
Dr. Edwina Barvosa was one of appellant’s expert
witnesses. Appellant argues that the trial court erroneously

12
excluded her testimony concerning statistics for nonhomicide
violent offenses, such as assaults, committed in Guadalupe.
Defense counsel told the trial court that the statistics would show
“there’s a very low crime rate in Guadalupe, specifically
homicides. There was [only] one from 2001 to 2017.” Thus,
Guadalupe is “a great place to live in terms of crime rates
typically. [And] that is relevant to [appellant’s] subjective
knowledge of what happens in Guadalupe.” Because the gang
assault against Christie occurred in Guadalupe, counsel argued
that the natural and probable consequences of the assault were
not dangerous to human life. Counsel stated, “[H]ere in sleepy
Guadalupe this stuff [a murder] never happens. . . . No one ever
dies.” “It’s far more foreseeable [that someone is probably going
to die] . . . in an area where there’s far more crime.” We take
judicial notice that, according to the United States Census
Bureau, in April 2010 the population of Guadalupe was 7,080.
[as of Jan. 5, 2021], archived at
.
The trial court allowed Dr. Barvosa to testify that, with the
exception of the killing of Christie, no homicides were committed
in Guadalupe between 2001 and 2008. The court did not allow
her to testify concerning the crime rate for assaults in Guadalupe
during this period.
“In general, we review the trial court’s exclusion of evidence
for abuse of discretion.” (People v. Herrera (2016) 247
Cal.App.4th 467, 475.) The trial court did not abuse its
discretion. Only relevant evidence is admissible. (Evid. Code,
§ 350.) “‘Relevant evidence’ means evidence . . . having any
tendency in reason to prove or disprove any disputed fact that is

13
of consequence to the determination of the action.” (Id., § 210.)
Evidence that Guadalupe had a low crime rate for assaults did
not have a tendency in reason to disprove implied malice, i.e.,
disprove that the natural and probable consequences of the gang
assault against Christie were dangerous to human life and that
appellant knowingly acted with conscious disregard for human
life. (Gonzalez, supra, 54 Cal.4th at p. 653.)
What matters were the circumstances surrounding the
gang assault against Christie, not whether the assault occurred
within the confines of Guadalupe or outside the city limits. There
is no evidence that appellant was aware of the violent crime
statistics for Guadalupe. The People note that there is also no
evidence “that appellant . . . believed a magical border around
Guadalupe ensured that deadly gang violence only occurred
outside the border.” When he was 17 years old, appellant was the
victim of a gang-related stabbing in Guadalupe.
Appellant contends that the trial court erroneously
excluded Dr. Barvosa’s testimony comparing crime “statistics in
Guadalupe with those in other jurisdictions such as Oakland.”
The People argue that the contention is forfeited because “the
defense [never] asked to present crime statistics from
‘jurisdictions such as Oakland,’ let alone made an offer of proof as
to what such statistics would have been.”
In his reply brief appellant argues that the contention is
not forfeited because in their written motion to exclude Dr.
Barvosa’s testimony, the People alleged, “[Appellant] proposes to
have his expert use FBI statistics comparing Oakland to
Guadalupe to support [his] claim that [he] would not have
subjective knowledge to expect a homicide to occur.”
(Underlining omitted.) But at the hearing on the People’s motion

14
to exclude, neither defense counsel nor Dr. Barvosa indicated
that they intended to introduce evidence of Oakland’s crime
statistics. The only city they mentioned was Guadalupe, and the
trial court’s ruling pertained to Guadalupe’s crime statistics.
Appellant’s contention is forfeited because he failed (1) to make
an offer of proof as to the relevance of Oakland’s crime statistics
(Evid. Code, § 354, subd. (a)); and (2) to secure a ruling on the
statistics’ admissibility. (People v. Rowland (1992) 4 Cal.4th 238,
259 [“‘[T]he absence of an adverse ruling precludes any appellate
challenge.’ [Citation.] In other words, when, as here, the
defendant does not secure a ruling, he does not preserve the
point”].) In any event, for the same reasons that Guadalupe’s
crime statistics were irrelevant, a comparison of Guadalupe’s and
Oakland’s crime statistics were also irrelevant.
Exclusion of Defense Expert’s
Testimony on “Validity Illusion”
Pursuant to Evidence Code section 352, the trial court
excluded Dr. Barvosa’s testimony on the “validity illusion.” Dr.
Barvosa explained: “Validity illusion is a form of unconscious
bias by which we as human beings will defer to a coherent story,
a story that sounds good and whole, even if the story does not
comport to or is supported by evidence.” “Validity illusion offers
a story that obscures underlying facts that are verifiable.”
As an example of the validity illusion, Dr. Barvosa cited
Deputy Gonzales’s alleged testimony “that all gangs reach the
level of a syndicate type gang. They are tight, cohesive
organizations that make money through illicit, illegal activity.”
Dr. Barvosa said “the testimony from [Deputy] Gonzales . . . is
that [Guadalupe] is one of the more extreme syndicate type gangs
. . . .” The trial court responded, “I never heard the word

15
syndicate used by Deputy Gonzales at any point, and I can’t
remember him trying to amplify the Guadalupe gang as being on
a par with the prison gangs . . . .” Another example of the
validity illusion was Gonzales’s alleged testimony that gang
members cannot leave the gang.
Evidence Code section 352 provides: “The court in its
discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.” “Exclusion of evidence as more
prejudicial, confusing or distracting than probative, under
Evidence Code section 352, is reviewed for abuse of discretion.”
(People v. Holloway (2004) 33 Cal.4th 96, 134.)
Appellant has failed to carry his burden of showing that the
trial court abused its discretion. (See Geffcken v. D’Andrea (2006)
137 Cal.App.4th 1298, 1307 [burden is on appellant].) He did not
explain to the trial court how Dr. Barvosa’s testimony on the
validity illusion would tend to disprove that he had acted with
implied malice.
Moreover, appellant has not explained to this court how the
exclusion of Dr. Barvosa’s testimony “resulted in a miscarriage of
justice.” (Evid. Code, § 354.) “[A] ‘miscarriage of justice’ should
be declared only when the court, ‘after an examination of the
entire cause, including the evidence,’ is of the ‘opinion’ that it is
reasonably probable that a result more favorable to the appealing
party would have been reached in the absence of the error.”
(People v. Watson (1956) 46 Cal.2d 818, 836.) Rodriguez
corroborated Deputy Gonzales’s testimony about gang culture

16
and the danger that the fight would escalate to a deadly level.
(See ante, pp. 6-7.)
Trial Court’s Refusal to Give
Instruction on Accomplice Testimony
Appellant maintains that the trial court erroneously denied
his request to instruct the jury on accomplice testimony pursuant
to CALCRIM No. 334. Defense counsel argued, “I think there’s
plenty of evidence that could suggest that Aguilera or Rodriguez
could be an accomplice.” “An accomplice is . . . one who is liable
to prosecution for the identical offense charged against the
defendant on trial . . . .” (§ 1111.)
CALCRIM No. 334 provides that the testimony “of an
accomplice that tends to incriminate the defendant should be
viewed with caution.” The instruction continues: “If you decide
that a witness was an accomplice, then you may not convict the
defendant of [the charged crime] based on his or her testimony
alone. You may use testimony of an accomplice that tends to
incriminate the defendant to convict the defendant only if: [¶] 1.
The accomplice’s testimony is supported by other evidence that
you believe; [¶] 2. That supporting evidence is independent of the
accomplice’s testimony; AND [¶] 3. That supporting evidence
tends to connect the defendant to the commission of the crime.”
“‘If there is evidence from which the jury could find that a
witness is an accomplice to the crime charged, the court must
instruct the jury on accomplice testimony. [Citation.] But if the
evidence is insufficient as a matter of law to support a finding
that a witness is an accomplice, the trial court may make that
determination and, in that situation, need not instruct the jury
on accomplice testimony. [Citation.]’” (People v. Lewis (2001) 26
Cal.4th 334, 369.)

17
 The trial court determined that the evidence was
insufficient as a matter of law to support a finding that Rodriguez
or Aguilera had been an accomplice to the crime charged –
Palomar’s murder of Christie through a vicious knife attack. The
trial court did not err. When Palomar asked Aguilera to get the
knife from the vehicle, Aguilera refused. He “told [Palomar] to
leave that shit in there.” Rodriguez tried to stop the fight by
putting himself between Christie and his pursuers. He told
Christie to “‘go inside [the store] with the cameras.’” Rodriguez
hoped that the Guadalupe gang members would not assault
Christie inside the store if they realized their actions were being
recorded by surveillance cameras. Christie went inside the store,
and Aguilera told him to stay there. Rodriguez and Aguilera
disengaged from the fight by walking away toward Palomar’s
vehicle.
In his reply brief appellant states that Rodriguez and
Aguilera “unsuccessfully attempted to defuse tensions and break
up the fight.” But in his opening brief appellant asserts that
Aguilera’s status as an accomplice is supported by Rodriguez’s
testimony that Aguilera threw a bottle at Christie. Even if
Aguilera had been an accomplice, the failure to give CALCRIM
No. 334 would have been harmless error. Rodriguez was not an
accomplice, and his testimony was more than sufficient to convict
appellant of implied malice murder. The trial court declared, “I
don’t see [Rodriguez] responsible for a murder. He tried to stop
it. I don’t see any acts in agreement [with the other Guadalupe
gang members].” Not only was Rodriguez’s testimony sufficient
in itself to convict appellant, it corroborated Aguilera’s testimony.
Finally, the refusal to give CALCRIM No. 334 was not
prejudicial because Rodriguez’s and Aguilera’s testimony was

18
corroborated by Erica Venegas, who had a dating relationship
with appellant. Venegas testified that appellant had told her
“that he was involved in a fight” and that Palomar had stabbed
someone. Appellant also told Venegas that “he [had] picked [the
victim] up over his head.” “‘Corroborating evidence may be slight
[and] may be entirely circumstantial’ [citation], and although
that evidence must implicate the defendant in the crime and
relate to proof of an element of the crime, it need not be sufficient
to establish all the elements of the crime.” (People v. Williams
(2008) 43 Cal.4th 584, 638.)
Disposition
The judgment is affirmed.
NOT TO BE PUBLISHED.

YEGAN, Acting P. J.

We concur:

PERREN, J.

TANGEMAN, J.

19
 James K. Voysey, Judge

Superior Court County of Santa Barbara

______________________________

Mark D. Lenenberg, under appointment by the Court of
Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, Marc A. Kohm, Deputy Attorney General, for
Plaintiff and Respondent.