Not to be published in the official reports california Rules of Court, rule 1115

Ricardo Manuel Nava, Jr., Ruben Nicholas Mize, Bryan Steven Medinilla, and Raul Junior Diaz appeal the judgments entered against them following two jury trials. In the first trial, appellants were charged with the murder of Lorenzo Carachure (Pen. Code,¹ § 187, subd. (a)), the attempted murders of Noe Carachure and Rogelio Hernandez (§§ 187, 664), and active participation in a criminal street gang (§ 186.22, subd. (a)). Mize was separately charged with the attempted murder of Prospero Sotelo.² Appellants were convicted of the substantive gang offense, and Mize was convicted of the attempted murder of Sotelo. The jury was unable to reach a verdict on the remaining counts, and the court declared a mistrial as to those charges. On retrial, Mize and Medinilla were found guilty of first degree murder (§ 187, subd. (a)), and Nava and Diaz were convicted of second degree murder. The jury also found true allegations that the murder was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), and that Mize and Medinilla personally used a deadly weapon in committing the offense (§ 12022, subd. (b)(1)). Appellants were found not guilty of the attempted murders of Noe Carachure and Rogelio Hernandez. In a bifurcated proceeding, Nava admitted two prior serious or violent felony strike convictions (§§ 667, subds. (a)(1), (b) - (i), 1170.12, subds. (a) - (d)). The trial court sentenced Medinilla to a total term of 26 years to life in state prison, and Mize to a total term of 41 years to life. Nava and Diaz were each sentenced to state prison terms of 15 years to life.³

Appellants contend (1) the court abused its discretion in refusing to bifurcate the gang allegations; (2) the court erred in failing to give accomplice instructions for witness Lucero Uribe; (3) the court erred in limiting appellants' arguments regarding their ages and its effect on their ability to premeditate; (4) the sentences imposed for the gang offense should have been stayed under section 654; and (5) cumulative error compels the reversal of their convictions.⁴ Nava, Medinilla, and Diaz also contend the court abused its discretion in denying their motion to sever Mize's trial. Diaz and Nava further claim the court erred in denying their motion for a mistrial, while Nava also challenges the sufficiency of the evidence supporting his murder conviction. Medinilla separately challenges the court's failure to modify the jury instructions on vicarious liability (CALCRIM No. 400). Mize additionally faults the court for admitting evidence of two rap songs he wrote, and failing to instruct on assault with a deadly weapon as a lesser offense of the charge of the attempted murder of which he was convicted. We shall order the three-year concurrent sentences imposed for the active gang participation count stayed under section 654. Otherwise, we affirm.

STATEMENT OF FACTS

In July 2007, appellants were active members of Santa Barbara's Eastside gang (Eastside). Eastside's primary criminal gang activities are assaults with deadly weapons, murders and attempted murders, and witness intimidation. As an Eastside "shot-caller," Mize made decisions for the gang and directed the activities of its members.

Eastside's primary rival is the Westside gang (Westside). Predictably, Eastside claims the east side of Santa Barbara as its territory, while Westside claims the west side. Eastside members, who refer to themselves as "Eastsiders," designated the Pennywise store on Montecito Street as their primary "hangout." Westside members, or "Westsiders," usually gathered at either the Guadalajara Market on San Pascual Street, or the nearby Westside Boys and Girls Club.

From 2006 through 2008, Eastsiders and Westsiders engaged in approximately 200 knife fights. Shortly before the murder of which appellants were convicted, Westsider Richard Garcia stabbed Mize's brother, Eastsider Robert Martinez. Martinez survived. Eastside then issued a "green light" on Garcia, which meant he was to be killed in retaliation for the attack.

Lucero Uribe was Mize's girlfriend. On the night of July 16, 2007, Uribe's brother Carlos Diaz drove Uribe and her friend Carla Neri to the Pennywise store on Montecito Street. Carlos⁵ was not a gang member, but he knew Mize through Uribe. Carlos waited in his truck while Uribe and Neri went in the store. Appellants were at the store with Emilio Mora, an Eastside shot-caller.⁶ Either Mize or Medinilla asked Uribe if Carlos would give them a ride to the west side of town. Uribe conveyed the request to Carlos. Before Carlos had the opportunity to respond, appellants got into the cab of his truck and Mora jumped in the truck bed. Mora looked through the window into the cab and saw Mize, Nava, and Medinilla holding switchblade knives.

Carlos drove appellants and Mora to San Pascual Street. As Carlos was driving down San Pascual, he saw Westsiders Lorenzo "Nemo" Carachure, his cousin Noe Carachure, and Rogelio Hernandez walking on the right side of the street. Carlos continued driving and heard someone in the truck say "Westside" or "Westsider."

Mora told Carlos to slow down and stop. When Carlos stopped the truck and turned off the engine and lights, appellants and Mora jumped out and ran toward Lorenzo, Noe, and Hernandez. One of the Eastsiders yelled "Eastside Traviesos."⁷ One of the Westsiders responded by throwing gang signs and yelling, "Westside." Mize asked, "What's up?"

The Westsiders threw bottles at the Eastsiders, hitting Mora. Hernandez, who had been walking with a bicycle, threw the bicycle at the Eastsiders and Mora picked it up. At that point, everyone ran toward the Guadalajara Market. Witnesses saw several men converge on Lorenzo, then heard the sound of glass breaking. Shortly thereafter, Lorenzo could be heard pleading for his life. Diaz hit Lorenzo in the head with a carjack, causing him to fall to the ground. Mize threw Hernandez's bicycle at Lorenzo. As Lorenzo lay pinned on his back under the bicycle, Mize pulled out a knife and stabbed him twice in the neck and once in the abdomen. Witnesses heard two or three of the participants say "fuck him up." Medinilla stabbed Lorenzo in the chest or stomach and Mora said, "[s]tick 'em."

Nava chased Noe and Hernandez as they ran toward the market. Diaz joined Nava after hitting Lorenzo with the carjack. Noe was stabbed and punched in his rib cage and legs. He hit either Nava or Diaz with a stick. Hernandez was hit with a bottle and suffered a stab wound to his right arm.

Carlos saw what was happening and started to drive away. Mize yelled for him to stop. Carlos stopped his truck and Mize, Medinilla, and Mora got in. Carlos drove to Mize's house, where all three passengers got out. Uribe and Neri arrived at Mize's house after Carlos left.

Witnesses to the incident called 911. The police arrived to find Lorenzo was lying on a driveway surrounded by several people. Noe cradled Lorenzo's head and spoke to him in Spanish. Lorenzo had a large stab wound to his neck that was bleeding heavily. One of the responding officers applied a gauze pad with pressure to the wound while waiting for the paramedics to arrive. Lorenzo was transported to the hospital, where he died from his stab wounds.

At 10:30 p.m. that night, Mize knocked on Martinez's bedroom window. Martinez went outside and saw Mize, Medinilla, Uribe, and Neri. Mize and Medinilla were both panicked and nervous and asked Martinez to help them dispose of some knives. Medinilla said, "I stabbed that motherfucker." Mize also admitted stabbing Lorenzo. Martinez drove Mize and Medinilla to Goleta Beach, dropped them off at the entrance, and returned to pick them up a few minutes later. Martinez dropped Medinilla off at a Vons market in Montecito, then drove home with Mize.⁸

Medinilla was interviewed by the police on July 20, 2007. His right eye was bruised and red. He said he had been attacked by three men a couple of days earlier. Medinilla subsequently told Martinez he participated in the attack on Lorenzo in retaliation for the stabbing of Martinez. Medinilla told Uribe he was involved in the fight but was not specific. About a week after the murder, Medinilla confided in his friend Denise Sandoval that he had stabbed a Westsider. Medinilla said he had kicked and stomped on the victim before stabbing him in the neck with a stick.

The day after the murder, Diaz saw Neri and told her not to say anything about what had happened. Within a week of the crime, Mora saw Diaz at the Pennywise store. Diaz was holding a carjack and said, "I hit the guy with this." A couple of weeks later, Diaz saw Uribe at school and told her he had fought one of the Westsiders.

Three days after the murder, Mize told fellow Eastsider Jose Herrera that he had beaten up and stabbed a couple of Westsiders and had disposed of the evidence.⁹ Two months later, Mize told Eastsider Octavio Marin that he "stuck" a Westsider named "Nemo." Mize seemed proud of his actions and said, "Screw that Westsider." Mize went on to state that he and other Eastsiders dressed in black and stabbed a Westsider walking on San Pascual Street. Mize also told Marin who was present during the attack, although the individuals he named did not include appellants. Mize said he had stabbed the victim about 30 times. Around the same time, Mize told his cousin, Eastsider Christopher Diaz,¹⁰ that he had stabbed Lorenzo in the neck. During the same conversation, Medinilla told Christopher he had stabbed Lorenzo in the stomach.

Within a week of his conversation with Mize and Medinilla, Christopher agreed to wear a wire to record any subsequent conversations. On April 1, 2008, Christopher was wearing a wire when he picked Mize up from a juvenile facility in Woodland Hills and drove him back to Santa Barbara. As they were passing the spot where Lorenzo was killed, Mize referred to the crime. Christopher asked Mize where he went for the kill shot, and Mize replied "[i]n the throat." A redacted recording of the conversation was played for the jury and admitted into evidence.

Nava also confessed his role in the crime to several people. The day after the murder, Nava saw Herrera at the Pennywise store and told him he had stabbed a Westsider who hit him with a stick during a fight by the Guadalajara Market. About a week later, Nava told Neri he was responsible for what had happened and had stabbed two Westsiders. About a month after the murder, Nava told Uribe he had been in a fight and was the one who hit or hurt Lorenzo the most. In September 2007, Nava showed Marin a knife and said, "this is the exact knife that I killed Nemo with." On Halloween 2007, Nava bragged to Marin that he had stabbed Lorenzo and said, "I got this Weaksider, Nemo." As a reward for killing Lorenzo, Nava was jumped into the Traviesos clique. Nava fled to Mexico after the murder and got a teardrop tattoo.

Santa Barbara Police Detective Gary Siegel testified as the prosecution's gang expert. When presented with a hypothetical based on the case, Detective Siegel opined that Lorenzo's murder was committed in association with and for the benefit of the Eastside gang. The crime benefitted and promoted Eastside by creating fear within the community, thereby boosting the gang's notoriety and reputation for violence. Based on his training and experience, Detective Siegel also opined a gang member might get a teardrop tattoo to represent he had killed or seriously assaulted someone.

On January 18, 2008, Westsider Prospero Sotelo was walking near the place Lorenzo was killed when Mize and several other Eastsiders attacked Sotelo and repeatedly stabbed him. During the April 2008 recorded conversation between Mize and Christopher, Mize admitted his role in the crime and said, "that fool got stabbed sixteen [16] times[.]" When Mize was arrested on May 6, 2008, he said, "You guys got me on this one" and added, "I'll never see my dad again. He's an ex-con, so he can't visit me."

Appellants did not testify in their defense. Medinilla presented the testimony of a detective who interviewed Mora in connection with Lorenzo's murder. Mora said during the interview that although Medinilla participated in the attack, Medinilla was standing nearby when Lorenzo was stabbed. According to the detective, it was obvious from the outset of the interview that Mora was lying.

DISCUSSION

Appellants contend the court erred in denying their motion to bifurcate the gang allegations in the second trial. They claim the gang evidence was admitted in violation of their due process rights because most of the evidence was not cross-admissible as to the substantive crimes.

We review the trial court's denial of appellants' motion to bifurcate the gang allegations for abuse of discretion. (People v. Hernandez (2004) 33 Cal.4th 1040,

1048 (Hernandez).) The moving party bears the burden of showing a substantial danger of prejudice absent bifurcation. (Id. at p. 1050.) No such showing was made here.

A gang enhancement allegation is attached to the charged offense and usually inextricably intertwined with it. Moreover, evidence of a defendant's gang affiliation is often relevant and admissible to prove identity, motive, modus operandi, specific intent and other issues. (Hernandez, supra, 33 Cal.4th at p. 1049.) Any inference of prejudice is dispelled, and bifurcation is unnecessary, when the gang enhancement evidence is relevant to prove the charged offense. (Id. at pp. 1049–1050; see People v. Lee (2011) 51 Cal.4th 620, 644.) Cross-admissibility is not essential, however. As our Supreme Court has explained: "Even if some of the evidence offered to prove the gang enhancement would be inadmissible at a trial of the substantive crime itself—for example, if some of it might be excluded under Evidence Code section 352 as unduly prejudicial when no gang enhancement is charged—a court may still deny bifurcation. In the context of severing charged offenses, we have explained that 'additional factors favor joinder. Trial of the counts together ordinarily avoids the increased expenditure of funds and judicial resources which may result if the charges were to be tried in two or more separate trials.' [Citation.]" (Hernandez, supra, at p. 1050.) Bifurcation is appropriate, by contrast, when the gang evidence is minimally probative and so inflammatory it threatens to sway the jury to convict without regard to actual guilt. (Id. at p. 1051; People v. Albarran (2007) 149 Cal.App.4th 214, 227–228.)

In denying the bifurcation motion, the court stated: "I think here the gang enhancement allegations and the facts necessary to prove that are interwoven with the underlying charges. And that therefore . . . there's not any substantial prejudice to leaving the matters together. [¶] The evidence is cross-admissible I think with regard to the elements of the gang enhancement. And what I anticipate the evidence is going to show with regard to the defendants' membership in a gang, and that membership, promotion of that gang being a motivator in what happened or what allegedly happened. The group going to the west side, engaging in an altercation with three opposing gang members."

There was no abuse of discretion. "Evidence of the defendant’s gang affiliation—including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.]" (Hernandez, supra, 33 Cal.4th at p. 1049.) Here, the evidence of appellants' gang affiliation and activities was admissible and highly relevant to show that appellants had a motive for attacking Lorenzo, and that they acted with the specific intent necessary to prove murder.

Appellants claim "the jury heard a repetitive cascade of superfluous and prejudicial gang-related testimony about all of the defendants that existed solely in the context of proving the gang enhancement." We disagree. As we have explained, the majority of gang evidence was relevant to prove the primary contested issues relating to whether appellants were guilty of murder, not merely whether they committed the crime for the benefit of their gang. To the extent some of the gang evidence was "repetitive" and/or "superfluous," appellants did not move to limit the amount of gang-related evidence; rather, they sought to exclude all of it. As for the evidence being "prejudicial," it was not rendered inadmissible simply because it "may have led the jury to the ineluctable conclusion" that appellants were guilty of murder. (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551.) The fact that the evidence is highly incriminating simply increases its weight. Moreover, any danger that the gang evidence might unfairly prejudice appellants is dispelled by the overwhelming evidence of their guilt. Because appellants fail to demonstrate that the court misapplied state law in denying their motion to bifurcate the gang allegations, their federal due process claim also fails.

In challenging the court's refusal to bifurcate the gang enhancement allegations, Nava takes particular issue with Detective Siegel's expert gang testimony. Although Nava does not dispute the propriety of the detective's answer to a hypothetical question that closely tracked the evidence (People v. Vang (2011) 52 Cal.4th 1038, 1048), he asserts that "as to [Nava], its prejudicial effect eclipsed its probative value under [Evidence Code] section 352." He claims this is so because "the prosecution failed to marshal sufficient evidence to support a finding that [Nava] aided and abetting [sic] the stabbing of [Lorenzo]." He further complains that "[t]he trial court's decision to deny bifurcation of the gang enhancement also opened the door for the prosecution to pile on evidence about [Nava's] criminal record and other bad acts to support the fact that he was a gang member." Nava did not object to Detective Siegel's testimony on these grounds, so his claim is forfeited. In any event, as we shall later explain, there is no merit in Nava's claim that the evidence is insufficient to support his conviction of second degree murder under an aiding and abetting theory. (See infra, pp. 22-24.) Moreover, any error in admitting the challenged evidence was rendered harmless by other evidence, such as Nava's admissions to four different people that he participated in the killing. In light of these admissions, it is not reasonably probable that Nava would have achieved a more favorable result had the challenged evidence been excluded, be it through bifurcation or an evidentiary ruling. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); People v. Gonzales (2011) 51 Cal.4th 894, 924 [exercise of discretion under Evidence Code section 352 subject to Watson harmless error standard of review].)¹¹

Accomplice Instructions for Witness Uribe

CALCRIM No. 335 instructed the jury that Mora, Martinez, and Carlos were accomplices as a matter of law and that their testimony thus had to be viewed with caution and corroborated by other evidence. The jury was not so instructed as to Uribe, nor was it instructed that her testimony had to be corroborated if she was found to be an accomplice (CALCRIM No. 334). Appellants claim this amounts to reversible error.

Section 1111 states: "A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense . . . ." An accomplice is "one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." (Ibid.) The definition of accomplice "encompasses all principals to the crime [citation], including aiders and abettors and coconspirators. [Citation.]" (People v. Stankewitz (1990) 51 Cal.3d 72, 90 (Stankewitz).)

"It is well settled that the phrase 'liable to prosecution' in section 1111 means, in effect, properly liable. Any issues of fact determinative of the witness's factual guilt of the offense must be submitted to the jury. Only when such facts are clear and undisputed may the court determine that the witness is or is not an accomplice as a matter of law. [Citations.]" (People v. Rodriguez (1986) 42 Cal.3d 730, 759.)

"When a jury receives substantial evidence that a witness who has implicated the defendant was an accomplice, a trial court on its own motion must instruct it on the principles regarding accomplice testimony. [Citation.] This includes instructing the jury that an accomplice's testimony implicating the defendant must be viewed with caution and corroborated by other evidence. [Citations.]" (People v. Houston (2012) 54 Cal.4th 1186, 1223.) The defendant has the burden of proving that a witness is an accomplice by a preponderance of the evidence. (People v. Tewksbury (1976) 15 Cal.3d 953, 968 (Tewksbury).) A person's mere knowledge that a crime might be committed by another in the future or failure to prevent it does not make that person an accomplice. (See People v. Horton (1995) 11 Cal.4th 1068, 1116; Stankewitz, supra, 51 Cal.3d at pp. 90–91.) "Providing assistance without sharing the perpetrator's purpose and intent is insufficient to establish that a person is an accomplice. [Citation.]" (People v. Carrington (2009) 47 Cal.4th 145, 191.)

The court did not err in failing to instruct the jury that Uribe was an accomplice as a matter of law. The answer to the question whether the court should have instructed the jury to determine whether Uribe was an accomplice, however, is less clear. On the one hand, it can be said Uribe merely asked her brother to give her then-boyfriend and his friends a ride to the west side. On the other hand, although Uribe ostensibly asked, she effectively made the decision by falsely telling Mize that Carlos had agreed to the request. The People correctly note that Uribe was not an Eastsider, yet it is reasonable to infer that she knew her boyfriend and his friends were members of the gang. Uribe also knowingly aided Mize and his fellow Eastsiders in obtaining a nighttime ride to the west side of town, which was rival gang territory. Moreover, Uribe was offered immunity for her testimony. While the People correctly note that this fact is insufficient by itself to compel a finding that Uribe was an accomplice (see Tewksbury, supra, 15 Cal.3d at p. 960), it nevertheless lends support for such an inference.

Ultimately, it does not matter whether the court should have given accomplice instructions as to Uribe because her testimony was corroborated by other evidence. (People v. Lewis (2001) 26 Cal.4th 334, 370.) "Corroborating evidence may be slight, entirely circumstantial, and entitled to little consideration when standing alone. [Citations.] It need not be sufficient to establish every element of the charged offense or to establish the precise facts to which the accomplice testified. [Citations.] It is 'sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.' [Citation.]" (People v. Valdez (2012) 55 Cal.4th 82, 147–148.)

Here, there is independent corroborating evidence that tends to connect appellants to the commission of the crimes. All four appellants confessed to their involvement. Moreover, the jury was instructed to assess the credibility of all witnesses by considering their bias and other factors that might lead them to be less than truthful. (CALCRIM No. 105.) Even in the absence of corroboration, we must affirm if it is reasonably probable that the error did not contribute to the verdicts. (Watson, supra, 46 Cal.2d at p. 836; People v. Gonzales (2011) 52 Cal.4th 254, 304.) Any error in failing to instruct on accomplice liability as to Uribe was harmless.

Appellants contend the court violated their Sixth Amendment right to assistance of counsel by limiting counsel's reference to appellants' ages and precluding them from arguing as a matter of common knowledge that people of appellants' ages act rashly and impulsively. We disagree.

The trial court has discretion to control the proceedings during the trial, including the argument to the jury. (§ 1044; People v. Ponce (1996) 44 Cal.App.4th 1380, 1387.) Absent a showing of an abuse of discretion, we must uphold the trial court's actions in this regard. (People v. Cline (1998) 60 Cal.App.4th 1327, 1334.) Even if the court has abused its discretion under section 1044, the defendant is not entitled to reversal unless he can show a reasonable probability he would have obtained a more favorable result had the error not occurred. (People v. Garcia (1986) 183 Cal.App.3d 335, 347 (Garcia); Watson, supra, 46 Cal.2d at p. 836.)

Prior to closing arguments, Mize's attorney asked that he be allowed to argue as "a general principle of human development that teenagers, especially around the age these defendants were, . . . tend to be more impulsive." Over the prosecutor's objection, the court allowed counsel to argue that appellants' ages were relevant to the extent they could be tied to the facts of the case. Counsel was prohibited, however, from arguing as a matter of common knowledge that individuals of a certain age are impulsive or rash. The court reasoned: "The argument of counsel is always restricted ultimately by the facts brought out during trial. . . . [¶]  The age of the defendants may have some relevance as it applies to the facts of the case. . . . [Defense counsel] may not argue or suggest what everyone may know. In fact, we don't know what everyone knows or what their common experiences are . . . . [¶] . . . The best way to avoid crossing the line is not to get too close to it. So by way of example, he is young, therefore he is impulsive, compulsive, or assigning some other trait to one or more of the defendants simply because of age crosses the line. The defendant acted impulsively because, and then referring to the specific facts of the case would seem to me to be appropriate argument."

Mize's counsel responded that he had asked the investigating officer Mize's age and the time of the offenses and offered, "I would be satisfied if the Court took judicial notice of the birth dates of the defendants that are stated in the information filed by the People. That's all I want." Over the prosecutor's objection, the court then indicated it would take judicial notice of appellants' birth dates.

At the beginning of his closing argument, Mize's attorney informed the jury of appellants' ages. Counsel went on to argue that the decision to kill Lorenzo was "momentary" and was made "rashly, impulsively and without careful consideration." Medinilla's attorney argued that his client "was a 15 year old kid who was out there, probably over his head, being led around by 19 year old Emilio Mora and others." In concluding, counsel argued that Medinilla "certainly didn't know . . . what the stabber was going to do, if you find that to be Mr. Mize, he had no idea, and it was not foreseeable in his 15-year-old mind." Nava and Diaz offered no argument on the issue.

Appellants did not object to the ruling they now challenge. Indeed, Mize's attorney made clear that he merely wanted the court to take judicial notice of appellants' birth dates, and the court did so. Appellants' claim that the court improperly restricted their arguments is thus forfeited. In any event, the court's ruling did not preclude counsel from urging jurors to apply their own experiences in deciding whether the evidence—which included appellants' ages—established they had the required mental state to commit murder. Rather, the court merely precluded counsel from arguing it is "common knowledge" that individuals of a certain age generally act rashly and impulsively, such that they are incapable of premeditating. In so ruling, the court correctly found that the proffered proposition is not a matter of common knowledge or experience.

In arguing to the contrary, Medinilla relies on Roper v. Simmons (2005) 543 U.S. 551, in which the Supreme Court held that capital punishment for defendants who were under the age of 18 when they committed their crimes constitutes cruel and unusual punishment. Medinilla quotes the case as follows: "First, as any parent knows and as the scientific and sociological studies respondent and his amici cite tend to confirm, '[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.'" (Id. at p. 569.) This passage, however, demonstrates the wisdom of the court's ruling in this case. As the court noted, "we don't know what everyone knows or what their common experiences are or whether or not they were parents or, if they were, how their children got through adolescence." It is one thing to state that parents might know and studies might tend to indicate that young people are more likely than adults to demonstrate immaturity and lack of responsibility. It is quite another to state as a matter of common knowledge that young people of appellants' ages act rashly and impulsively merely by virtue of their ages. Nothing in the court's ruling precluded appellants from offering evidence—be it in the form of expert testimony, accepted studies, or facts relating to appellants' own life experiences—indicating that appellants' youth interfered with their ability to form the intent to commit murder. Moreover, nothing precluded jurors from relying on their own life experiences in making that determination.

Even if we were to assume the court abused its discretion, the error would be harmless. Medinilla's attorney was able to argue that Medinilla "was a 15 year old kid" who acted under the influence of others who were significantly older. He also offered that the killing "was not foreseeable in his 15-year-old mind." Moreover, the jury did not have to find that Mize and Medinilla acted with mature and meaningful reflection in order to find them guilty of first degree murder. (§ 189; People v. Smithey (1999) 20 Cal.4th 936, 979.) Finally, the evidence of appellants' guilt was overwhelming. Because it is not reasonably probable appellants would have achieved a more favorable result absent the alleged error, their claim fails for lack of prejudice. (Garcia, supra,183 Cal.App.3d at p. 347; Watson, supra, 46 Cal.2d at p. 836.)

Section 654

In sentencing appellants, the court imposed concurrent three-year terms for the substantive gang offense (§ 186.22, subd. (a)). Appellants assert that these sentences must be either stayed under section 654 or vacated as a double jeopardy violation. The People correctly concede that the sentences must be stayed because appellants were separately punished for the crimes upon which the gang offenses were based. (People v. Mesa (2012) 54 Cal.4th 191, 199.) We shall order the judgments modified accordingly.

Nava, Medinilla, and Diaz contend the court abused its discretion in denying their motion to sever Mize's trial.