Not to be published in the official reports california Rules of Court, rule 1115

"Section 1098 expresses a legislative preference for joint trials. The statute provides in pertinent part: 'When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials.' [Citations.] Joint trials are favored because they 'promote economy and efficiency' and '"serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts."' [Citation.] When defendants are charged with having committed 'common crimes involving common events and victims,' as here, the court is presented with a 'classic case' for a joint trial. [Citation.]" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40 (Coffman).)

We review the denial of a severance motion for abuse of discretion, based on the facts as they appeared at the time of the ruling. (Coffman, supra, 34 Cal.4th at p. 41.)¹³ "[S]everance may be appropriate 'in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.'" (Id. at p. 40, fns. omitted.) "[S]everance may [also] be called for when 'there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.' [Citations.]" (Id. at p. 40.) "[L]ess drastic measures than severance, such as limiting instructions, often will suffice to cure any risk of prejudice. [Citation.]" (Id. at p. 40.) Even if the court's ruling amounts to an abuse of discretion, reversal is mandated only if the moving party demonstrates a reasonable probability he would have achieved a more favorable result if he had been tried separately. (Id. at p. 41.)

In denying the severance motion in the second trial, the court reasoned: "[I]t is the Court's impression that, number one, the spillover effect or so-called spillover effect [in the first trial] was minimal and in fact well contained by the limiting instructions given throughout the trial, as well as in the jury instructions themselves. . . . [¶] . . . So again, many of those issues came up the first time around and I think we were able to make things work. . . . [¶] . . . The long and the short of it is that the motion is denied with regard to severing. . . . [T]he California Constitution provides for joint trials. The exception is not having a joint trial. The exception is not that in every gang case there should be joint trials simply because there are interlocking facts, allegations and theories that in fact one assumes is the reason behind the [c]onstitutional preference for joint trials."

The court's ruling was not an abuse of discretion. "Because defendants were charged with having committed 'common crimes involving common events and victims' [citation], this was a 'classic case' for a joint trial." (People v. Hardy (1992) 2 Cal.4th 86, 168; Coffman, supra, 34 Cal.4th at p. 40.) The facts known to the court at the time of its ruling demonstrated that none of the defendants would be unfairly prejudiced by a joint trial. As the court noted, it had successfully dealt with issues regarding evidence that was only admissible against Mize during the first trial. The majority of the evidence offered against Mize was also admissible against Nava, Medinilla, and Diaz. When evidence only admissible against Mize was elicited, the jury was admonished to that effect. Instructions that embodied the prior admonitions were also given at the conclusion of the trial.¹⁴ We presume the jury understood and followed these instructions.¹⁵ (People v. Homick (2012) 55 Cal.4th 816, 879 (Homick).) Moreover, a significant portion of the evidence that was not cross-admissible consisted of Nava, Medinilla, and Diaz's self-incriminating statements. Even if accepted Diaz's assertion that a separate trial of Nava, Medinilla and Diaz would have been "relatively short," a joint trial was undeniably more efficient. There is no indication that appellants presented antagonistic defenses such that they would be prejudiced by a joint trial. (See Hardy, at p. 168.) None of the factors warranting severance is present here.¹⁶

In any event, any error in denying severance was harmless. The evidence against Nava, Medinilla, and Diaz—which included their own admissions—was substantial. Although Nava correctly notes that the jury in the first trial was unable to reach a verdict on the murder count, the record reflects that the jury was merely unable to agree whether appellants acted with premeditation and deliberation, and not whether they were guilty of murder.¹⁷ Because it is not reasonably probable that Nava, Medinilla, and Diaz would have achieved a more favorable result had they been tried separately from Mize, the denial of their severance motion provides no basis for reversal of their convictions. (Coffman, supra, 34 Cal.4th at p. 41.)¹⁸

Motion for Mistrial

Nava and Diaz contend the court committed reversible error in denying their motion for a mistrial after a witness recounted Mize making statements that potentially incriminated them. They claim that this testimony, which the court immediately struck and admonished the jury not to consider, violated their confrontation rights under Bruton v. United States (1968) 391 U.S. 123, and its progeny.

We review the court's denial of a mistrial motion for an abuse of discretion. (People v. Price (1991) 1 Cal.4th 324, 428.) A motion for mistrial is properly denied unless the error precipitating it cannot be cured by limiting instructions or some other method. "'Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.'" (People v. Cooper (1991) 53 Cal.3d 771, 838-839.)

Nava and Diaz moved for a mistrial based on statements that Neri and Christopher attributed to Mize. Neri testified that on the night of the crime, she heard Mize say that "[h]e thought they killed someone." Mize objected, and a bench conference followed. The court then instructed the jury that "[w]ith regard to the last answer, . . . the Court will order that answer be stricken. The jury is admonished not to consider it for any purpose." When the prosecutor rephrased the question that prompted the stricken answer, Neri testified that Mize said "[t]hat he thought he killed . . . that they had killed somebody." The court immediately struck the answer and reiterated its prior admonishment that the jury was not to consider the evidence for any purpose.

Later that same day, the prosecution called Christopher to testify. Shortly before playing Christopher and Mize's recorded conversation, the prosecutor asked, "As you're driving by 700 San Pascual, what, if anything, does Mr. Mize say regarding the facts and circumstances of this case?" Christopher then quoted Mize as stating, "That's where we got that fool Nemo." Christopher proceeded to testify that he asked Mize "where he went for the kill shot," and that Mize replied, "The neck." Shortly thereafter, Diaz asked for a bench conference and moved for a mistrial on the ground that Christopher had referred to "we." Diaz also complained that Christopher had mentioned a carjack even though he had been admonished not to do so. Nava joined in the motion.

After hearing argument, the court ruled as follows: "With regard to the we's and they's, we've had discussions about that. The district attorney, it sounds like, has been making an effort to avoid those problems. He has no better control over his witnesses than any other attorney does. It's problematic. I don't think that this rises to the level of prejudice that would warrant a mistrial. [¶] My inclination is to go along with [Diaz's] suggestion, that is, . . . move to strike it as nonresponsive and hope that the jury doesn't give more credence to the fact that we got up and came into chambers . . . discussing the issue, and trying to decide if that means that this was important or not. And if so, how and why it was important may cause more speculation on their part than the testimony itself. But to say that it was nonresponsive and strike it and tell them not to consider it and move on from there." Following a recess, the court instructed the jury that "the last answer from the witness was really nonresponsive to the question, so we’re going to strike that answer, admonish the jury not to consider it for any reason."

There was no abuse of discretion. Nava's claim that Mize's hearsay statements violated his rights under the confrontation clause fails because the statements were excluded and the jury was admonished not to consider them for any purpose. Any reliance on the statement that Neri attributed to Mize is misplaced because no one moved for a mistrial based on that statement. Appellants have thus forfeited any claim that Neri's remarks warranted a mistrial. (See People v. Lightsey (2012) 54 Cal.4th 668, 719 [defendant who did not object or move for mistrial based on claim of prosecutorial misconduct "forfeited this aspect of his claim"].)

Moreover, appellants fail to establish that the error occasioned by the improper remarks was incurable. In addition to striking the remarks, the court promptly admonished the jury not to consider them for any purpose. Similar admonishments were given in the court's written instructions. Once again, we presume that every juror was capable of understanding and following these clear and straightforward instructions. (Homick, supra, 55 Cal.4th at p. 879.) Appellants offer nothing indicating otherwise. As the People note, appellants were in any event not directly incriminated by the references to "we" and "they." Other evidence demonstrates that Mize subsequently identified his accomplices by name and that appellants were not mentioned. Given the brief and vague references at issue, Mize's exculpation of appellants, the court's curative instructions and admonishments, and overwhelming evidence of guilt that includes their own admissions, the denial of Nava and Diaz's mistrial motion was not an abuse of discretion.

Nava claims the evidence is insufficient to support his second degree murder conviction. He argues there is no evidence from which the jury could have found he acted as a direct perpetrator or an aider and abettor, or that he was guilty under a natural and probable consequences theory.

In reviewing the sufficiency of evidence to support a conviction, we examine the entire record and draw all reasonable inferences therefrom in favor of the judgment to determine whether there is reasonable and credible evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Streeter (2012) 54 Cal.4th 205, 241.) Our review is the same in prosecutions primarily resting upon circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.) "'An appellate court must accept logical inferences that the jury might have drawn from the evidence even if the court would have concluded otherwise.'" (Streeter, at p. 241.) We do not redetermine the weight of the evidence or the credibility of witnesses. (People v. Albillar (2010) 51 Cal.4th 47, 60.)

The evidence is sufficient to support Nava's conviction of second degree murder. In arguing to the contrary, Nava essentially ignores the applicable standard of review, which requires us to view the evidence in the light most favorable to the judgment. As we have noted, the record belies Nava's assertion that the jury "specifically rejected the allegation that [he] used a knife and found it not true." No such allegation was ever made. In any event, such a finding would provide no basis for us to conclude the evidence is insufficient to sustain a finding that he directly perpetrated the crime. (See People v. Miranda (2011) 192 Cal.App.4th 398, 405 ["under the inconsistent verdict doctrine, the 'not true' finding on the personal use enhancements does not inexorably lead to a finding that defendant was not the direct perpetrator of the substantive offenses"].) Nava admitted to several people that he stabbed Lorenzo during the altercation. Moreover, after the murder Nava got an "Eastside" tattoo on his face and a teardrop tattoo below his eye. When asked about the tattoo, Nava said he had gotten it after stabbing Lorenzo. Detective Siegel also offered expert testimony that a teardrop tattoo can represent a murder or serious assault. This evidence is sufficient to support a finding that Nava was guilty as a direct perpetrator.

The evidence is also sufficient to support Nava's conviction of murder as an aider and abettor. Aider and abettor liability is established when a person who does not directly commit a crime assists the direct perpetrators by aid or encouragement, with knowledge of the perpetrators' criminal intent and with the intent to help them carry out the offense. (People v. Beeman (1984) 35 Cal.3d 547, 560-561.) "'[A]mong the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.'" (People v. Campbell (1994) 25 Cal.App.4th 402, 409.) Here, this showing is met by evidence that Nava armed himself with a knife immediately prior to the murder and chased and stabbed Noe and Hernandez, thereby preventing them from helping Lorenzo defend against the attack.

Finally, the evidence is sufficient to support Nava's conviction on the theory that the crime was a natural and probable consequence of an assault in which he directly participated. At the very least, Nava knowingly and deliberately participated in a gang assault. In light of the evidence, the jury could have reasonably found that a person in Nava's position would or should have known that the incident would escalate and ultimately result in a killing. (See People v. Medina (2009) 46 Cal.4th 913, 922-923.)

Medinilla contends the court erred in failing to modify CALCRIM No. 400 by excluding language that an aider and abettor is "equally guilty" of a crime whether he directly perpetrated it or aided and abetted the perpetrator. (Nero, supra, 181 Cal.App.4th at pp. 517-518.) Medinilla did not request modification or clarification of the instruction in the trial court, so his claim is forfeited. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163–1165 (Samaniego).) Medinilla alternatively claims that his trial attorney provided ineffective assistance by failing to request modification. This claim fails because in light of the instructions as a whole and the circumstances of the case, there is no reasonable likelihood that the instruction misled the jury.

In evaluating a claim of instructional error, we examine the instructions to determine "whether there is a 'reasonable likelihood' that the jury understood the charge as the defendant asserts." (People v. Kelly (1992) 1 Cal.4th 495, 525.) In addressing this question, we "consider the specific language under challenge and, if necessary, the charge in its entirety." (Id. at pp. 525-526.) We must "determine whether the instruction, so understood, states the applicable law correctly." (People v. Warren (1988) 45 Cal.3d 471, 487.) An instruction can only be found to be ambiguous or misleading if, in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words. (People v. Harrison (2005) 35 Cal.4th 208, 251–252.)

The jury was instructed pursuant to CALCRIM No. 400 that a person may be guilty of a crime if he directly committed the crime or if he aided and abetted someone else who committed the crime, and that a "person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it." The jury was also instructed pursuant to CALCRIM No. 401 that an individual cannot be guilty of aiding and abetting unless the direct perpetrator committed the crime and the aider and abettor (1) knew of the direct perpetrator's intent; (2) shared the same intent as the direct perpetrator; and (3) did in fact aid and abet the perpetrator's commission of the crime. Other instructions explained the degrees of murder and provided the requirements for first degree murder. (CALCRIM No. 521.) Those instructions made clear that in order to convict any defendant of first degree murder, the jury had to find he specifically intended to commit the crime and did so with premeditation and deliberation.

In Nero, supra, 181 Cal.App.4th at page 507, the court found that the "equally guilty" language misled the jury in that case to believe the defendant could not be found guilty of a lesser offense than the second degree murder she aided and abetted.¹⁹ Here, the jury asked if it could find an aider and abettor guilty of a lesser offense under a natural and probable consequence theory, and the court answered that question in the affirmative. To the extent this exchange did not address the question whether a defendant who specifically intended to aid and abet murder could be found guilty of a lesser offense, the instructions made clear that a first degree murder conviction requires premeditation and deliberation. (See People v. Prettyman (1996) 14 Cal.4th 248, 259 [an aider and abettor of a specific intent crime must share the perpetrator's specific intent].) Based on the instructions as a whole, no reasonable juror would have concluded that a defendant who did not intend to aid and abet a premeditated and deliberate murder was nevertheless guilty of first degree murder. (See People v. Lopez (2011) 198 Cal.App.4th 1106, 1119–1120 [any error in CALCRIM No. 400's "equally guilty" language harmless where jury was also instructed with CALCRIM No. 401]; see also Samaniego, supra, 172 Cal.App.4th at p. 1166 ["It would be virtually impossible for a person to know of another's intent to murder and decide to aid in accomplishing the crime without at least a brief period of deliberation and premeditation, which is all that is required"].) Any error arising from the "equally guilty" language was also harmless in light of the evidence demonstrating that Medinilla was found guilty not merely as an aider and abettor, but also as a direct perpetrator. (See People v. Guiton (1993) 4 Cal.4th 1116, 1129.)

Rap Songs

Mize asserts the court abused its discretion in admitting two of his rap songs at both trials. He characterizes the songs as improper character evidence and claims the evidence was irrelevant to establish his state of mind when he committed the murder of Lorenzo and the attempted murder of Sotelo. He also argues that to the extent the evidence was relevant, it should have been excluded under Evidence Code section 352 as substantially more prejudicial that probative.²⁰

Gang evidence that is logically relevant to some material issue other than character evidence is admissible if it is not cumulative or more prejudicial than probative. (People v. Avitia (2005) 127 Cal.App.4th 185, 192.) The evidence should be excluded if it is only relevant to show a defendant's criminal disposition or bad character. (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449.) Where there is a gang allegation, gang evidence will usually be admissible. (People v. Ferraez (2003) 112 Cal.App.4th 925, 930.) Moreover, gang evidence is admissible when it is relevant to prove motive or intent. (People v. Funes (1994) 23 Cal.App.4th 1506, 1518.) Because motive is usually the incentive for criminal behavior, the probative value of motive evidence generally outweighs its prejudicial effect. Courts are thus granted wide latitude in admitting such evidence. (People v. Gonzalez, supra, 126 Cal.App.4th at p. 1550.)

Rap lyrics containing gang references have been held admissible in cases involving gang allegations. (People v. Olguin (1994) 31 Cal.App.4th 1355 (Olguin); People v. Zepeda (2008) 167 Cal.App.4th 25, 34–35.) In Olguin, the court rejected the appellant's claim that the lyrics were inadmissible character evidence and concluded the songs were relevant and admissible to show "his membership in [the gang], his loyalty to it, his familiarity with gang culture, and, inferentially, his motive and intent on the day of the killing." (At p. 1373.)

In 2007, Mize posted 10 "gangsta rap" songs on Youtube. Prior to the first trial, the prosecutor moved to admit three of the songs and Mize opposed the motion. The court ruled that the prosecution could play two of the songs: "Homicidal Thoughts," which was written and performed by Mize and Martinez, and "Untitled," which was written and performed by Mize. The third song, entitled "This Is Why He's Dead," was excluded because it was about an unrelated crime that occurred subsequent to the crimes with which Mize was charged. The court also indicated it would admonish the jury that it was not to consider the songs as evidence against the other defendants. The court issued an identical ruling, over Mize's objection, prior to the first trial. The jury was once again admonished that the evidence was only admissible against Mize.

In "Homicidal Thoughts," Mize identifies himself as "Chiko" and says, "Still I wanna gang bang till I fuckin drop [¶]  Taking out the streets and get popped by the fucking cops, that's why I chose to rap so I could change my ways. I don't want to be like my brother and get locked away, . . . if he asked me to pull the trigger I would pull it. My enemies are my target, those leva's will catch my bullet. [¶]  . . . Homicidal thoughts running through my fucking head and they won't stop till I reach my fucking death." In the next verse, Martinez, or "Lil Bullet," refers to "putting in work for that Eastside Krazies gang" and adds, "In these streets there is no choice but to gang bang."

In "Untitled," the song begins: "It's Chiko Loko putt[i]ng it down from the TRS [Traviesos] if you have something to say about that go ahead and try to test, I'll put your ass to rest. East Bruta [East Santa Barbara] is the best, fuck with me and your body will be in a blo[o]dy mess. . . . I haven't killed but I have the heart to do a one eighty seven homicide. I can't wait till the day that I take somebody's life. Homie don't get it twisted my trigger finger's not the person that I love, the kick of the Glock, the smell of the barrel burning. . . . [Y]ou know my barrio is considered my family[] so you fuck with one of them you're fucking with me." Mize continues: "Disrespect East Bruta fool and you are bound to get hit. My Cuete [gun] is in my clutch, in my times I never miss . . . . [¶]  . . . I'm just gonna cause some chaos till I'm put in some fuckin cuffs, I'm a go out like a G and feed the cops some snuff. [¶]  Fucking with me barrio please don't make me have to bust, disrespect me bitch I'll make sure your grave is dug. . . . I don't play any games and I bring that pain no matter what happens in my life, I'll still bang for the TRS gang."

These lyrics, in which Mize declares his readiness and willingness to kill anyone who "fucks" with him or his gang, were relevant to show intent and motive for the charged crimes. (See, e.g., People v. Lang (1989) 49 Cal.3d 991, 1013-1016 [defendant's threat to "waste any mother fucker that screws with me" properly admitted to show intent].) As the People note, Mize's intent was a central issue in the case. Moreover, the lyrics are relevant to prove Mize's intent regardless of when he wrote them. (Olguin, supra, 31 Cal.App.4th at p. 1373.) Because the evidence is relevant to prove intent, its admission did not violate the statutory restriction on propensity or character evidence under Evidence Code section 1101, subdivision (a). (People v. Barnett (1998) 17 Cal.4th 1044, 1119.) Mize's attempts to distinguish or discredit the relevant authority are unavailing.