Not to be published in the official reports

We reject Lino's contention that the trial court abused its discretion when it denied his motion for a mistrial after a gang expert witness referred to a carjacking and Lino's prison tattoo. We review the denial of a mistrial motion for an abuse of discretion. (People v. Valdez (2004) 32 Cal.4th 73, 128.) The court must grant a mistrial only when a party's chances of receiving a fair trial have been irreparably damaged. "'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.' [Citation.]" (People v. Avila (2006) 38 Cal.4th 491, 573.)

During questioning about Lino's gang membership, Sergeant Williams testified that "[o]n 9/26 of '06 he told Detective Young that he got his star tattoos while he was in prison." The prosecutor immediately asked for a sidebar conference, noted that she and counsel for Lino had specifically directed Williams not to mention Lino's time in prison, and opined that Sergeant Williams had mistakenly read that detail from his written notes. Lino's counsel requested a mistrial. The court indicated it would consider it later. After Williams resumed testifying, he mentioned that Lino and other gang members were stopped in a carjacked car. The court immediately instructed the jury that it could not accept Williams's factual assertions as true because they were not based on personal knowledge. Lino renewed his mistrial motion. The court denied it, and later denied a new trial motion that was in part based on the prison tattoo and carjacking references.

Lino fails to demonstrate that Williams' brief reference to Lino's prison tattoo and his presence in a carjacked car deprived him of a fair trial. (People v. Avila, supra, 38 Cal.4th at p. 573.) There was no suggestion that he was in prison for a violent crime, or convicted of carjacking. The court deferred to counsel's preference against an admonition regarding the prison reference. Lino argues that it was "far less likely that a juror [would] believe a claim of self-defense from somebody who's been in prison and involved in carjacking than they would from somebody with no prior arrest record or prison term." The expert's references were far less prejudicial than other evidence presented at trial, including Lino's repeated denials that he was even at the shooting scene, and statements he made to detectives about his gangbanging.

Appellants argue that the trial court committed reversible error and violated their federal constitutional due process rights by admitting certain evidence. They claim that the court should have excluded such evidence, among other reasons, because it was unduly prejudicial under Evidence Code section 352. We disagree.

The trial court has discretion to exclude such evidence where it is more prejudicial than probative. (Evid. Code, § 352.) Evidence Code section 352 provides that evidence may be excluded "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." "Prejudice" within the meaning of Evidence Code section 352 pertains to evidence tending to evoke an emotional bias against a party, with little relevance to the issues. (People v. Minifie (1996) 13 Cal.4th 1055, 1070-1071.) A court's determination that evidence is not made inadmissible by Evidence Code section 352 will be upheld on appeal unless the trial court "'exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.'" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)

Salas asserts that the trial court committed reversible error and violated his federal constitutional due process rights by admitting irrelevant evidence regarding an affair between his girlfriend, Anna, and DSK member Neil Glass. He claims that the court should have excluded that evidence because it was irrelevant, and unduly prejudicial under Evidence Code section 352. We disagree.

As he did at trial, Salas contends that the Anna-Glass affair evidence was irrelevant because there was no direct evidence, or any evidence that showed he knew of the affair. The trial court did not abuse its discretion in admitting evidence of the affair. Several witnesses testified about the affair, including White, Gonzalez, and Hector. Hector, Glass, Anna and her sister were in a car after midnight on June 4, 2006, when a police officer stopped them and arrested Glass. Anna hugged Glass before he was taken away. Anna spent the night with Glass at the Lopez apartment on one night in August 2006. Gonzales testified that he told Abraham and Moises that the Anna-Glass relationship could cause the Colonia-DSK problems to "escalate." There was ample circumstantial evidence to support the inference that Salas knew of the affair. He lived in a building on the same block as the Lopez building, and spent a lot of time in the vicinity. He congregated with other Colonia members at the Lopez building mailbox area, and was often in the adjacent alley. If the affair evidence had any prejudicial impact, it was minimal, compared with other evidence directly linking Salas to Colonia-DSK conflicts. Salas was present and/or participated when Colonia members yelled outside Rocha's home; when they yelled outside the Lopez apartment; when Ohno fought against and knocked out Panda's tooth; and during the second Ohno-Panda fistfight, when armed Colonia members accompanied Panda. Salas also arranged the fatal Labor Day fight.

Lino argues that the trial court committed reversible error by admitting statements he wrote in a letter to Philip Hernandez, his younger brother. He argues that evidence should have been excluded as inadmissible character evidence (Evid. Code, § 1101) and because its prejudicial impact outweighed its probative value (Evid. Code, § 352). We disagree.

This contention concerns a letter dated March 7, 2004. The prosecution sought to introduce the entire letter which contained Lino’s statements regarding his reputation for violence. The trial court carefully reviewed the letter and considered argument during multiple in limine sessions. The prosecution claimed the letter was relevant to show Lino’s state of mind. Lino’s counsel argued that the letter had minimal probative value because Lino wrote it two and a half years before he shot the victims. The court excluded most of the letter, and admitted only two statements, which follow: “Never back down from a fight no matter who’s around. Take the first punk and don’t stop.” ¹⁰

The challenged statements were admissible to show Lino's state of mind, pursuant to Evidence Code sections 1250, subdivision (a), and 1252. (See People v. Spector (2011) 194 Cal.App.4th 1335, 1393-1395 [threats defendant made more than 10 years before shooting a victim were admissible to show the defendant's state of mind].) The court did not abuse its discretion in admitting the letter. It weighed the prejudicial impact of the letter against its probative value and excluded highly prejudicial statements. (Evid. Code, § 352.) Further, any error associated with the admission of statements from the letter was harmless under either the California reasonable probability test or the federal beyond a reasonable doubt test, in view of the overwhelming evidence against Lino and his accomplices. (People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24.)

We reject Salas's contention that the trial court committed prejudicial error by allowing Williams, the gang expert, to answer hypothetical questions regarding the probable reaction of Colonia members if they learned of the Anna-Glass affair. He argues that the hypothetical questions were not based on facts, and the court improperly permitted Williams to impute knowledge of the affair to Salas. The expert opinion regarding the affair had little, if any, prejudicial impact, particularly if the jury concluded Colonia knew nothing about it. Moreover, as we have explained, the jurors heard far more prejudicial evidence that directly linked Salas to the ongoing Colonia-DSK conflicts. Thus, any error associated with the expert opinion regarding the affair was harmless under any standard of review. (Chapman v. California, supra, 386 U.S. 18, 24; People v. Watson, supra, 46 Cal.23 818, 836.)

In reviewing claims of instructional error or ambiguity, we presume "jurors understand and follow instructions" (People v. Yeoman (2003) 31 Cal.4th 93, 139), and "consider the instructions as a whole to determine whether there is a reasonable likelihood the jury was misled." (People v. Tate (2010) 49 Cal.4th 635, 696.) "'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' [Citation.]" (People v. Martin (2000) 78 Cal.App.4th 1107, 1111-1112.)

Appellants make several related arguments that the trial court erred by instructing the jury with CALCRIM No. 402 that a defendant could be guilty of murder if he aided and abetted a conspiracy to commit battery, in which a natural and probable consequence was murder. The court instructed the jury with the following version of CALCRIM No. 402: "Before you may decide whether a Defendant is guilty of murder or attempted murder using the theory that murder or attempted murder was a natural and probable consequence of conspiracy to commit battery, you must decide whether he is guilty of conspiracy to commit battery. . . . [I]f the Defendant is guilty of murder or attempted murder using the theory that murder or attempted murder was a natural and probable consequence of conspiracy to commit battery, the People must prove that, one, the Defendant is guilty of conspiracy to commit battery; two, during the commission of conspiracy to commit battery a co-participant in that conspiracy to commit battery committed the crime of murder or attempted murder; and, three, under all the circumstances, a reasonable person in the Defendant's position would have known that the commission of the murder or attempted murder was a natural and a probable consequence of the commission of the conspiracy to commit battery."

Joined by Alvino and Lino, Salas claims that there is not sufficient evidence to support the use of CALCRIM No. 402 because they did not conspire to commit a battery. We reject this claim because it rests on the invalid premise that a mutual agreement to engage in a fistfight is not a crime. (People v. Moore (2011) 51 Cal.4th 1104, 1136.) "Voluntary mutual combat outside the rules of sport is a breach of the peace, mutual consent is no justification, and both participants are guilty of criminal assault. [Citation.]" (People v. Lucky (1988) 45 Cal.3d 259, 291.)

Appellants also argue that there was no evidence of any conspiracy to support the use of CALCRIM No. 402 because Octavio, the murder victim, agreed to fight, and he could not conspire "against himself and [the] DSK members." This argument also fails. It is a variation of the invalid claim that a mutual agreement to engage in a fistfight is not a crime. Further, it rests in large part on an inapposite case, People v. Butts (1965) 236 Cal.App.2d 817, which did not involve gang crimes. The Butts court concluded, "Where the defendants do not initiate aggressive action but are themselves challenged to fight, it is not reasonable to infer such an agreement or design from the bare fact of their simultaneous acceptance of the challenge [and that] [p]roof of conspiracy in such case must rest upon some additional evidence of a jointly conceived plan or design to engage in physical violence." (Id. at p. 831.) Unlike Butts, it cannot be said here that the victims initiated the fistfight. Salas did. Substantial evidence supports the conclusion that Salas was the instigator.

The instant case closely parallels People v. Montes (1999) 74 Cal.App.4th 1050, which expressly declined to follow Butts. In Montes, the defendant and his gang confronted a member of a rival gang in a restaurant parking lot. During the confrontation, the defendant's fellow gang member shot and killed the rival gang member. Two months earlier, at the same restaurant, the defendant and the rival/victim had been in an altercation. The Montes court held that attempted murder could be considered a natural and probable consequence of an assault against a rival gang member, whether or not the person who committed the assault knew that his fellow gang member had a weapon. (Id. at p. 1056.) As the Montes court observed: "When rival gangs clash today, verbal taunting can quickly give way to physical violence and gunfire. No one immersed in the gang culture is unaware of these realities, and we see no reason the courts should turn a blind eye to them. . . .  [¶] [T]he circumstances in this case were such that it was reasonably foreseeable the initial confrontation would quickly escalate to gunfire." (Ibid.) As in Montes, there was sufficient evidence from which the jury could infer it was reasonably foreseeable that the fistfight would lead to fatal violence. Salas and Alvino had observed or participated in a recent Colonia-DSK (Panda-Ohno) fistfight in the Lopez alley during which Colonia members produced weapons (aluminum bats and a knife); Alvino then heard Gonzalez or another DSK member yell something like "grab a gun." Alvino testified that he always carried a firearm when leaving his home because he anticipated he could encounter a rival at any time, and such encounters can easily erupt into deadly violence. He also testified that recent DSK-Colonia incidents made him anticipate that DSK members would be armed on Labor Day.

Lino and Alvino also claim that the trial court erred by using an overly broad version of CALCRIM No. 402, to define the natural and probable consequence theory of guilt. They further claim that such error allowed the prosecutor to present the following legally erroneous theory to the jury: The jury could convict all three defendants of murder and attempted murder under the natural and probable consequences theory without making the required finding that at least one defendant perpetrated those crimes under an independent theory of guilt. We disagree.

The court instructed the jury with CALCRIM No. 402, that certain criteria must be met before it could find that any defendant was guilty under the natural and probable consequences theory. Those criteria include whether during the commission of the conspiracy to battery "a co-participant in that conspiracy to commit battery committed the crime of murder or attempted murder . . . ." (Italics added.) During oral argument, Lino cited People v. Morgan (2007) 42 Cal.4th 593, 607-608, in claiming his conviction must be reversed because the prosecutor presented his case to the jury on a legally erroneous theory. Morgan does not help Lino. In Morgan, the jury convicted the defendant of several crimes, including kidnapping. The kidnapping instruction required the jury to find the defendant moved the victim "for a substantial distance, that is, a distance more than slight or trivial." (Id. at p. 605.) In closing argument, the prosecutor argued that if the jury could find that the defendant moved the victim a "substantial distance, that increased her risk of harm," whether that was 37 feet, or longer, it could convict him of kidnapping. (Id. at pp. 608, 609.) However, 37 feet was "insufficient as a matter of law" (id. at p. 610) to establish kidnapping at the time of the crime, and the record suggested the jury could have relied on legally insufficient evidence in convicting the defendant of kidnapping. The court therefore reversed his kidnapping conviction. (Id. at pp. 610-611.)

Lino and Alvino claim that as in Morgan, it is possible that the prosecutor's arguments led the jurors to convict them without making a requisite finding. We disagree. In Morgan, the broad language of the kidnapping instruction allowed the jury to conclude that 37 feet could constitute the requisite distance. Here, the instruction defining the natural and probable consequences theory contained specific language to prevent the jury from convicting appellants under that theory without making the requisite finding that "a co-participant in [the] conspiracy to commit battery committed the crime of murder or attempted murder." (Italics added.) The court also instructed the jury that it "must follow the law as [explained to it by the court and that if it] believe[d] that the attorneys comments on the law conflict with [the court's] instructions, [it] must follow [the court's] instructions." It further instructed the jury to "[p]ay careful attention to all of the instructions and consider them together." (CALCRIM No. 200.) There is no reasonable likelihood that the jury convicted all three appellants of murder or attempted murder under the natural and probable consequences theory without first finding that at least one of them perpetrated the crimes under an independent theory. (See People v. Yeoman, supra, 31 Cal.4th at p. 139; People v. Tate, supra, 49 Cal.4th at p. 696.)

Lino contends that the court committed prejudicial error by failing to instruct the jury with a transferred self-defense instruction. Alvino and Salas join in this contention. More specifically, appellants argue that the court had a sua sponte duty to give the jury a transferred self-defense instruction so it would understand that if Lino "unintentionally" shot Octavio, while intentionally firing at Gonzalez in self defense, the killing was not a crime. We disagree.

A trial court in a criminal case has a duty, even in the absence of a request, to instruct on general principles of law closely and openly connected to the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 149, 154-155.) "The duty to instruct sua sponte is limited to those "'general principles which are necessary for the jury's understanding of the case.'" (People v. Garvin (2003) 110 Cal.App.4th 484, 488-489.) However, in the case of defenses, "'a sua sponte instructional duty arises "only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case."'" (People v. Russell (2006) 144 Cal.App.4th 1415, 1424.) In this context, substantial evidence means "evidence sufficient for a reasonable jury to find in favor of the defendant . . . ." (People v. Salas (2006) 37 Cal.4th 967, 982.)

The court gave the standard jury instructions regarding murder (CALCRIM No. 520), degrees of murder (CALCRIM No. 521); manslaughter (CALCRIM Nos. 570, 571); provocation (CALCRIM Nos. 522, 570) and self-defense and defense of another (CALCRIM Nos. 505, 571). Taken as a whole, the instructions informed the jury that if Lino did shoot Octavio while trying to defend himself from Gonzalez, it would not be a crime. Specifically, the court instructed the jury as follows with CALCRIM No. 571: "If you conclude the defendant acted in complete self-defense or defense of another, his action was lawful, and you must find him not guilty of any crime." The court did not err by failing to instruct the jury, sua sponte, with a separate transferred self-defense instruction. (People v. Matthews (1979) 91 Cal.App.3d 1018, 1025.)

Alvino and Lino contend that the trial court committed reversible error by instructing the jury that his testimony required corroboration in order to prove any fact. They each claim that this instructional error interfered with the defense based on his testimony and violated his constitutional rights.¹¹ We disagree.

"When reviewing ambiguous instructions, we inquire whether the jury was 'reasonably likely' to have construed them in a manner that violated the defendant's rights." (People v. Whisenhunt (2008) 44 Cal.4th 174, 214.)

Alvino and Lino acknowledge that the trial court was required to instruct the jury that a defendant's testimony against an accomplice requires corroboration. They suggest that the court erred by failing to modify the accomplice instruction to clarify that the "jury should not require corroboration or view with caution any portion of Alvino's testimony that was exculpatory." They further argue that the court made a related error when it instructed the jury as follows: "Except for the testimony of Alvino Hernandez, which required supporting evidence, the testimony of only one witness can prove any fact."

When read in isolation, the just-quoted instruction might suggest that the jury could not rely on Alvino’s testimony, whether it was exculpatory or inculpatory. However, another instruction clarified that it was Alvino’s inculpatory testimony which was subject to special scrutiny. Specifically, the primary accomplice testimony instruction, CALCRIM No. 334 repeatedly informed the jury that it must view accomplice testimony with caution when it was inculpatory. The court instructed the jury in relevant part as follows, with CALCRIM No. 334: "Before you may consider the testimony of Alvino . . . as evidence against . . . Lino . . . and . . . Salas, you must decide whether Alvino . . . was an accomplice to the crimes charged against . . . Lino . . . and . . . Salas. [¶] . . . [¶] If you decide that Alvino . . . was not an accomplice, then supporting evidence is not required, and you should evaluate his testimony as you would that of any other witness. If you decide that Alvino . . . was an accomplice, then you may not convict . . . Lino . . . and . . . Salas based on his testimony alone. You may use the testimony of an accomplice to convict . . . Lino. . . and . . . Salas only if, one, the accomplice's testimony is supported by other evidence . . . ; two, that supporting evidence is independent of the accomplice's testimony; and, three, that supporting evidence tends to connect [them] to the commission of the crime. [¶] . . . The supporting evidence must tend to connect . . . Lino . . . and . . . Salas to the commission of the crime. [¶] Any testimony of an accomplice that tends to incriminate . . . Lino . . . and . . . Salas should be viewed with caution." (Italics added.)

We also reject appellant's contention that the accomplice instruction violated his federal constitutional rights. Federal courts have rejected a due process challenge to the giving of accomplice instructions where the accomplice testified as a defense witness. In U.S. v. Tirouda (9th Cir. 2005) 394 F.3d 683, the Ninth Circuit Court of Appeals held that a properly formulated accomplice instruction may be given "whether [an accomplice] testifies for the prosecution or the defense." (Id. at p. 687.) Also, informing the jury that an accomplice's testimony must be viewed with greater caution than other witnesses did not violate the defendant's federal constitutional due process rights. (Id. at pp. 687–688.) "An accomplice's testimony may be suspect, regardless of whether he testifies for the prosecution or the defense." (Id. at p. 687.)

Lino, joined by Salas and Alvino, further argues that the trial court committed prejudicial error and violated their constitutional rights by instructing the jury with CALCRIM No. 3472. More specifically, they claim "that [Lino] was not the person who started the fight and no mutual combat had yet occurred," and there was no evidence that appellants provoked a quarrel as a pretext to use violence, or that they entered "the courtyard intending to use a firearm." Continuing in that vein, they contend that the court's instructions allowed jurors to find appellants entered the courtyard to fistfight the victims, without any right of self defense, because they instigated the fistfight, and that even if Gonzalez first reached for a firearm, Lino and Alvino had no right to defend themselves. We disagree.