Filed 11/ 7/14 P. v. Amezcua CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 8.1 115(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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE , Plaintiff and Respondent ,

v.
JUAN CARLOS AMEZCUA , Defendant and Appellant

. F064904
(Super. Ct. No. MCR032571A)



### OPINION

APPEAL from a judgment of the Superior Court of Madera County. James E. Oakley, Judge. Kyle Gee , under appo intment by the Court of Appeal, for Defendant and Appellant.
Kamala D . Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and
Carlos A. Martinez , Deputy Attorneys General, for Plaintiff and Respondent.

- ooOoo

-2

.

D efendant Juan Carlos Amezcua and co defendant Eucario Avalos Ruiz 1 were charged with murder (Pen. Code, 2 § 187, subd. (a); count 1) and active participation in a criminal street gang ( § 186.22, subd. (a); count 2). As to count 1, t he information alleged
that Amezcua committed the offense for the benefit of a criminal street gang ( § 186.22,
subd. (b)(1) ) and personally and int entionally discharged a firearm, which proximately
caused the victim’s death ( § 12022.53, subd. (d))

. As to count 2, the information alleged
that Amezcua personally used a firearm ( § 12022.5, subd. (a)). The trial court impaneled dual juries. Amezcua’s jury acquitted him of first degree murder , convicted him of second degree murder and gang participation , and found true each of the above mentioned specia l allegations. Amezcua makes several contentions on appeal. First, the trial court failed to
instruct the jur y on involuntary manslaughter as a lesser included offense of murder

. Next , the c ourt improperly gave CALCRIM No. 250 on the union of act and gene ral
intent for counts 1 and 2 and CALCRIM No. 251 on the union of act and specific intent
and/ or mental state for count 2. Finally , the court improperly allowed the prosecut or to tell jurors i n summation that they may draw a negative inference from a n imm unized
witness ’s refusal to answer her questions

. 3

1 To avoid confusion, we identify individuals who share the same surname by their first
names. 2 Unless otherwise indicated, subsequent statutory citations refer to the Penal Code.
3 Amezcua offers two other contention s. First, he asserts that “should [the Supreme Court] determine[] that [ People v. Garcia (2008) 162 Cal.App.4th 18 ( Garcia )] was correctly decided, the trial court erred in failing to instruct sua sponte that an unintentional killing committed without mal ice during an assaultive felony constitutes voluntary manslaughter. ” (Capitalization omitted, italics added.) In Garcia , Division Seven of the Second Appellate District ruled that “an unlawful killing during the commission of an inherently dangerous felo ny, even if unintentional, is at least voluntary manslaughter.” ( Garcia , supra , at p. 31.) In People v. B ryant (2013) 56 Cal.4th 959, 970 ( Bryant ), which was decided shortly after Amezcua filed his opening brief, the Supreme Court held:3

.

We conclude : (1) the trial court was not obliged to instruct the jury on involuntary manslaughter because there was no substantial evidence that the killing was committed
without malice aforethought ; (2) the court ’s issuance of CALCRIM No. 250 for counts 1
and 2 and CALCRIM No. 251 for count 2 did not prejudice Amezcua since the evidence showed beyond a reasonable doubt that the erroneous instructions made no difference in reaching the verdict obtained; an d (3) the court did not abuse its discretion when it allowed the prosecutor to argue that jurors may draw a negative inference from a n immunized witness’s refusal to provide relevant testimony. Therefore, we affirm the judgment.
STATEMENT OF FACTS
I. The nig ht of the shooting The victim, Victor Raqueno, died of a massive hemorrhage of the left common carotid artery inflicted by a .22

- to .40

- caliber bullet

. Numerous w itnesses offered

ac counts of the events leading to his death.

“A defendant who has killed without malice in the commission of an inherently dangerous assaultive felony must have killed without either an intent to kill or a conscious disregard for life. Such a killing cannot be voluntary manslaughter because voluntary manslaughter r equires either an intent to kill or a conscious disregard for life. To the extent that [ Garcia ] suggested otherwise, it is now disapproved.” In view of Bryant , Amezcua’s alternative argument that the court was obliged under Garcia to instruct the jury on voluntary manslaughter as a lesser included offense of murder has been rendered moot. Second, if our court concludes that the claimed instructional errors

— i.e., the trial court’s failure to instruct on involuntary manslaughter and failure to properly ins truct on speci f ic intent and/or mental state

— were either “invited, waived, or forfeited,” Amezcua asserts that “he received ineffective assistance when counsel failed to ensure proper instructions.” (Capitalization omitted.) Since we do not reach such a conclusion, we need not address this argument.4

.

a. Odelia Garcia On July 1 8 , 2008 , at or around 8:30 p.m., Garcia arrived at the home of Isaac and Roger Marz , located at 1224 Davis Street on the southwest corner of Davis Street and Sherwood Way in Madera, California

. Garcia was c elebrat ing her birthday with approximately 45 of her rel ative s and friends , including Raqueno. Guests were asked to

wear red and black , Garcia’s favorite colors , and prohibited from lingering in the front yard

. Individuals w ho “didn’t know the name ‘Odelia’” were turned away at the door

. At some point, Garci a learned that a male party guest w as talking on a cell phone in the front yard . She went outside and asked the guest to come inside. At that moment , a five

foot

- four

- inch “baby

- faced” “Mexican” ma n sporting a white T

- shirt and a fade haircut 4 approached the m and “started saying stuff” to the guest

. 5 Garcia noticed that the man

was holding a gun and wearing a black glove

. 6 As s he nudged the guest toward the
house , she told the armed man that she “didn’t want any problems” and asked him to “just please l eave” and “not to start anything.” The armed man, who had been standing
on Davis Street , walked around the house and on to Sherwood Way

. Meanwhile , “ a large amount of people rushed outside of the house

. ” Isaac, Roger, and two other male guests jumped ove r the fence parallel to Sherwood Way while Raqueno “came running from Sherwood [Way] up towards where everything was happening.”

4 Garcia described a fade haircut as “where the males ... take their hair really short on the side next to their ears” and “have a little bit more hair on the top of their head than with the rest of it.”
5 In an interview conducted on the night of the shooting, Garcia told Detective Sean Bushey that she saw two unknown men arguing with two party guests and informed the men that “it wasn’t a gang party.”
6 At trial, Garcia acknowledged that she originally repor ted to police that the armed man wore white latex gloves.5

.

Soon after , a car appeared on Sherwood Way

. About five men exited the vehicle and fought unarmed p arty guests

. 7 Two of the me n attacked Raqueno. At one point, Garcia saw the armed man point and wav e his gun at Isaac and Roger

. When Raqueno’s
assailants returned to the car, Raqueno s hoved one of the m into the vehicle , “slammed the door,” and “sw[u]ng[] at the people who were in side ” through an open window. 8 As the

car was leaving , Garcia heard two gunshots

. 9
Garcia was shown a six

- pack photo lineup that did not include a picture of Amezcua. She wrote an “X” and her initials next to the picture of Adam Diaz and
remarked that Ad am’s face “ ‘ looked like [the armed man ’s ] when he saw that I saw the gun, the same dumbfounded look. ’ ” Garcia did not identify Adam as the shooter. When she was later shown a second photo lineup that included a picture of Amezcua, Garcia
was unable to id entify him.
b. Samuel Sheridan
Sheridan attended Garcia’s birthday party with two friends , but did not personally
know Garcia

. At some point, he went to the front yard to make a phone call. A few
minute s later, two Hispanic men wearing white T

- shirts approa ched Sheridan and shouted gang slurs, including “puro sur

. ” The first man had a shaved head and stood between five
feet and five feet six inches tall . The second man was taller than the first man by at least
three inches. The two asked Sheridan, “ [ W ] hat do you claim?” Sheridan responded, “I claim myself.”

7 Garcia testified, “It wasn’t all 45 people fighting on top of five guys, it wasn’t like that. It was a few of the guys from our party were trying to defend us. And, of course, they were fightin g with the guys who were there.”
8 Garcia told Bushey that the armed man was one of Raqueno’s assailants and the person that Raqueno shoved into the car.
9 At trial, Garcia acknowledged that she originally reported to police that she “saw the armed man i n the front passenger seat lean back in his seat, aim the gun at [Raqueno,] and fire a round at him as the vehicle rolled away.”6

.

As Sheridan headed in to the house , the two men walked onto Sherwood Way

. Once inside, he observed a t least five guests go outside

. Approximately 10 to 15 minutes later, Sheridan heard gunfire

. He we nt to the front yard , where “[a] bunch of people [were] y elling that [Raqueno] got shot.”

c. Isaac Marz
Isaac and his brother Roger hosted Garcia’s birthday party at their home on the night of July 18, 2008 , and the early morning of July 19, 2008

. Isaac was in the back yard at or around 12:30 a.m. when Garcia informed him that “there w [ere] people starting
stuff out in the front.” He went to the front yard , where four Hispanic males were standing beyond the fence. At least one of the men asked, “ ‘ Where are you from? ’ ”
When I saac and Roger jumped over the fence , o ne of the strangers drew and waved a black gun. Isaac and Roger backed away and stated, “[W]e don’t want no problems .” Isaac noticed that the armed man was wearing a black glove. Meanwhile, Raque no “ [ came] around the other side of the fence” and fought one of the strangers. During the commotion, Isaac heard someone yell , “ [S] outh side VCG.” At some point, Raqueno push ed one of the strangers into the passenger seat of a white

car . As the car was leaving, Isaac heard a gunshot. Afterward, Raqueno walked toward
Isaac , indicated that he had been shot, and collapsed.
Isaac was shown a photo lineup that included a picture of Amezcua . He identified
Amezcua as the armed man , but “wasn’t 100 percent su re.”
d. Roger Marz At or around midnight, Roger went to the front yard because “there w [ere] some people trying to get in.” He noticed a H ispanic ma n wearing black gloves , told the man to leave, and returned to the house . When 15 to 20 guests subsequently r ushed outside, Roger followed . He jumped over the fence parallel to Sherwood Way when he saw his
brother Isaac on the other side “look [ing] like he was about to square up with another guy.” Raqueno , meanwhile, was fighting someone else. Roger heard crie s of “VCG”7

.

and “Sur.” When the fighting subsided, four Hispanic men , including Raqueno’s opponent , went to a white car parked on Sherwood Way with its doors ajar

. One of th e

men pulled out a gun and “point [ed] it at everybody, waving it back and forth

. ” At some point, Raqueno shoved his opponent into the car and kicked the door. As the car was leaving , Roger heard a gunshot

. 10 He watched Raqueno stumble onto the sidewalk and collapse. Roger spotted a wound on Raqueno’s neck.

e. Amanda Moralez
At or around midnight, Moralez and about six to seven other party guests went to the front yard after her cousin told her that “there [were] guys yelling ‘ [S] outh side

. ’” 11 Outside, s he saw four Hispanic men. One of the men, who was five feet nine inches in height , p ulled out a revolver and pointed it at Isaac and Roger , who had jump ed over the
fence . As Isaac and Roger backed away , the armed man entered the back seat of a white or gray car parked in the middle of Sherwood Way . Moralez observed two other men standin g next to the car. At some point, Raqueno , who was unarmed , “r[a]n out side from
the side of the house” and “ started fighting” a taller, five

- foot

- nine

- inch to five

- foot

- ten

inch man with a fade haircut

. 12 When Raqueno’s opponent headed toward the car, Raq ueno followed him, continued to fight, and slammed and kicked the car door. Soon after, Moralez heard a gunshot. She saw Raqueno stagger toward the house, grab his throat, and acknowledg e that he had been shot.

10 In an interview conducted on the night of the shooting, Roger told Officer Mark Trukki that Raqueno pushed his opponent duri ng their fight and the opponent “pulled out a gun and shot once in [Raqueno’s] direction.”
11 Moralez testified that she herself heard cries of “[S]outh side” and “VCG.”
12 In an interview conducted on the night of the shooting, Moralez told Detective Robe rt Hill that Raqueno fought a bald, five

- foot

- two

- inch Hispanic male. She also mentioned, however, that the man who brandished the gun was the same person who fought and shot Raqueno. Moralez described the shooter as a five

- foot

- seven

- inch male with a mu stache, goatee, and light complexion.8

.

Moralez was shown a six

- pack photo lineup that did not include a picture of
Am ezcua, but included pictures of Adam and Andrew Diaz. She wrote that Adam “looks
like the driver” and Andrew “looks like the shooter.”
f. Lisa Lopez Lopez , a party guest, went to the front yard and saw Raqueno fighting a H ispanic
male who was “not too tall,” of “medium build, ” and wearing a white T

- shirt. Raqueno and the stranger were near the passenger side of a white car idling on the street. 13 At some point, Lopez screamed, “ ‘ Stop, [ s ] top. I’m gonna call the cops

. ’ ” A fter Isaac and Roger pulled Raqueno and the stranger apart, the stranger went to the car, re emerged with
a silver semi automatic handgun, and shot Raqueno from a distance of six to eight feet. Lopez did not hear gunfire, but saw Raqueno “holding his neck a nd struggling to get
around.” Lopez was shown a photo lineup that included a picture of Amezcua. Sh e circled Amezcua’s picture and wrote , “ [S] omething about his face.”

g. Carissa Upshaw At or around midnight, Upshaw, a party guest, went to her truck, which w as parked on Davis Street, to change shoes. When she returned to the house, she noticed
that “everybody was ... standing outside

. ” At that moment, a five

- foot

- four

- inch to five

foot

- six

- inch Hispanic man sporting a white T

- shirt and “very short hair” appro ached the
front of the house and yelled “Sur 13” at least five times. Upshaw informed the man, “[T] here’s nobody here that is gang

- related. I think you have the wrong party.” At least four male guests, including Raqueno, came to the front yard and told the stranger to “take
that somewhere else

. ” When the stranger walked around the house and onto Sherwood

13 In an interview conducted on the night of the shooting, Lopez told Officer Juan Gaona that she heard Raqueno shout, “This is not that kind of a party.” She also heard someone yell, “[S]outh side.”9

.

Way, Raqueno and ano ther guest jumped over the fence and told the stranger to leave

. After either Raqueno or the other guest pushed the stranger, Upsh aw heard two gunshots

. She recalled that the stranger raised his arm “about shou lder height” and made a gesture with his hand “as if [he] w [as] holding something,” but she did not see a gun. A white
four

- door car appeared and t he stranger entered t he bac k seat through the passenger side

. After the car left, guests attended to Raqueno, who was injured. 14
h. Joshua Lucero
Lucero and two friends were in a convertible on Davis Street en route to Garcia’s party. While they were looking for parking a round midnigh t, Lucero saw Eucario and
Amezcua walking in the middle of Davis Street

. He recognized Eucario as a neighbor of his grandmother and a gang member by the moniker “Shy Boy ” and Amezcua , who he

met a few times before hand through Eucario , as a gang member by the moniker
“Menace .” Lucero exited the convertible , walked toward Eucario and Amezcua, and said, “ ‘ What’s up? ’ ” Eucario and Amezcua, who were initially startled, recognized him , told him to “kick back,” and stated, “ ‘ We’re going to go down and handle so me business. ’ ” Amezcua carried a small silver revolver. Both wore rubber gloves.
Lucero returned to the convertible and advised his friends to leave the area.
Because o ne of his friends knew someone who was already at the party , the three drove
back tow ard the corner of Davis Street and Sherwood Way and warn ed that person via

14 In one intervi ew conducted on the night of the shooting, Upshaw told Officer Dan Foss that two Hispanic men approached the house, one of whom confronted Sheridan. One of the strangers, who she identified as “Stutters,” wore latex gloves and fought Raqueno. During the altercation, Stutters drew a small handgun and fired one round. Upshaw indicated that Stutters “knew where she lived [and] where she worked.” In another interview, Upshaw told Bushey that the two men who approached the house were between five feet three inches and five feet five inches in height, were “clean shaven,” had “thin black hair,” and wore white T

- shirts and blue jeans. One of the men fought Raqueno and was pushed into a white four

- door sedan. At that point, the man pulled out a gun and shot Ra queno.10

.

phone call “to get out of there

. ” When they arrived, Lucero saw “a bunch of people outside” fighting . At some point, another car pulled up. As Lucero and his friends were leaving the scene, he saw Amezcua standing on the sidewalk and firing the gun.
i. Joseph Suarez At or around midnight, Suarez was walking west bound on Sherwood Way en route to the home of a friend who lived on Davis Street about “five houses down” from
the Marz resi dence. When Suarez made a left turn onto Davis Street , he saw two “Mexican” men walking in the street. One of the men was “taller,” “skinny,” and “bald” while the other was “shorter,” “more stocky,” and had “kin d of long” hair. At least one
of them wore white gloves. Suarez initially passed the two men , but turned around when
he heard the m yell , “ [S] outh side , ” “ [F] uck you , ” “ [P] ussy,” and other gang slurs and

taunts toward the Marz residence . After the provocateurs turned left onto Sherwood Way, “a fe w guys came out of the house wanting to fight ” them and a “ [c]ouple of guys jumped the fence.” T he taller provocateur fought a “ tall” house guest while the shorter provocateur pointed a small silver gun at other houseguests who jumped over the fence.
Duri ng the fight, a medium “tan brown” car appeared on the corner of Davis Street and Sherwood Way

. The taller provocateur enter e d the back seat while the armed provocateur entered the passenger seat. Afterward , the tall houseguest kicked the front

passenger door

. Suarez then heard a gunshot and saw a “big flash” from the inside of the
vehicle. When the car drove off, the tall houseguest walked back to the house and collapsed next to the front gate. 15
Suarez was shown a six

- pack photo lineup that included a picture of Amezcua. He
identified Amezcua as the shooter.

15 The record indicates that Raqueno stood five feet four and one

- half inches tall.11

.

j. Peter Major
At trial , Major identified Eucario as “Shy Boy” and Amezcua as “Menace.” He

t estified that he was Eucario ’s “ [ g ] ood friend” and met Amezcua for the first time in July
2008. On July 19 , 2008, at or around 1:00 a.m., Major , then 12 years old, was in his apartment , located at 120 West Cleveland Avenue , when he heard gunfire. Through his
sister’s bedroom window , he observed people running down Davis Street and yelling ,

“ [S] omebody got sho t

. ” Major could not recall what he initially reported to police and
denied seeing Amezcua with a gun and hear ing Amezcua comment on the shooting. He acknowledged that “Southerners” loitered near a wall on Cleveland Avenue

. I n previous interviews dated J uly 28, 2008, 16 Major told Detective s Robert Hill and Hector Garibay that he was riding his bicycle outside sometime between midnight
and 1:00 a.m. when he saw a “light medium ” grey car drop off Amezcua and Eucario on Cleveland Avenue between Davis Street a nd Philip Street . T he driver hand ed a silver
revolver to Amezcua , who “ pushed [ it ] into his shorts

. ” Major followed Amezcua and
Eucario on his bicycle as they walked northbound on Davis Street . He saw the m speak to people in a black M ustang convertible

. Afterward , Amezcua and Eucario circled the
block in the grey car twice and went to a house

. 17 At some point , Major heard Amezcua yell, “[S]outh side.” He also saw someone kick Eucario in the head as Eucario was entering the grey car

. Before the car left , Amezcua shot the person who kicked Eucario

. A day later , Amezcua told Major “not to say anything” and admitted, “ I was trying to shoot more peo ple but the gun broke.” In addition, Eucario told Major that he originally intended to “hide [the gun] from t he

16 The jury watched a video recording of these interviews.
17 Major also told detectives that Amezcua “got into a white [Ford] F150” at some point before he and Euca rio went to the house.12

.

police,” but instead discarded the firearm because it was broken. Major noted that Amezcua shaved his head after the shooting.
k. Susella Jaime At trial, Jaime, Major ’s sister, identified Eucario as “Shy Boy.” She testified that
Eucario lived with her an d her family, including Major , in 2008. Jaime could not recall receiving a phone call from Eucario sometime after the shooting. In a previous interview dated July 28, 2008 , 18 she told Hill and Garibay that Eucario called her and asked if he could hide a g un “really good” at the apartment. Jaime refused.
II. Subsequent search es and Amezcua’s arrest On July 22, 2008, police officers conducted a search at 17105 Avon Way,
Amezcua’s home address

. They found a pair of jeans with a folded blue bandana in the back p ocket, a Dallas Cowboys sign, a Los Angeles Dodgers sweatshirt, other blue attire, and a bulletproof vest. On the same day, officers conducted a search at 341 Wilson Avenue, Eucario’s home address. They retrieved two photo albums and a T

- shirt.
While he was in the process of a serving the search warrant at 341 Wilson Avenue, Officer James Ellenberger spotted Amezcua across the street. Amezcua fled and Ellenberger chased him to a residence south of Cleveland Avenue. When Amezcua “took a fighting stance,” Ellenberger forced him to the ground and arrested him

. III. Gang evidence

a. Officer Jason Dilbeck
Dilbeck , a gang expert, testified that 1,700 to 2,000 Sureños reside in Madera

. They wear blue clothes, including Dallas Cowboys and Los Angeles Dodgers apparel ,

a nd identify with the number 13 because the 13 th letter of the alphabet, M, stands for the Mexican Mafia, the prison gang to whom they pledge allegiance. Sureños primarily

engage in shootings, stabbings, assaults with a deadly weapon, robberies, burglaries , and

18 The jury watched a video recording of this interview.13

.

narcotic s sales

. 19 The ir chief rivals are the Norteños , whose members w ear red attire , are loyal to the prison gang Nuestra Familia, and identify with the number 14 because the
14 th letter of the alphabet, N, stands for Nuestra Familia. Dilbeck opine d that Amezcua was a Sureño

. Police reports showed that Amezcua actively associated with known Sureños from different subsets, including Vario Central Gangsters (VCG), Vario Knox Street (VKS), Mi Vida Loca (MVL), Vatos Locos Mexicanos (VLM), Pocos P ara Lo cos (PPL), Vatos Locos Sureños (VLS), and the defunct Playboy Sureños (PBS)

. H e loitered in Sureño territory , uttered gang slogans,

wor e blue clothing , possessed gang paraphernalia , “mad

- dogg[ed]” Norteños , and was
involved in altercations with Norteños o n a number of occasions

. Amezcua admitted to police that he was a Sureño and was i dentified by others as a Sureño

. During a recent search of his home, police found a bulletproof vest, blue clothing , a Los Angeles Dodgers sweatshirt, and a Dallas Cowboys sign bearing his moniker “Menace,” the numbers one and three, and symbols representing the number 13. Amezcua ha d several Sureño

- related

tattoo s, including a Playboy bunny and three dots. Dilbeck opined that Eucario was a VCG Sureño

. Police reports show ed that Eucario actively associated with known members of VCG , MVL, and PBS , engaged in misconduct with such individuals, loitered in Sureño territory, uttered gang slogans, wor e blue clothing, possessed gang paraphernalia, and referred to Norteños as his enemies. He admitted to police that he was a VCG Sureño and was identified by others as a VCG
Sureño

. During a recent search of Eucario’s home, police officers found a blue shirt displaying the words “South Side 13,” “VCG,” and “C Life

. ” They also recov ered photo
album s containing , inter alia, gang terminology and symbols such as the number 13, three

19 Dilbeck confirmed that validated Sureños have been convicted of offenses such as first degree murder, voluntary manslaughter, assault with a deadly weapon, and willful disch arge of a firearm from a motor vehicle.14

.

dots in a triangle, “VCG,” “Central Gangsters,” “SUR,” “V Central G,” “tres,” “Sureño por vida,” and “VCG 187”; “roll

- call” lists “paying respect” to VCG Su reños such as Raul Roja , one of the subset’s founders ; and photo s of Eucario and known VCG Sureños wearing Los Angeles Dodgers and Dallas Cowboys apparel and other blue attire , “throwing up” gang signs, and flaunting their Sureño

- related tattoos

. Eucario ’ s various

tattoos includ e d a bird with the letter “M,” the numbers one and three merged with “VCG,” a Playboy bunny, three dots, and “XIII

. ”
Dilbeck testified that t he area bounded by Sherwood Way and Cleveland Avenue, including 1224 Davis Street, is Norte ño territory. VCG Sureños are found south of this territory in the vicinity of Cleveland Avenue and Wilson Street and regularly frequent a nearby wall. In response to the prosecutor’s hypothetical questions, Dilbeck opined th at two or more Sureños who ar e armed, enter enemy territory , and shout gang slogans
intend to commit a crime . I f one of these Sureño s sho ots an d kill s a rival, the gang reap s the benefit s : “We talked about murder being the pinnacle of gang violence, by shooting a perceived rival.... Think about the reputation of the individual, he’s somebody in the criminal street gang who killed the enemy. It’s going to be that same level of honor, the, [‘H] ey, look at what w e did. [’] That’s something you are going to be highly, highly proud of. Y ou know, it would be like having a Super Bowl ring; that’s something you could wear for the rest of your life. And this is what they chose to do, this is how they succeed, is to do t hese types of activities. [¶] ... [¶] That gives not only the violent rep utation to them, but that’s that violent reputation the criminal street gang are going for, because it helps them in felonious conduct.” Dilbeck added that Sureños may target those who merely appear to be Norteños: “[P]erception is reality in gang culture. And, you know unfortunately, ... that’s been a problem in Madera for quite some time. Sometimes people that aren’t gang members are the victims of gang crimes because they get it wrong. [¶]

... [Y]ou know you could get shot for wearing a Cowboys’ jersey a nd because you’re a Cowboys fan, and that’s unfortunate. In the same way, you c ould get shot for wearing a red ... jersey in the wrong neighborhood. Like I said, perception is reality to them. It doesn’t have to15

.

be true. You don’t have to be a gang membe r to b e the victim of a gang member.”
b. Gerardo Ramirez At trial, Ramirez, Eucario’ s cousin, denied being familiar with VCG and could not recall joining this Sureño subset

. I n a previous interview dated July 21, 2008, Ramirez informed Garibay that he was a VCG Sureño and was “jumped in” the gang by Eucario,
inter alios , in January 2008

.

c. Veronica Marmolejo At trial, Marmolejo, Amezcua’s mother, denied that Amezcua was a gang member. She testified that he r home was vandalized once. Specifically , the perpetra tors wrote the number “14” on the garage door. Marmolejo did not know who was responsible for the damage.
In a previous interview dated July 22, 2008, Marmolejo informed Hill that
Amezcua was “a gang member” and was “hanging out with the wrong people

. ” I n the past, her home had been vandalized and targeted in a drive

- by shooting by “enemies [of]
her son.”
DISCUSSION
I. The trial court was not obliged to instruct the jury on involuntary manslaughter as a lesser included offense of murder because there was no substantial evidence that the killing was committed without malice aforethought

a. Background
On March 5, 2012 , Amezcua ’s attorney requested CALCRIM No. 580 for involuntary manslaughter as a l esser i ncluded o ffense of murder

. The trial court
observed:

“ If w e did give [CALCRIM No. 580] , the c rimes ... would be ... [ section 417 , subdivision (a)(2) ], brandishing a firearm; and [ section 245, subdivision (a)], assault with a deadly weapon. [¶] ... [¶] It would have to be that the jury would find that somehow [Amezcua ] intended to brandish it, but it went off accidentally ... [¶] ... [¶] [o]r ... that he intended to16

.

assault, but not necessarily intended to kill. [¶] ... [¶] I think the issue, though, on [CALCRIM No.] 580, and this is something I want all parties to look at, is whether there is any factual basis for it. There’s speculation. If [Amezcua] testified there might be some basis for it. But absent [Amezcua] testifying, I think anything else will be speculation at this point. I’m not sure you could articulate a r easonable set of facts.” The prosecut or maintained that CALCRIM No. 580 was unwarranted because the
evidence did not sufficiently demonstrate lack of malice. A mezcua’s attorney disagreed.
On March 6, 2012 , the court decided not to give the instruction :

“ [ The Court] would cite [ Garcia , supra , ] 162 Cal. App. 4th ... [at] page 31.... [T] o quote

... , ‘In light of the Supreme Court’s holdings in People vs. Blakeley [ (2000) 23 Cal.4th 82 , and ] People v s . Lasko [ (2000) 23 Cal.4th 101 ] , that a specific intent to kill is not an element of the crime of voluntary manslaughter, and particularly [] [their] express [] disapproval of the statement in [ People v. ] Burroughs [ (1984) 35 Cal.3d 824] , ... that

... proof of such an intent is required , ... we

... conclude an unlawful killing dur ing the commission of an inherently dangerous felony, even if unintentional, is at least voluntary manslaughter.’ [ 20 ]

“ And reading this case and others that it cites, the Court cannot articulate or see how it could be articulated that there is

... a complete defense as self

- defense, or a complete defense as accident,

... or an imperfect [self

- ] defense, as would reduce

... murder to voluntary manslaughter.

“ The Court cannot articulate a crime, a misdemeanor, that was being engaged in that really was not, in this case, an inherently dangerous felony. It seems to me that the evidence is that there was a loaded firea rm; clearly, that is undisputed.... [A] t some point somebody, at the very minimum, brandished a firearm, a loaded firearm, which under [ section ] 417 [ , su bdivision (b) ,] is a felony and certai nly inherently dangerous felony. [ 21 ] (Underlining omitted.)

20 As noted, the Supreme Court rejected this formulation of voluntary manslaughter in Bryant , supra , 56 Cal.4th at page 970. ( A nte , fn. 3.)
21 The trial court mistakenly applied section 417, subdivision (b), which i s limited to cases in which the proscribed conduct is committed on the grounds of a day care center or other youth facility. (See People v. Rivera (2003) 114 Cal.App.4th 872, 876

- 879.)17

. “So it doesn’t seem it to me that involuntary manslaughter would be an appropriate lesser included. [¶] ... [¶] [T]he Court is convinced that under the facts of this case, there isn’t a basis for involuntary manslaughter; and therefore, the Court would simply have the verdicts be as to murder 1, murder 2, and voluntary manslaughter as to Mr. Amezcua. ”
b. Standard of Review
We review de novo a trial court’s refusa l to instruct on a lesser included offense. ( People v. Cook (2006) 39 Cal.4th 566, 596 ( Cook ) ; People v. Cole (2004) 33 Cal.4th 1158, 1215, 1218; People v. Waidla (2000) 22 Cal.4th 690, 733 .)

c. Analysis “A criminal defendant has a constitutional right to ha ve the jury determine every material issue presented by the evidence, and an erroneous failure to instruct on a lesser included offense constitutes a denial of that right. To protect this right and the broader interest of safeguarding the jury’s function of ascertaining the truth, a trial court must instruct on an uncharged offense that is less serious than, and included in, a charged greater offense, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged greater offense are present.” ( People v. Huggins (2006) 38 Cal.4th 175, 215 .) “This venerable instructional rule ensures that the jury may consider all supportable crimes necessarily included within the charge itself, t hus encouraging the most accurate verdict permitted by the pleadings and the evidence.” ( People v. Birks (1998) 19 Cal.4th 108, 112.) Involuntary manslaughter is a lesser included offense of murder. ( People v.
Thomas (2012) 53 Cal.4th 771, 813; People v. Gutierrez (2002) 28 Cal.4th 1083, 1145; People v. Prettyman (1996) 14 Cal.4th 248, 274 .) Whereas murder is “the unlawful killing of a human being ... with malice aforethought” ( § 187, subd. (a)), involuntary manslaughter is the unlawful killing of a human being without malice (1) “ in the
commission of an unlawfu l act, not amounting to felony” ( § 192, subd. (b) ) ; (2) “ in the commission of a lawful act which might produce death, in an unlawful manner, or18

.

without due caution or circumspection” ( ibid. ) ; or (3) “ in the commission of a noninherently dangerous felony ... if ‘committed without due caution and circumspection’” ( Bryant , supra , 56 Cal.4th at p. 966 , quoting People v. Burroughs , supra , 35 Cal.3d at p. 835)

.

“ If the evidence presents a material issue of wh ether a killing was committed without malice, and if there is substantial evidence the defendant committed involuntary manslaughter, failing to instruct on involuntary manslaughter would violate the defendant’s constitutional right to have the jury determi ne every material issue.” ( Cook , supra , 39 Cal.4th at p. 596; see People v. Rogers (2006) 39 Cal.4th 826, 884 [ “An instruction on involuntary manslaughter is required whenever there is substantial evidence indicating the defendant did not actually form th e intent to kill.” ] .) As to what
constitutes “substantial evidence” in this context, t he Supreme Court explained : “[T]he existence of ‘ any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ‘“evidence from which a jury composed of reasonable [per sons] could ... conclude[]”’ that the lesser offense, but not the greater, was committed. [Citations.] [¶] In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury. [Citations.]” ( People v. Breverman (1998) 19 Cal.4th 142, 162; see People v. Wilson (1992) 3 Cal.4th 926, 942 [“Speculation is an insufficient basis upon which to require the trial court to give an instruction on a lesser included offense.”].)
We conclu de that there was no substantial evidence that the killing was committed
without malice aforethought

. “ ‘[ M ] alice aforethought ’ ” is “an essential element of the
crime of murder whether it be of the first degree or of the second degree. ” ( People v.
Bender (1945) 27 Cal.2d 164, 180 , italics omitted

. ) To establish the “mental state of malice aforethought,” the evidence must establish that “the killing resulted from the intentional doing of an act w ith express or implied malice

.... ” ( § 188.) Express malice19

.

i s established “when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.” ( Ibid. ) “Malice is implied ... when a killing results from an intentional act, the natural consequences of which are dangerous to human l ife, and the act is deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.” ( Cook , supra , 39 Cal.4th at p. 596; see People v. Swain (1996) 12 Cal.4th 593, 602

- 603.) Malice may be proven by direct evidence, s uch as a defendant’s declaration of his or her state of mind before, during , or after the killing , or , in the absence of direct evidence, circumstantial evidence derived from, inter alia, a defendant’s words and actions. (See People v. Lashley (1991) 1 Ca l.Ap p.4th 938, 945

- 946 .) Prior to the shooting, Amezcua , who was identified as the g unman by several

w itnesses , procured a loaded firearm and gloves . He and Eucario , deemed by Dilbeck to be a Sureño and VCG Sureño , respectively, expressly warned Lucero to “kick back”
because they were “ ‘ going to go down and handle some business ’ ” at 1224 Davis Street, where people were attending a party in red clothing and appeared to be Norteños. Before
Amezcua and Eucario headed to the house , t he y and their companions c ircled the block
twice in their vehicle

. O utside of the residence , Amezcua and Eucario ’s group yelled
Sureño gang slogans and taunt s and refused to leave when asked to do so by Garcia and several of her guests. Once fighting ensued between Amezcua and Eu cario ’s group and
some of the unarmed guests , Amezcua drew and pointed the firearm at , inter alios, Isaac
and Roger , who backed away

. However, w hen Raqueno resisted , Amezcua shot Raqueno
in the neck before he and Eucario left in their vehicle. Sometime a fter the shooting, Amezcua told Major, “ I was trying to shoot more people but the gun broke.” In view of
this evidence of malice aforethought (see People v. Nieto Benitez (1992) 4 Cal.4th 91, 108 [“ o nly ... unlawful killings committed without malice are de fined as manslaughter ”]), the trial court was not obliged to instruct the jury on any theory of involuntary manslaughter as a lesser included offense of murder ( s ee People v. Holloway20

.

(2004) 33 Cal.4th 96, 141 [“ n o fundamental unfairness or loss of verdict reliability results from the lack of instructions on a lesser included offense that is unsupported by any evidence upon which a reasonable jury could rely” ] )

. 22

II. The trial court ’s issuance of CALCRIM No. 250 for counts 1 and 2 and CALCRIM No. 251 for count 2 did not prejudice Amezcua because the evidence showed beyond a reasonable doubt that the erroneous instructions made no difference in reaching the verdict obtained

a. Background On March 7, 2012, the prosecutor described the mental state of malice
aforethou ght in summation:

“Unlawful homicide is murder

.... Now, murder with malice aforethought: A person is killed by another; the killing is unlawful; there’s no justification .... And it’s done with the state of mind that the law calls ‘malice aforethought’

.... [¶]

... There’s two kinds; it’s either express or it’s implied

.... Express malice basically means an intent to kill. An express m alice means you intend to kill.... [¶] If it’s done knowing that it was dangerous and with conscious disregard for human life, that is implied malice.... [¶] ... [¶] First

- degree m urder requires express malice

.... Second

- degree, express or implied malice .... It’s implied malice when you do an act which shows a conscious disregard for human life, and that’s second

- degree

.... ”
Likewise , Amezcua’s attorney referred to malice aforethought in summation :

“Now, I will move on to first or second

- degree murder

.... [¶] ... [¶] [T]he first [element] would be [Amezcua] committed an act that caused the death of another person.... [¶] The second ele ment is when [Amezcua] acted he had the state of mind called malice aforethought .... Malice aforethought is defined in [CALCRIM No. 520.] There [ a re] two definitions[:] [first,] he intentionally committed an act. [¶] ... [¶] The

22 Since we conclude that there was no substantial evidence that the k illing was committed without malice aforethought, we need not address Amezcua’s assertion that a “‘catch

- all’” instruction on involuntary manslaughter is required where an unlawful killing does not meet the definition of murder or voluntary manslaughter. Furthermore, because we find no error, we need not address Amezcua’s argument concerning prejudicial error.21

.

second definition of malic e aforethought is that it was a natural and probable consequence [] of the act that w [as] dangerous to human life.... ”
After closing arguments, t he trial court provided the jury with the following
instructions:

“ The People must prove not only that [Amezcua] did the acts charged, but also that he acted with a particu lar intent and/or mental state.... [¶] ... [¶]

“ [CALCRIM No. 250 :] The crimes or other allegations charged in this case require proof of union or joint operation of act and wrongful intent. For you to find a person guilty of the crime of murder as charged in Count 1 or the crime of unlawful participation in a criminal street gang as charged in Count 2 or to find the allegation of personally and intentionally discharging a firearm or the allegation o f a principal personally using a firearm , that person must not only commit the prohibited act but must do so with wrongful intent. [¶] A person acts with wrongful intent when he or she intentionally does a prohibited act. However, it is not required tha t he or she intend to break the law. The act required is explained in the instruction for that crime or allegation.

“ [CALCRIM No. 251:] The crime of unlawful and active participation in a criminal street gang as charged in Count 2 in this case requires a proof of the union or joint operation of act and a certain mental state. For you to find a person guilty of the crime of unlawful and active participation in a criminal street gang in Count 2, that person must not only intentionally commit the prohibite d act but must do so with a specific mental state. The act and the specific mental state required are explained in the instruction for that crime. [¶] ... [¶]

“ [CALCRIM No. 520:] [Amezcua] is charged in Count 1 with murder, in violation of Penal Code Sec tion 187. To prove that [Amezcua] is guilty of this crime, the People must prove that, one, [Amezcua] committed an act that caused the death of another person. Two, when [Amezcua] acted he had a state of mind called malice aforethought. And three, he ki lled without lawful justification. There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish a state of mind required for murder. [Amezcua] acted with express malice if he unlawfully intend ed to kill

. [¶] [Amezcua] acted with implied malice if, one, ... he intentionally committed an act. Two, the natural and probable consequences of the act were dangerous to human life. And three, at the time he acted he knew his act was dangerous to human22

.

life. And four, he deliberately acted with conscious disregard for human life. Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does n ot require deliberation or the passage of any particular period of time. [¶] ... [¶]

“ [CALCRIM No. 1400:] [Amezcua] is charged in Count 2 with participating in a criminal street gang in violation of Penal Code Section 186.22, S ub[division] (a). To prove that [Amezcua] is guilty of this crime, the People must prove that, one, [Amezcua] actively participated in a criminal street gang; two, when [Amezcua] participated in a gang, he knew that members of the gang engaged in or had engaged in a pattern of crimi nal street gang activity; and three, [Amezcua] willfully assisted, furthered or promoted felonious criminal conduct by members of the gang, either by A, directly and actively committing a felony offense; or B, aiding and abetting in a felony offense. ”
b. Stan dard of Review
We review de novo a trial court’s i nstruct ion on intent and/ or mental state. ( See People v. Alvarez ( 1996 ) 14 Cal.4th 155, 219

- 220 .)

c. Analysis A trial court has a sua sponte duty to instruct on all of the elements of a charged
offense ( Peopl e v. Cummings (1993) 4 Cal.4th 1233, 1311; People v. Magee ( 2003 ) 107 Cal.App.4th 188, 193 ) , including the intent and/ or mental state required to commit the
offense and the union of that intent and/ or mental state and the defendant’s a ct ( People v.
Alvarad o ( 2005 ) 125 Cal.App.4th 1179, 1185; see People v. Garcia (2001) 25 Cal.4th 744, 754 .) In the instant case, w e find

— and t he Attorney General concedes

— that the trial

court improperly instructed the jury on the intent and/or mental state needed for each
char ged offense

. T he court issued CALCRIM No. 250 on the union of act and general
intent for counts 1 and 2

. “However, this instruction must not be used if the crime requires a specific mental state, such as knowledge or malice

.... In such cases, the court

m ust give CALCRIM No. 251

.... ” (Bench Notes to CALCRIM No. 250 , italics added

. )

“ ‘[ M ] alice aforethought ’ ” is “an essential element of the crime of murder” ( People v.23

.

Bender , supra , 27 Cal.2d at p. 180) while “knowledge that the gang’s members engage in

or have engaged in a pattern of criminal gang activity” is an element of the gang participation offense ( People v. Rodriguez (2012) 55 Cal.4th 1125, 1130 ( Rodriguez ) ; accord, § 186.22, subd. (a))

. Thus , the u se of CALCRIM No. 250 was inappropriate.
T he cour t compounded its mistake by concurrently provid ing CALCRIM No. 251 on the union of act and specific intent and/or mental state for count 2

. As noted, CALCRIM
No. 250 a nd CALCRIM No. 251 are mutually exclusive instructions

. Instead, the court
should have given solely CALCRIM No. 251 for counts 1 and 2. By constitutional mandate, “[n]o judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury , ... unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13 ; see People v. Breverman , supra , 19 Cal.4th at p. 173 [ “The phrase ‘misdirection of the jury , ’

... logically ‘“‘ i ncludes every kind of instructional error. ’”’ ” ].) “An instruction that omits a required definition of or misdescribes an element of an offense is harmless only if ‘it appears “beyond a reasonable doubt that the error complained of did not contribute to
th e verdict obtained.”’ [Citations.]” ( People v. Mayfield (1997) 14 Cal.4th 668, 774 ( Mayfield ) ; see People v. Chavez (2004) 118 Cal.App.4th 379, 387 ( Chavez ) ; People v. Magee , supra , 107 Cal.App.4th at p. 194; see generally Chapman v. California (1967)
38 6 U.S. 18 , 24 .) We explained this standard i n an earlier case :

“In assessing prejudice, we consider whether ‘it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.”’ [Citations.] Further, ‘[t]o sa y that an error did not contribute to the verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.’ [Citations.] The evidence must be ‘“of such compelling force
as to show beyond a reasonable doubt” that the erroneous instruction “must have made no difference in reaching the verdict obtained.”’ [Citation.]” ( Chavez , supra , at p. 387 .)24

.

We find that the trial court’s erroneous issuance of CALCRIM No. 250 for

counts 1 and 2 and CALCRIM No. 251 for count 2 made no difference in reaching the
verdict obtained. As to count 1, the court indicated to the jury at the outset that a particular mental state was needed for each charged offense and subsequently provided
CALCRIM No. 520 , which specifies that malice aforethought is a necessary element of first or second degree murder

. (See People v. Bolin (1998) 18 Cal.4th 297, 328 [“‘“The absence of an essential element in one instruction may be supplied by another or cured in
li ght of the instructions as a whole.”’”]; Mayfield , supra , 14 Cal.4th at p. 777 [“When considering a challenge to a jury instruction, we do not view the instruction in artificial isolation but rather in the context of the overall charge.”] Moreover , the pr osecutor and Amezcua’s attorney apprised the jury of this requirement i n their closing arguments

. (See Chavez , supra , 118 Cal.App.4th at p. 388, citing People v. Lee (1987) 43 Cal 3d 666, 677 [“c losing arguments to the jury are relevant in evaluating prej udice”].)
CALCRIM No. 250 notwithstanding, we conclude beyond a reasonable doubt that the jury believed that proof of malice aforethought was needed to convict Amezcua of second degree murder.
As to count 2, the court advised t he jury that a particular me ntal state was needed
for each charged offense and subsequently provided CALCRIM No. 1400, which specifies that a defendant’s knowledge that members of a criminal street gang engage in or have engaged in a patter n of criminal activity is a necessary elemen t of gang participation. (See People v. Bolin , supra , 18 Cal.4th at p. 328; Mayfield , supra , 14
Cal.4th at p. 777.) W e conclude beyond a reasonable doubt that the jury believed that
such knowledge was needed to convict Amezcua of t his offense

.25

.

III. T he trial court did not abuse its discretion when it allowed the prosecutor to argue that jurors may draw a negative inference from an immunized witness’s refusa l to provide relevant testimony

a. Background On February 21, 2012, the prosecutor informed the trial court that Antonio Ruiz, a prosecution witness and Eucario’s brother , was arrested earlier that morning on unknown charges. On February 22, 2012, in response to Eucario’s attorney’s request for an offer of proof as to Antonio’s testimony, the prosecutor stated that A ntonio spoke with police

at or around the time of Raqueno’s death and provided significant information about Eucario’s gang involvement. O n February 23, 2012, Antonio , through his attorney,
asserted the privilege against self

- incrimination under the Fifth Amendment. T he prosecutor , in turn, offered use immunity

. On February 27, 2012, the court signed an order granting use immunity

. Nonetheless, Antonio refused to answer the prosecutor’s questions during a n Evidence Code section 402 , subdivision (b ), hearing. On February 28 , February 29, and March 1 , 2012, in contravention of the use immunity order, Antonio maintained that he would not answer questions. On February 29, 2012, at trial, Dilbeck opined that gang members “perceive that people who testi fy against them are de fact o snitches.” He detailed:

“Gang members are not supposed to cooperate with law enforcement. If you’re a Sureño and you get shot, and I go contact you, ... you’re either probably not going to give me great information, or you’re going to give me just enough to get me off your back, and you’re going to have a lot of ‘I don’t know,’ stuff like that.... [T]hey’re not supposed to cooperate with us. And you see it from investigation to investigation to investigation .”
Dilbeck also test ified , based on police reports, that Amezcua associated with Antonio , a “well

- known VCG Sureño” known by the moniker “Rascal.” At a n Evidence Code
section 402 , subdivision (b), hearing, Dilbeck asserted that he r e lied on Antonio’s
statements in a July 24, 2008, police interview to form his opinion that Amezcua participated in a criminal street gang

.26

.

On March 1, 2012, at trial, Dilbeck testified that he studied the transcript of Antonio’s police interview. During the interview, Antonio stated that he was “ jumped in” VCG by Raul Roja and Eucario, inter alios. He corroborated that VCG “started on
Central [Avenue] ,” “ had rules,” did not have female members, “victimized rival Norteños,” and “hadn’t done a homicide.” Dilbeck found Antonio’s remarks revealing : “[W]hen VCG first started, they weren’t known as a violent criminal street gang. They did mostly property crimes. It wasn’t until about 2007 where they started taking more of a violent role. And so pretty much when they
were on C entral ... we didn’t pay [ th] em a lot of attention because they weren’t real violent. But when they moved to Cleveland they were right next to Norteño territory, and so all the violence ramped up. So then we started contacting more VCG guys because they were involved in a higher level of violence. [¶] And then when I looked at the photo graphs that were at Eucario[’ s] house[], where it has the pictures with the 187 ..., that’s where this kind of stuff ha [s] significance because now, [in] my opinion, VCG was involved in a homicide n ow. That’s where it corroborated the information I had for my opinion. [¶] ... [¶] “[Eucario ‘jumping in’ Antonio] shows active participation in the gang. And it also shows[,] you know, that [Eucario was] a member in good standing. You wouldn’t jump in somebody if you weren’t a member of that gang, so ... it’s very telling.” On March 1, 2012, the prosecutor asked the court, on the basis of People v. Lopez (1999) 71 Cal.App.4th 1550 ( Lopez ) and People v. Morgain (2009) 177 Cal.App.4th 454 ( Morgain ) to allo w her to question Antonio before the jury so that the jury would become aware of his refusal to testify. Amezcua’s attorney objected on the grounds that Lopez “is wrong” and Morgain “is [not] on point

. ” On March 6, 2012, the court granted the prosecutor’ s request

. On March 6, 2012, Antonio reiterated that he would not answer questions. H e was thereafter called to the stand and refused to answer the prosecutor’s questions about whether he knew Amezcua or Eucario, whether he was familiar with VCG , and whet her
he was known by the g ang moniker “Rascal.” On cross

- examination by Eucario’s attorney , Antonio testified that he did not wish to testify against his brother

. On redirect27

.

examination, h e refused to answer any of the prosecutor’s questions. Subsequent ly, t he court instructed the jury: “Ladies and gentleman, the Court would strike the testimony of this witness. A witness has an obligation to testify and answer questions posed to that witness by all counsel. The witness does not have the right to
answe r questions from one attorney and not answer questions from the other attorney. Therefore, the witness having refused to answer further questions from [the prosecutor] , the Court would strike all testimony of this witness. [¶] Ladies and gentleman, as I ’ve explained before, when the Court strikes testimony, you are to treat [it] as though you have not heard it.” On March 7, 2012, t he prosecutor stated in her summation: “You can make a reasonable inference from facts or testimony. You can make reasonabl e inferences. For example, you can infer from the fact that Antonio Ruiz refused to answer questions that he was

— you [ can ] take a negative inference from the fact he did not want to testify in this case.”
b. Standard of Review
“A trial court’s exercise of di scretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that
resulted in a manifest miscarr iage of justice [citation].” ( People v. Rodriguez ( 1999 ) 20 Cal.4th 1, 9

- 10.)

c. Analysis “No evidence is admissible except relevant evidence.” (Evid. Code, § 350.) “‘Relevant evidence’ means evidence ... having any tendency in reason to prove or disprove an y disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) “The test of relevance is whether the evidence tends ‘“logically, naturally, and by reasonable inference” to establish material facts such as identity, inten t, or motive. [Citations.]’ [Citation.]” ( People v. Carter ( 2005 ) 36 Cal.4th 1114, 1166 .) “The trial court is vested with wide discretion in determining the relevance of evidence”28

.

( People v. Babbitt (1988) 45 Cal.3d 660, 681), but “has no discretion to admit irrelevant evidence” ( ibid. ). Amezcua was charged with active participation in a criminal street gang , the
elements of which are (1) “ active participation in a criminal street gang, in the sense of participation that is more than nominal or passive ” ; (2) “ knowledge that the gang’s members engage in or have engaged in a pattern of criminal gang activity ” ; and (3) “ willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang.” ( Rodriguez , supra , 55 Cal.4th a t p. 1130 ; accord, § 186.22 , subd. (a) ; see Rodriguez , supra , at p. 1132 [ “The plain meaning of section 186.22 [,
subdivision ] (a) requires that felonious criminal conduct be committed by at least two gang members, one of whom can include the defendant if h e is a gang member.” ].) Th e prosecutor intended to call as a witness Antonio , a VCG Sureño whose testimony would
be relevant as to whether Amezcua and Eucario participate d in the gang

. Antonio asserted the privilege against self

- incrimination and the cou rt thereafter signed an order granting him use immunity. “[W]here a witness receives immunity, that witness’s testimony is compelled and the witness no longer has a privilege against self

incrimination.” ( Morgain , supra , 177 Cal.App.4th at p p. 466

- 467, c iting United States v. Washington (1977) 431 U.S. 181, 187 & Kastigar v. United States (1972) 406 U.S. 441,
455

- 458; see § 1324. ) Nonetheless, Antonio repeatedly stated his unwillingness to testify
before he was called to the stand on March 6, 2012. In f ront of the jury, he refused to answer the prosecutor’s questions. “ [W] here a witness has no constitutional or statutory right to refuse to testify, ... [j] urors are entitled to draw a negative inference when such a witness refuses to provide relevant testi mony.” ( Lopez , supra , 71 Cal.App.4th at p. 1554; see Evid. Code, § 911, subds. (a)

- (b) [“Except as otherwise provided by statute: [¶] No person has a privilege to refuse to be a witness ... [¶] [or] to refuse to disclose any matter or to refuse to produce any writing, object, or other thing. ”].) Hence, the court did not exercise its discretion “in an arbitrary, capricious, or patently absurd manner” ( People v.29

.

Rodriguez , supra , 20 Cal.4th at p. 9) when it allowed the prosecutor to tell jurors in
summation that they may draw a negative inference from Antonio’s refusal to answer her questions. “[I]f any error in judgment was committed, it was committed by [Antonio],
not the court.” ( Lopez , supra , at p. 1556.)
Amezcua contends that the court should have adm onished the jury to disregard Antonio’s refusal to answer the prosecutor’s questions because “there was no logical and

non

- speculative inference [ from ] which ... Amezcua’s jury could draw from Antonio[’s] obstina[cy].” We disagree. “An inference is a deduc tion of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in
the action.” (Evid. Code, § 600, subd. (b); accord, People v. Davis ( 2013 ) 57 Cal.4th 353, 360.) Here, Dilbeck testified that Su reños abhor snitches and are generally uncooperative with law enforcement. Antonio’s recalcitrance on the stand validated Dilbeck’s opinion

. The jury could reasonably deduce that A ntonio , by virtue of his silence, acted to protect Amezcua and Eucario , hi s fellow Sureños

. (See Lopez , supra , 71 Cal.App.4th at p p. 1555

- 1556.) Such an inference was relevant to the question of whether Amezcua was guilty of the crime of gang participation

. 23

23 Because we find no error, we need not address Amezcua’s argument concerning prejudicial error.30

. DISPOSITION The judgment is affirmed

.

_____________________ Kane, J. WE CONCUR:

_____________________ Le vy, Acting P.J.

_____________________ Poochigian, J.