Filed 11/18/14 P. v. Grajeda CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

SENON GRANDE GRAJEDA et al.,

Defendants and Appellants.

 B244153

 (Los Angeles County

 Super. Ct. No. NA087587)

APPEALS from judgments of the Superior Court of Los Angeles County, Mark C. 

Kim, Judge. Affirmed in part and reversed in part with directions.

Matthew Alger, under appointment by the Court of Appeal, for Defendant and 

Appellant Senon Grande Grajeda.

Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and 

Appellant Daniel Tomas Grajeda.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez and David 

Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________
2

INTRODUCTION

Defendants Senon Grande Grajeda and Daniel Tomas Grajeda appeal from 

judgments entered after a jury trial. The jury found Senon1 guilty of first degree 

premeditated murder (Pen. Code, § 187, subd. (a)). The jury found true the allegations 

that the crime was committed for the benefit of, at the direction of, or in association with 

a criminal street gang (id., § 186.22, subd. (b)(1)(C)), and that in the commission of the 

crime a principal intentionally discharged a firearm causing great bodily injury and death 

(id., § 12022.53, subds. (d), (e)(1)), personally and intentionally discharged a firearm (id., 

§ 12022.53, subds. (c), (e)(1)), and personally used a firearm (id., § 12022.53, subds. (b), 

(e)). The trial court found true the allegations that Senon had suffered two prior serious 

felony convictions (id., §§ 667, subds. (a)(1), (b)-(i), 1170.12). The court sentenced 

Senon under the three strikes law to 75 years to life for the murder, plus 25 years to life 

for the intentional discharge of a firearm causing death, plus 10 years for the two prior 

serious felony convictions, for a total of 110 years to life in state prison.

The jury similarly found Daniel guilty of first degree premeditated murder and 

found true the gang and firearm allegations. The jury also found Daniel guilty of 

possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) and found true the 

allegation that both crimes were committed for the benefit of, at the direction of, or in 

association with a criminal street gang (id., § 186.22, subd. (b)(1)(C)). The trial court 

also found true the allegations Daniel had served four prior prison terms (id., § 667.5, 

subd. (b)). The trial court sentenced Daniel to 25 years to life for the murder plus an 

additional 25 years to life for the intentional discharge of a firearm causing death. The 

court sentenced Daniel to the upper term of three years for possession of a firearm by a 

 

1 Where two people share the same last name, we refer to them by their first names 

to avoid confusion. (See People v. Boyce (2014) 59 Cal.4th 672, 680, fn. 6; People v. 

Eubanks (2011) 53 Cal.4th 110, 116, fn. 2.)
3

felon, plus five years for the gang enhancement and four years for the prior prison 

sentences. Daniel’s total sentence was 62 years to life in state prison.

FACTUAL BACKGROUND

A. The Defendants

Senon is Daniel’s uncle. Senon is a member of La Rana gang and the Mexican 

Mafia. He has a tattoo of a black hand, signifying his Mexican Mafia membership, and is 

known by the moniker “Cherilo.”

Daniel is a member of the Westside Wilmas gang, whose territory is the west side 

of Wilmington. His gang moniker is “Peanut.”

B. The Residents of the Wilmington Inn Motel

The Wilmington Inn Motel is in territory claimed by the Westside Wilmas gang. 

Michelle Tamble was the manager of the Wilmington Inn.

The victim, Johnny Carbajal, lived at the Wilmington Inn with Melissa Garcia and 

their two children. Johnny was a member of the Westside Wilmas and had “W.S.” 

tattooed on his left arm.

Johnny’s mother, Stella Carbajal, and her husband, John Beck, also lived at the 

Wilmington Inn. Stella was a member of the Westside Wilmas. Beck, who had been 

incarcerated several times, had been a member of the 18th Street gang and was known by 

the moniker “Psycho.” Beck had met Senon years earlier when both were incarcerated. 

He knew Senon by the moniker “Cherilo” and knew that Senon was a senior member of 

the Mexican Mafia.

Enedina Torres and her boyfriend, Raul Benitez, were staying with another tenant 

at the Wilmington Inn. Benitez was a member of the Eastside Wilmas, and Torres was an

associate of the Westside Wilmas. Torres is Daniel’s sister and Senon’s niece. Beck 

learned in November 2010 that Torres was Senon’s niece and called Senon to say hello. 
4

Torres bragged to some of the tenants at the Wilmington Inn that her uncle ranked high in 

the Mexican Mafia.

The Westside Wilmas’ gang color is blue, and the gang considers it a sign of 

disrespect to wear red, the color of its rival gang, the Eastside Wilmas. Benitez had been 

wearing red clothing, and other tenants had asked him to remove it. He did not get upset 

and complied with their requests.

C. The Murder

At 8:00 p.m. on November 29, 2010 Johnny noticed that Benitez was wearing red 

clothing and told him to take it off. Benitez apologized and complied. Torres, who had 

been hit by a car the night before and was waiting for a ride to the hospital, sat nearby in 

Stella’s wheelchair. Torres got angry and told Johnny to leave Benitez alone. Johnny 

told Torres to get out of his mother’s wheelchair. Torres got up and left with Benitez.

A little while later, Senon arrived at the Wilmington Inn to take Torres to the 

hospital. While Senon was taking Torres to his car, Johnny was arguing with Benitez. 

Senon got upset with Johnny and told him that he was Torres’ uncle, and Johnny should 

show him some respect. Senon told Benitez to get in the car. Once Senon, Torres, and 

Benitez were in the car, Senon complained that people did not have respect for their 

elders. Senon drove the car around the corner and parked. Then he and Benitez got out 

and returned to the Wilmington Inn, leaving Torres in the car.

Beck had witnessed the initial confrontation between Johnny and Benitez and then 

returned to his room. Later, Stella’s cousin came to the room and told Beck to come to 

the front of the building, where Johnny was talking to Senon. Beck was concerned 

because Johnny was “special ed, he don’t really understand too much.” Beck went 

quickly toward the front of the building.

Beck heard Senon say, “Yeah, there is a lot of people that are running their mouths 

around there, about shit. I am about something. I will be back.” Johnny came into the 

motel and told Beck that Senon was angry with him. Beck told Johnny to go into 

Tamble’s office. Johnny went to join Tamble, Garcia, and others in the office.
5

Beck went outside to talk to Senon. Senon put his hands up and told Beck to stay 

back. Beck said, “Cherilo, it’s me, Psycho. Psycho from 18th Street.” After the two of 

them had talked for a while, Beck asked if everything was “cool.” Senon said it was; he 

was just there to take his niece to the hospital because she had injured her ankle. Beck 

told him, “Oh yeah, she is sitting in my wife’s wheelchair in there, but my son got mad 

and told her to get out of it, only because she has had three or four wheelchairs stolen 

already.”

Senon made a call on his cell phone. About five minutes later, a black SUV 

arrived in front of the Wilmington Inn. Daniel and another man got out of the SUV and 

walked over to Senon and Beck. Daniel whispered something to Senon and put his hand 

inside his waistband, where he had what appeared to be a gun. Senon told Benitez to 

unlock the door to the motel. Benitez unlocked the door, and Senon, Daniel, and the 

other man went inside. Beck, who remained outside, saw Senon, Daniel, and the other 

man enter Tamble’s office.

Tamble asked the men if she could help them, but they ignored her. Johnny was 

sitting with Garcia and talking on his cell phone. Senon told him to come outside and 

fight. Johnny refused, saying that he did not want to fight. Senon slapped Johnny and 

called him a “bitch.” Johnny and Garcia got up to fight back. Senon knocked Garcia to 

the floor and began to fight with Johnny. When Garcia tried to get up, Daniel grabbed 

her hair with his left hand and held her down. Daniel pulled a gun from his waistband 

with his right hand and shot Johnny twice. Senon, Daniel, and the other man ran outside, 

got into the SUV, and drove away. Tamble called 911.

When Beck heard the gunshots, he ran back inside. Someone told him, “they shot 

your kid. They killed him.” Beck went into Tamble’s office and saw Johnny sprawled 

on a love seat. Johnny was bloody and his eyes were shut. Beck began shaking Johnny, 

but people in the room told him that Johnny was already dead. Johnny opened his eyes 

and told Beck, “It will be alright.” Then he died. An autopsy revealed that one of the 

bullets passed through Johnny’s kidney and spine, and the other passed through his colon, 

small bowel, and liver. Johnny died of massive blood loss.
6

According to Garcia, who testified as a defense witness for Daniel, Johnny was 

not a gang member. He was disabled and stayed at home with their children. On 

November 29 Johnny got into an argument with Torres’ boyfriend Benitez, which made 

Torres angry. Garcia knew that Torres was associated with the Westside Wilmas and La 

Rana gangs, and that Torres had bragged her uncle was a member of the Mexican Mafia. 

Torres said that if anyone messed with her, she would call her uncle.

At 8:00 p.m., when Garcia and Johnny were in Tamble’s office, Johnny got into an 

argument with two men that Garcia had never seen before. When one man slapped 

Johnny and called him a bitch, Garcia tried to intervene. The man punched her in the 

face and knocked her down. Someone pulled her hair back and then she heard gunshots. 

According to Garcia, Johnny never got up to fight anyone because he was not a fighter.

After the shooting, she heard people say that the shooter was “Clever” from the 

Westside Wilmas. Garcia testified that the shooter had green or hazel eyes and a tattoo 

under his right eye based on what other people had told her; she had not been able to see 

the shooter’s face because he was wearing a hood.2 Garcia acknowledged that she was 

afraid of retaliation if she identified anyone and had asked the prosecutor not to call her 

as a witness.

D. The Investigation

Los Angeles Police Department Detectives Isidro Rodriguez and Antonio Batres 

interviewed Tamble after the shooting. They showed her a photographic lineup (a “sixpack”) that included a photograph of Senon’s cousin, Raymundo. Tamble initially 

identified this photograph because Raymundo looked like the man who had slapped 

Johnny, but Tamble was not sure of her identification. Detective Rodriguez showed her a 

second six-pack containing Senon’s photograph, and she identified him as the man who 

had slapped Johnny.

 

2

In a police interview, Garcia first indicated that the shooter’s tattoo was under his 

left eye, the later indicated it was under his right eye. Daniel’s tattoo is under his left eye.
7

Tamble described the shooter as a light-skinned Hispanic man in his mid-20’s, 

five-foot-seven, with a stocky build and round face, and a tattoo under his left eye. The 

police showed her a six-pack that did not have Daniel’s photograph in it. She was unable 

to identify the shooter, because none of the men in the photographs had a tattoo under his 

left eye.

Detective Rodriguez interviewed Beck on December 1. Beck identified Senon 

from a photographic lineup. Because Beck stated that the man with the gun had a tattoo 

under his eye, when preparing the six-pack that included a photograph of Daniel, 

Detective Rodriguez drew tattoos under the eyes of the other men. Beck identified 

Daniel as the man with the gun. Beck acknowledged that he originally identified the man 

with the gun as “Clever,” but he explained that “Clever” and “Peanut” were related and 

he got them confused. “Everybody does. The whole barrio does. All the Westside 

Wilmas does.” Beck identified Senon and Daniel at the preliminary hearing and at trial.3

Detectives Rodriguez and Cortez interviewed Torres on December 15.4 Torres 

acknowledged that if someone disrespected a member of Senon’s family, there would be 

consequences.

On December 16 Tamble saw a photograph of Daniel in a gang injunction letter 

she received as manager of the Wilmington Inn. She recognized him as the shooter and 

subsequently identified him from a photographic lineup. Tamble identified both Senon 

and Daniel at the preliminary hearing and at trial.5

 

3 The police relocated Beck after the shooting.

4 Torres was incarcerated at the time of trial because she had been convicted of 

grand theft and had violated parole.

5 The police also relocated Tamble because she had been threatened after her 

preliminary hearing testimony. She was impeached with four felony convictions between 

1998 and 2004.
8

E. The Cell Phone Records

Cell phone records show the phone numbers involved in a call, the time and 

duration of a call, the cell site where the call originated, and the site where the call 

terminated. On November 29, 2010 at 7:52 p.m., there was a 31-second call from 

Senon’s cell phone to Daniel’s cell phone. The call originated and terminated from a cell 

phone tower located in the general vicinity of the Wilmington Inn.

At 7:54 p.m. there was a second call from Senon’s cell phone that lasted 504 

seconds (just under eight and one-half minutes). This call also originated in the general 

vicinity of the Wilmington Inn. The call terminated at 8:02 p.m. at a cell phone tower 

east of the tower where the call had originated.

Cell phone records for Daniel’s phone showed an incoming call from Senon’s cell 

phone at 7:53 p.m. At 7:56 p.m., there was an outgoing call from Daniel’s cell phone to 

Senon’s cell phone. This call originated at a cell phone tower close to the Wilmington 

Inn but terminated at a tower east of there.

F. The Surveillance and Wiretaps

Torrance Police Officer David Ybarra began wiretapping Senon’s and Daniel’s 

cell phones in December in connection with another investigation. On December 13 a 

woman called Senon saying she had been unable to contact Torres for about a week and a 

half. She explained she was worried, “‘Cause I like I left Wilmington because, dude, like 

I was telling her people were like—like I told her who was trying to point fingers . . . 

because they brought her portfolio, the detectives. And then I bounced.” Senon told her, 

“don’t talk about that.”

On December 15 Senon’s wife called him. She was worried about him and angry 

that she did not know where he was. He told her, “Well, I’m holding the baby right here 

with me because Peanut’s taking care of business and I’m at their home, all right?” His 
9

wife complained, “nothing else matters to you but that Eme shit,”

6 and it “takes 

precedence over everything, nothing else matters to you.”

On December 16 Torres called Senon and told him that Benitez had been arrested 

for murder. Torres told him that “Somebody—somebody told where we were.” Senon 

asked, “Who? It’s got to come out on paperwork.” Torres agreed, but when she started 

to discuss it further, Senon warned her, “don’t say too much on the phone.”

G. The Gang Evidence

1. Rene Enriquez

Rene Enriquez testified at trial as a gang expert for the prosecution. Enriquez 

became a member of the Arta gang when he was 13 years old, and was a member of the 

Mexican Mafia for 17 years. He committed or participated in a number of murders for 

the Mexican Mafia, and he was serving life terms in prison for two of them. Enriquez

left the Mexican Mafia and was now cooperating with law enforcement. He has testified 

in court cases, lectured law enforcement, taught a college course, and collaborated on 

books about his life and the Mexican Mafia.

Enriquez testified that there are 150 to 200 Mexican Mafia members in federal and 

state prisons. In order to become a member of the Mexican Mafia, one must be 

sponsored by a member and voted in by the members. The primary symbol of the 

Mexican Mafia is the black hand of death. Only members can wear a black hand tattoo; a 

nonmember wearing the tattoo would be killed. Both Enriquez and Senon had a black 

hand tattooed on the left side of their chests.

The Mexican Mafia controls other gangs, whose members, Surenos, are the foot 

soldiers of the Mexican Mafia. There are about 50,000 Surenos in California. Surenos 

loyal to the Mexican Mafia use the number 13, which refers to the 13th letter of the 

alphabet, M, pronounced “eme.” By committing crimes on behalf of the Mexican Mafia, 

 

6 As we explain, “Eme” signifies the Mexican Mafia.
10

Surenos elevate their status within the gang culture and the status of their gangs. They 

also become eligible for future membership in the Mexican Mafia. Surenos must be 

willing to kill in order to gain respect from the Mexican Mafia.

Enriquez met Senon in Folsom State Prison, before Enriquez became a member of 

the Mexican Mafia, and they became close friends. Senon gave Enriquez a picture of his 

black hand tattoo. He wrote on the picture: “Para mi homie, René, Arta 13. Con 

respecto, en parte de tu homie, Cherilo, La Rana.” There was a small “M” instead of a 

dot over the “i” in “Cherilo.” Only Mexican Mafia members were allowed to use an “M” 

instead of a dot over the “i.”

According to Enriquez, the Grajeda family was well known in the Mexican Mafia

because Senon’s two brothers were also members. Enriquez did not know Daniel but 

recognized Daniel’s tattoos as referring to the Westside Wilmas. In addition, a “13” 

tattooed on Daniel’s elbow identified him as a soldier for the Mexican Mafia.

In 1985 Senon told Enriquez that he had ordered a stabbing in Folsom State Prison 

of someone who had disrespected a family member. The victim was accidentally killed, 

which Senon subsequently approved. Senon ordered Enriquez to kill a Mexican Mafia 

member who had beaten up his Mexican Mafia cellmate without permission from the 

organization. Before Enriquez could kill the man, the man was removed from the 

Mexican Mafia hit list. A few years later, in Chino State Prison, Senon told Enriquez 

about his unsuccessful attempt to kill a man for dropping out of the Mexican Mafia. 

Later, at Corcoran State Prison, Enriquez told Senon that Senon’s brother had been 

stabbed for violating Mexican Mafia rules. Senon told Enriquez that if Enriquez could 

get him near his brother, he would personally kill his brother.

Enriquez testified that carrying a weapon or committing an act of violence in front 

of a Mexican Mafia member without that member’s permission was a capital offense. 

Relatives of the member are not exempt from the requirement of permission. The 

prosecutor asked Enriquez, “if you had . . . a Sureno who committed a shooting/homicide 

right in front of the Mexican Mafia member, without that Mexican Mafia member’s 

permission, what if that person were a relative of the Mexican Mafia member, would that 
11

absolve them from the death sentence that they would otherwise receive as a result of 

violating the Mexican Mafia rules? Enriquez answered, “No, even relatives are subject to 

the rules of the Mexican Mafia. One rule is that you have to kill your brother, if it is 

called for.” The prosecutor then asked if “a Sureno, who is a relative of the Mexican 

Mafia member, did a homicide, shooting, killing, in front of that Mexican Mafia member, 

and then the Mexican Mafia member came over to their house within the next week or 

two, would that indicate to you that the killing had been ordered by the Mexican Mafia 

member?” Enriquez said it “would indicate to me that there was a prearranged agreement 

between the two individuals to perform the act in question.”7

Based on a hypothetical question mirroring the facts of this case, Enriquez opined 

that there was a prearranged agreement that the Sureno would bring a gun and kill the 

person who had disrespected the Mexican Mafia member and his family member, so that 

the killing was at the direction of, for the benefit of, and in association with the Mexican 

Mafia. The killing “lays the foundation for terror within the Hispanic gang subculture. 

The gang members understand that if they don’t surrender their autonomy, if they don’t 

agree to the Mexican Mafia commands, if they don’t provide the respect that’s demanded 

by the organization, they will be killed. That’s how they benefit.” The killing also sends 

a message to the community at large “that the Mexican Mafia is capable of killing 

individuals who it desires killed.”

2. Law Enforcement Gang Testimony

Several police officers testified about contacts with Daniel and Senon where the 

two of them admitted gang affiliation. Torrance Police Officer Tyrone Gribben testified 

that on December 3, 2009 he conducted a field identification stop of Daniel, who 

admitted that he was a member of the Westside Wilmas and that his gang moniker was 

 

7 The questions were based on evidence of the December 15 telephone call from 

Senon’s wife, in which Senon stated he was at Peanut’s home holding the baby while 

Peanut took care of business.
12

“Peanut.” Torrance Police Officer Sean O’Rourke testified that he conducted field 

identification stops of Senon on August 28, 2010 and November 19, 2010, and Senon 

admitted he had been a member of the La Rana gang and was now a member of the 

Mexican Mafia. Senon said that he was known as “Big Homie” and “Cherilo” among 

Wilmington area gang members. Senon also told Officer O’Rourke that he had 

committed assaults both in prison and on the streets, and his black hand tattoo signified 

that he had committed five murders.

The prosecution also presented expert testimony on gang culture from two 

members of law enforcement. Detective Christopher Brandon of the Los Angeles County 

Sheriff’s Department, major crimes bureau, testified about the Mexican Mafia and 

Sureno gangs. He agreed with Enriquez’s testimony regarding the operation of the 

Mexican Mafia. In Detective Brandon’s opinion, Senon was a member of the Mexican

Mafia on November 29, 2010.

Los Angeles Police Officer Mark Maldonado testified as an expert on the 

Westside Wilmas. In the 1980’s the Wilmas split into two gangs, the Westside Wilmas 

and the Eastside Wilmas. Both are Sureno gangs. The Westside Wilmas have about 550 

members and use “WSW” as their gang symbol.

Officer Maldonado explained that the “W” tattooed on Daniel’s head, the WSW 

tattoo on the back of his neck, the Wilmas tattoo across his chest, and the “13” tattooed 

on his elbow, signified his allegiance to the Mexican Mafia. Based on Daniel’s tattoos, 

the officer’s prior contacts with Daniel, and information from other officers, Officer 

Maldonado believed that Daniel was a Westside Wilmas member. Officer Maldonado 

also testified that Daniel has brown eyes. Officer Maldonado stated he was aware of two 

Westside Wilmas members having the moniker “Clever.” They were brothers and 

cousins of the Grajedas. Neither had a facial tattoo.

Officer Maldonado opined that if a member of the Westside Wilmas shot a second 

member of that gang in the presence of a member of the Mexican Mafia, whom the 

victim had disrespected, the shooting would have been done for the benefit of, at the 

direction of, or in association with, the Westside Wilmas. He explained that the shooting 
13

would raise the gang member’s status and the status of the gang in the eyes of the 

Mexican Mafia. If the disrespectful gang member was not killed, the Mexican Mafia 

could “green light” the gang, meaning that other gangs could attack or kill the gang’s 

members.

3. Defense Expert Gang Testimony

Alex Alonso testified as a gang expert for the defense. Alonso was affiliated with 

the sociology department at the University of Southern California and had been studying 

gangs, including the Mexican Mafia, since 1993. He explained that not all Hispanic 

gangs in southern California were associated with the Mexican Mafia. The Mexican 

Mafia is most interested in gangs whose territory have a high concentration of drugs and 

drug users, where the Mexican Mafia can make money. Hispanic gangs in the Harbor 

Cities area, including the Westside Wilmas, were associated with the Mexican Mafia.

Alonso opined that not all crimes committed by gang members are for the benefit 

of their gang, and that one has to look at the circumstances surrounding a crime to 

determine if it was committed for the benefit of the gang. A member of the Mexican 

Mafia may kill someone over an issue that has nothing to do with the Mexican Mafia. 

The Mexican Mafia would not get involved in a dispute between one of its members and 

a local gang member unless the dispute involved Mexican Mafia business.

In response to a hypothetical question based on the facts of this case, Alonso 

opined that the killing was not necessarily for the benefit of the Mexican Mafia. He 

noted that traditional Mexican Mafia killings are well-planned executions rather than 

spontaneous events, are related to Mexican Mafia business or violations of Mexican 

Mafia rules, and are done in a more secretive manner that will allow the killer to escape. 

The killing in this case could have been based on a personal conflict rather than for the 

benefit of the Mexican Mafia. Alonso acknowledged, however, that disrespecting a 

Mexican Mafia member is a violation of Mexican Mafia rules and that there is a range of 

possible punishments, including death, depending on the severity of the violation.
14

Alonso also acknowledged that a killing by a Sureno gang member with the 

approval of a Mexican Mafia member could increase his status in the gang and benefit 

the gang. He stated, however, that not all Sureno gang members want to be part of the 

Mexican Mafia. Alonso also testified that if a Sureno gang member killed someone in 

the presence of a Mexican Mafia member without permission, the Mexican Mafia 

member would be upset. Alonso explained that if “a family member commits this 

murder without the blessing of the Mexican Mafia member, in the Mexican Mafia 

member’s presence,” one would not expect the Mexican Mafia member “to be just sort of 

hanging out with the person who committed the murder within a couple of weeks at their 

house.”

DISCUSSION

A. Unduly Prejudicial Gang Evidence

Senon contends the trial court abused its discretion in admitting excessive and 

unduly prejudicial gang evidence. In particular, Senon points to the evidence that he had 

been involved in other killings and would kill his brother for the Mexican Mafia if he had 

the opportunity to do so. We conclude the trial court did not abuse its discretion in 

admitting the gang evidence.

1. Proceedings in the trial court

Before trial, counsel for Senon filed a motion in limine to exclude or limit 

Enriquez’s testimony on the grounds that he was not qualified to testify as an expert 

witness, the basis of his opinions was improper, and his testimony was irrelevant, 

misleading, and unduly prejudicial. Counsel also filed a motion in limine to limit the 

number of expert witnesses regarding gangs and the Mexican Mafia. Counsel for Senon 

argued that, because Beck and Detective Brandon had testified at the preliminary hearing 

about the activities and operations of the Mexican Mafia, Enriquez’s testimony was 

cumulative and its prejudice substantially outweighed its probative value. At the hearing 
15

on the motions, counsel for Senon also argued that Detective Brandon could testify about 

the predicate criminal acts necessary to prove the gang allegation, and that Enriquez’s 

testimony was inflammatory and sensational.

The trial court indicated that it had read the preliminary hearing transcript and 

would allow the gang evidence. On the issue of cumulative testimony, the court stated 

that the three witnesses would be testifying about different matters. Enriquez would be 

testifying about his personal knowledge of and communication with Senon and would 

corroborate Detective Brandon’s testimony. Counsel for Senon conceded that this 

testimony was proper, but stated “Enriquez has elaborated on [that], talking about his 

experience with other killings and other murders that occurred . . . that has no . . . 

relevance to this case. To establish that he is a Mexican Mafia and he knows him, I think 

that’s what it should be limited [to]. I don’t have a problem with that.” Counsel argued 

that, with respect the other crimes Enriquez claimed Senon committed, there was no 

evidence to substantiate Enriquez’s claims, and the testimony was unnecessary because

the law enforcement expert witnesses could testify about the predicate crimes for the 

gang enhancement. Counsel for Senon emphasized that Enriquez’s testimony regarding 

other crimes Senon may have committed was “unreliable, based on hearsay statements 

and is speculation.” The trial court stated that counsel could challenge the reliability of 

Enriquez’s testimony on cross-examination, and that counsel’s objections went to the 

weight of the evidence, not its admissibility.

Counsel for Senon subsequently filed another motion to exclude Enriquez’s 

testimony. Counsel argued that certain prior bad acts about which Enriquez would testify 

were not similar enough to the charged crime to be admissible under Evidence Code 

section 1101, subdivision (b), and that the court should exclude the evidence under 

Evidence Code section 352 because its prejudicial impact substantially outweighed its

probative value. The trial court ruled the prosecution could introduce evidence only of

(1) a hit Senon had ordered, (2) Mexican Mafia infighting and stabbing in prison, and 

(3) the stabbing of Senon’s brother. The court found that the probative value of this 
16

evidence with respect to the gang allegations outweighed its prejudicial effect.8 The 

court ruled, however, that the prosecution could not introduce evidence that Senon 

admitted killing someone even though he had been acquitted of that murder.

2. Applicable Law

“Only relevant evidence is admissible at trial. (Evid. Code, § 350.) Under

Evidence Code section 210, relevant evidence is evidence ‘having any tendency in reason 

to prove or disprove any disputed fact that is of consequence to the determination of the 

 

8 The trial court later instructed the jury pursuant to CALJIC Nos. 2.50 and 17.24.3 

regarding the limited purpose for which the other crimes evidence had been admitted. 

CALJIC No. 2.50 provided: “Evidence has been introduced for the purpose of showing 

that the defendant committed crimes other than that for which he is on trial; and in 

addition evidence has been introduced for the purpose of showing criminal street gang 

activities, and of criminal acts by gang members, other than the crimes for which 

defendants are on trial. [¶] This evidence, if believed, may not be considered by you to 

prove that defendant is a person of bad character or that he has a disposition to commit 

crimes. It may be considered by you for the limited purpose of determining if it tends to 

show: [¶] The existence of the intent which is a necessary element of the crime charged; 

[¶] A motive for the commission of the crime charged; [¶] That the crime or crimes 

charged were committed for the benefit of, at the direction of, or in association with a 

criminal street gang, with the specific intent to promote, further, or assist in any criminal 

conduct by gang members. [¶] For the limited purpose for which you may consider such 

evidence, you must weigh it in the same manner as you do all other evidence in the case. 

[¶] You are not permitted to consider such evidence for any other purpose.”

CALJIC No. 17.24.3 provided: “Evidence has been introduced for the purpose of 

showing criminal street gang activities, and of criminal acts by gang members, other than 

the crimes for which defendants are on trial. [¶] This evidence, if believed, may not be 

considered by you to prove that defendant is a person of bad character or that he has a 

disposition to commit crimes. It may be considered by you for the limited purpose of 

determining if it tends to show that the crime or crimes charged were committed for the 

benefit of, at the direction of, or in association with a criminal street gang, with the 

specific intent to promote, further, or assist in any criminal conduct by gang members. It 

may also be used by you to determine if there was a motive to commit a crime, or if a 

crime is a natural and probable consequence of another crime. [¶] For the limited 

purpose for which you may consider this evidence, you must weigh it in the same manner 

as you do all other evidence in the case. [¶] You are not permitted to consider such 

evidence for any other purpose.”
17

action.’ A trial court has ‘considerable discretion’ in determining the relevance of 

evidence. [Citation.] Similarly, the court has broad discretion under Evidence Code 

section 352 to exclude even relevant evidence if it determines the probative value of the 

evidence is substantially outweighed by its possible prejudicial effects. [Citation.] An 

appellate court reviews a court’s rulings regarding relevancy and admissibility under

Evidence Code section 352 for abuse of discretion. [Citation.] We will not reverse a 

court’s ruling on such matters unless it is shown ‘“the trial court exercised its discretion 

in an arbitrary, capricious, or patently absurd manner that resulted in a manifest 

miscarriage of justice.” [Citation.]’ [Citation.]” (People v. Merriman (2014) 60 Cal.4th 

1, 74.)

“Gang evidence, including expert testimony, is relevant and admissible to prove 

the elements of the substantive gang crime and gang enhancements. [Citation.]” (People 

v. Williams (2009) 170 Cal.App.4th 587, 609; see People v. Vang (2011) 52 Cal.4th 

1038, 1048 [“‘[e]xpert opinion that particular criminal conduct benefited a gang’ is not 

only permissible but can be sufficient to support the Penal Code section 186.22, 

subdivision (b)(1), gang enhancement”].) “‘Gang evidence is relevant and admissible 

when the very reason for the underlying crime, that is the motive, is gang related. 

[Citation.]’ [Citation.]” (People v. Memory (2010) 182 Cal.App.4th 835, 858; see 

People v. Ruiz (1998) 62 Cal.App.4th 234, 239 [“gang membership evidence” is 

admissible “when the very reason for the crime is gang related”].) “Consequently, gang 

evidence may be relevant to establish the defendant’s motive, intent or some fact 

concerning the charged offenses other than criminal propensity as long as the probative 

value of the evidence outweighs its prejudicial effect.” (People v. Albarran (2007) 149 

Cal.App.4th 214, 223; see People v. Hernandez (2004) 33 Cal.4th 1040, 1049 

[“[e]vidence of the defendant’s gang affiliation—including evidence of the gang’s 

territory, membership, signs, symbols, beliefs and practices, criminal enterprises, 

rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, 

means of applying force or fear, or other issues pertinent to guilt of the charged crime”].)
18

Because of its potential for prejudice, however, “‘[g]ang evidence should not be 

admitted at trial where its sole relevance is to show a defendant’s criminal disposition or 

bad character as a means of creating an inference the defendant committed the charged 

offense.’ [Citation.]” (People v. Albarran, supra, 149 Cal.App.4th at p. 223; see Evid. 

Code, § 1101, subd. (a).) Thus, “even if the evidence is found to be relevant, the trial 

court must carefully scrutinize gang-related evidence before admitting it because of its 

potentially inflammatory impact on the jury. [Citations.]” (Albarran, supra, at p. 224; 

see People v. Carter (2003) 30 Cal.4th 1166, 1194 [“[a]lthough evidence of a defendant’s 

gang membership creates a risk the jury will improperly infer the defendant has a 

criminal disposition and is therefore guilty of the offense charged—and thus should be 

carefully scrutinized by trial courts—such evidence is admissible when relevant to prove 

identity or motive, if its probative value is not substantially outweighed by its prejudicial 

effect”].) “The trial court must find that the evidence has substantial probative value that 

is not outweighed by its potential for undue prejudice. [Citations.]” (People v. Williams, 

supra, 170 Cal.App.4th at p. 610; see People v. Jones (2013) 57 Cal.4th 899, 930 

[“‘“‘[b]ecause evidence of other crimes may be highly inflammatory, its admissibility 

should be scrutinized with great care’”’”].)

3. Analysis

Senon acknowledges that the trial court properly admitted expert testimony 

regarding the operations of Mexican Mafia and the crimes committed by Mexican Mafia 

members, both to prove the motivation for the murder and to prove the elements of the 

gang allegation. (See People v. Vang, supra, 52 Cal.4th at p. 1050, fn. 5 [“[i]t has long 

been settled that expert testimony regarding whether a crime was gang related is 

admissible” because “[s]uch matters are sufficiently beyond common experience that 

expert testimony would assist the jury”]; People v. Lindberg (2008) 45 Cal.4th 1, 46 

[“‘[t]he subject matter of the culture and habits of criminal street gangs’ satisfies the 

criterion of admissible expert testimony under Evid. Code, § 801”]; People v. Gonzalez

(2005) 126 Cal.App.4th 1539, 1550 [expert testimony on gangs is admissible “to show 
19

the ‘motivation for a particular crime, generally retaliation or intimidation’ and ‘whether 

and how a crime was committed to benefit or promote a gang’”].) Senon does not 

challenge the admissibility of the testimony of Detective Brandon or even of Enriquez 

with respect to the way the Mexican Mafia operates, Senon’s membership in the Mexican 

Mafia, or his motive for having Johnny killed.

Senon argues, however, that Enriquez’s testimony about Senon’s prior uncharged 

criminal activity was inadmissible under Evidence Code section 1101, subdivision (b)

(section 1101(b)), cumulative to Detective Brandon’s testimony concerning predicate acts 

by Mexican Mafia members that the People introduced to prove the gang allegation, and 

inadmissible under Evidence Code section 352 (section 352). Specifically, Senon argues 

that the trial court abused its discretion in admitting Enriquez’s testimony that (1) in 1985 

Senon told Enriquez that he had ordered a stabbing in Folsom State Prison of an inmate 

who had disrespected a family member; (2) Senon ordered Enriquez to kill a Mexican 

Mafia member who had attacked his cellmate without permission from the Mexican 

Mafia; (3) Senon had tried to kill a man for dropping out of the Mexican Mafia; and (4) 

Senon’s statement that he would kill his brother for violating Mexican Mafia rules.

Senon first argues that this evidence was inadmissible under section 1101(b)

because the uncharged and charged crimes do not “‘share common features.’” (People v. 

Walker (2006) 139 Cal.App.4th 782, 804.) However, “[t]he probativeness of othercrimes evidence on the issue of motive does not necessarily depend on similarities 

between the charged and uncharged crimes, so long as the offenses have a direct logical 

nexus. [Citations.]” (People v. Demetrulias (2006) 39 Cal.4th 1, 15; see People v. 

McCurdy (2014) 59 Cal.4th 1063, 1097 [“probative value of uncharged conduct as 

evidence of motive does not necessarily depend on the similarities between the charged 

and uncharged conduct, provided there is a direct logical nexus”].) With respect to 

motive, “charged and uncharged crimes need only be ‘sufficiently similar to support the 

inference that the defendant “‘probably harbor[ed] the same intent in each instance.’ 

[Citations.]”’ [Citation.]” (Demetrulias, supra, at p. 15, citing People v. Ewoldt (1994) 7 

Cal.4th 380, 402.)
20

The charged and uncharged crimes here had a direct logical nexus: all involved a 

motive to punish someone for violating Mexican Mafia rules. The fact that Senon 

ordered the stabbing or killing of individuals who violated the rules, and was even willing 

to kill his brother for such a violation, showed that Senon took such violations seriously. 

The uncharged crimes thus tended to show that Senon’s motive in ordering and 

participating in the murder of someone who had disrespected him and his niece was 

gang-related, rather than a personal vendetta. (See People v. McKinnon (2011) 52 

Cal.4th 610, 655 [“‘[t]he People are entitled to “introduce evidence of gang affiliation 

and activity where such evidence is relevant to an issue of motive or intent”’”]; People v. 

Zepeda (2001) 87 Cal.App.4th 1183, 1212 [evidence that the defendant took part in prior 

gang-related drive-by shooting was relevant to prove defendant’s motive in current driveby shooting was gang-related]; People v. Funes (1994) 23 Cal.App.4th 1506, 1518

[evidence of prior gang activity was relevant to the defendant’s motive for murdering 

victim].)

Senon next argues that, even if the other crimes evidence was admissible under 

section 1101(b), the trial court abused its discretion in refusing to exclude it under section 

352 as unduly prejudicial. “‘Prejudice,’ as used in . . . section 352, is not synonymous 

with damaging. [Citation.]” (People v. McCurdy, supra, 59 Cal.4th at p. 1095.) It “‘is 

not the prejudice or damage to a defense that naturally flows from relevant, highly 

probative evidence.’” (People v. Johnson (2013) 221 Cal.App.4th 623, 636.) Rather, 

“prejudice” as used in section 352 “refers to evidence that uniquely tends to evoke an 

emotional bias against the defendant as an individual, and has little to do with the legal 

issues raised in the trial. [Citation.]” (McCurdy, supra, at p. 1095; accord, Johnson, 

supra, at p. 636.)

Senon argues that the other crimes evidence here was prejudicial under section 

352 because it was “[e]xtremely inflammatory,” “had no connection with the charged 

crime,” and “portrayed [him as] a ruthless killer who has no compunction about taking 

human life so that a parasitic criminal organization can terrorize the prisons and the 

streets.” There is some truth to Senon’s characterization of the other crimes evidence as 
21

inflammatory. Nevertheless, as explained, the evidence had a connection with charged 

crime in the context of the motive for the gang killing and had everything to do with the 

issues raised in the trial. In addition, the evidence regarding the charged crime portrayed 

Senon in exactly the same light as the evidence regarding the uncharged crimes: Senon

orchestrated an attack on a disabled, unarmed gang member who did not even want to 

fight merely because the gang member had disrespected Senon and his niece. Because 

evidence of Senon’s prior crimes was relevant to the motive for the charged crime and 

was not inflammatory or sensational when compared to evidence of the charged crime, 

and because the trial court gave appropriate limiting instructions pursuant to CALJIC 

Nos. 2.50 and 17.24.3, the trial court did not abuse its discretion in admitting the 

evidence under section 352. (See People v. Montes (2014) 58 Cal.4th 809, 860

[“[b]ecause the gang evidence was highly probative in this case, and the trial court gave a 

limiting instruction designed to lessen the risk of undue prejudice, we cannot say the trial 

court’s decision to allow the gang [motive] evidence exceeded the bounds of reason”].)9

 

9 People v. Albarran, supra, 149 Cal.App.4th 214, on which Senon relies, is 

distinguishable. In that case there was “nothing inherent in the facts of the shooting to 

suggest any specific gang motive.” (Id. at p. 227, fn. omitted.) Therefore, the bulk of the 

gang evidence “was irrelevant to the underlying charges and obviously prejudicial. 

Evidence of [the defendant’s] gang involvement, standing alone, was sufficient proof of 

gang motive. Evidence of threats to kill police officers, descriptions of the criminal 

activities of other gang members, and reference to the Mexican Mafia had little or no 

bearing on any other material issue relating to [the defendant’s] guilt on the charged 

crimes and approached being classified as overkill. While the court did admonish the 

jury concerning the proper use of the gang evidence, certain gang evidence admitted was 

so extraordinarily prejudicial and of such little relevance that it raised the distinct 

potential to sway the jury to convict regardless of [the defendant’s] actual guilt.” (Id. at 

p. 228, fn. omitted.) Here, by contrast, “‘the very reason for the underlying crime, that is 

the motive, is gang related’” (People v. Memory, supra, 182 Cal.App.4th at p. 858; see 

People v. Ruiz, supra, 62 Cal.App.4th at pp. 239-240), and specifically Mexican Mafiarelated.
22

B. Refusal To Instruct on Voluntary Manslaughter Based on Imperfect

Self-Defense or Defense of Another

Counsel for Daniel, joined by counsel for Senon, asked the court to instruct the 

jury on the imperfect self-defense theory of voluntary manslaughter, based on an honest 

but unreasonable belief that his life was in imminent danger from the victim. The trial 

court refused to give the instruction, finding “that there is insufficient evidence to support 

[a] voluntary manslaughter instruction based on the theory of imperfect self-defense.”

“A trial court must instruct on all lesser included offenses supported by substantial 

evidence. [Citations.] The duty applies whenever there is evidence in the record from 

which a reasonable jury could conclude the defendant is guilty of the lesser, but not the 

greater, offense. [Citations.] That voluntary manslaughter is a lesser included offense of 

murder is undisputed. [Citations.] [¶] Imperfect self-defense, which reduces murder to 

voluntary manslaughter, arises when a defendant acts in the actual but unreasonable 

belief that he is in imminent danger of death or great bodily injury. [Citations.]” (People 

v. Duff (2014) 58 Cal.4th 527, 561-562.) Substantial evidence requiring instruction on 

the lesser included offense of voluntary manslaughter is “‘“‘evidence from which a jury 

composed of reasonable [persons] could . . . conclude[]’” that the lesser offense, but not 

the greater, was committed. [Citations.]’ [Citation.]” (People v. Moye (2009) 47 Cal.4th 

537, 553.)

Senon and Daniel acknowledge that the imperfect self-defense doctrine “‘may not 

be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of 

a physical assault or the commission of a felony), has created circumstances under which 

his adversary’s attack or pursuit is legally justified.’” (People v. Randle (2005) 35 

Cal.4th 987, 1001, overruled on another ground in People v. Chun (2009) 45 Cal.4th 

1172, 1201; accord, People v. Enraca (2012) 53 Cal.4th 735, 761; People v. Frandsen

(2011) 196 Cal.App.4th 266, 272-273.) This rule applies even where the victim escalates 

matters in response to the initial assault. (Frandsen, supra, at p. 272.) Senon and Daniel, 

however, rely on the principle that, “‘[w]here the original aggressor is not guilty of a 

deadly attack, but of a simple assault or trespass, the victim has no right to use deadly or 
23

other excessive force,’” and that “‘[i]f the victim uses such force, the aggressor’s right of 

self-defense arises. . . .’ [Citation.]” (People v. Quach (2004) 116 Cal.App.4th 294, 301; 

see Frandsen, supra, at p. 273 [“[o]nly when the victim resorts to unlawful force does the 

defendant-aggressor regain the right of self-defense”].)

Senon asserts that “the deputy medical examiner’s testimony established that 

[Johnny] may have been leaning to his right when he was shot, which would have been 

consistent with ‘[g]oing for a gun.’” Johnny was a Westside Wilmas gang member, and 

Alonso “testified that some criminal street gang members keep guns readily available for 

use in the case of an emergency.” Therefore, Senon argues, there was “evidence from 

which reasonable jurors could conclude that Daniel Grajeda may have believed that he 

needed to employ deadly force in order to defend [Senon] because [Johnny] was 

escalating the force used in the altercation and was reaching for a concealed gun to shoot 

[Senon].”

The problem with this theory is that there was no evidence that Johnny was 

reaching for a gun, looked like he was going for a gun, or that Daniel believed Johnny 

was reaching for a gun. Senon refers to the following testimony by the medical examiner 

regarding the angle of Johnny’s gunshot wounds: “Q Now, if I were in a struggle with 

somebody, perhaps, or if I saw the gun and kind of leaned a little bit to my right, either 

because I saw the gun and I was trying to move away or because I was struggling with 

somebody. [¶] A Right. [¶] Q If my upper torso is basically sort of tilted away from 

you, could that explain the 30-degree angle that you are seeing? [¶] A Yes, it could.” 

This testimony is about a bullet angle, not a gang member reaching for a gun.

Thus, Senon and Daniel’s theory of imperfect self-defense was based on

speculation, not substantial evidence. Because, as in People v. Manriquez (2005) 37 

Cal.4th 547, there was no evidence, let alone substantial evidence, that Daniel “‘actually,

but unreasonably, believed he was in imminent danger of death or great bodily injury’

[citation], the evidence clearly was insufficient to require the giving of defendant’s 

requested instruction regarding imperfect self-defense. [Citation.] We therefore 
24

conclude the trial court correctly refused to instruct the jury on imperfect self-defense.” 

(Id. at p. 582.)

C. Instruction on the Natural and Probable Consequences Doctrine

The trial court instructed the jury pursuant to CALJIC No. 3.02: “One who aids 

and abets another in the commission of a crime is not only guilty of that crime, but is also 

guilty of any other crime committed by a principal which is a natural and probable 

consequence of the crime[s] originally aided and abetted. [¶] In order to find the 

defendant guilty of the crime of Murder under this theory, as charged in Count 1, you 

must be satisfied beyond a reasonable doubt that:

“1. The crime of Assault or Assault with Firearm was committed;

“2. That the defendant aided and abetted that crime;

“3. That a co-principal in that crime committed the crime of Assault or Assault 

with Firearm; and

“4. The crime of Murder was a natural and probable consequence of the 

commission of the crime of Assault or Assault with Firearm.

“In determining whether a consequence is ‘natural and probable,’ you must apply 

an objective test, based not on what the defendant actually intended, but on what a person 

of reasonable and ordinary prudence would have expected likely to occur. The issue is to 

be decided in light of all of the circumstances surrounding the incident. A ‘natural’

consequence is one which is within the normal range of outcomes that may be reasonably 

expected to occur if nothing unusual has intervened. ‘Probable’ means likely to happen.

“You are not required to unanimously agree as to which originally contemplated 

crime the defendant aided and abetted, so long as you are satisfied beyond a reasonable 

doubt and unanimously agree that the defendant aided and abetted the commission of an 

identified and defined target crime and that the crime of Murder was a natural and 

probable consequence of the commission of that target crime.”

The trial court also instructed the jury pursuant to CALIC No. 3.00 on the 

definition of “principals” and that, “[w]hen the crime charged is murder, the aider and 
25

abettor’s guilt is determined by the combined acts of all the participants as well as that 

person[’]s own mental state. If the aider and abettor’s mental state is more culpable than 

that of the actual perpetrator, that person’s guilt may be greater than that of the actual 

perpetrator. Similarly, the aider and abettor’s guilt may be less than the perpetrator’s, if 

the aider and abettor has a less culpable mental state.” The trial court also instructed the 

jury on direct aider and abettor liability pursuant to CALJIC No. 3.01.10

Senon originally argued on appeal that the trial court erred in failing to instruct the 

jury that it could find him “guilty, as an aider and abettor, of second degree murder even 

though the actual perpetrator of the murder was guilty of murder in the first degree.” 

Since he filed his briefs, however, the Supreme Court decided People v. Chiu (2014) 59 

Cal.4th 155, which addressed the issue of whether and in what circumstances a defendant 

can be convicted of first degree murder as an aider and abettor under the natural and 

probable consequences theory.

11 The Supreme Court’s decision in Chiu, which we are 

 

10 CALJIC No. 3.01 provided: “A person aids and abets the commission of a crime 

when he or she: [¶] (1) With knowledge of the unlawful purpose of the perpetrator, and 

[¶] (2) With the intent or purpose of committing or encouraging or facilitating the 

commission of the crime, and [¶] (3) By act or advice, aids, promotes, encourages or 

instigates the commission of the crime.

“A person who aids and abets the commission of a crime need not be present at the 

scene of the crime. [¶] Mere presence at the scene of a crime which does not itself assist 

the commission of the crime does not amount to aiding and abetting. [¶] Among 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. [¶] Mere knowledge that a crime is being committed and the failure to prevent

it does not amount to aiding and abetting.”

The court also instructed the jury that conviction of murder required a concurrence 

of act and specific intent. (CALJIC No. 3.31.) It instructed the jury on the definition of 

murder (CALJIC No. 8.10), malice aforethought (CALJIC No. 8.11), deliberate and 

premeditated murder (CALJIC No. 8.20), unpremeditated second degree murder 

(CALJIC No. 8.30), second degree murder resulting from an unlawful act dangerous to 

life (CALJIC No. 8.31), and the jury’s duty to find the degree of murder (CALJIC No. 

8.70).

11 The parties submitted supplemental letter briefs on the Supreme Court’s decision 

in Chiu.
26

bound to follow, compels a reversal and possible retrial of Senon’s conviction for first 

degree murder.

Summarizing the general principles behind the natural and probable consequences 

doctrine, the Supreme Court in Chiu stated: “‘“A person who knowingly aids and abets 

criminal conduct is guilty of not only the intended crime [target offense] but also of any 

other crime the perpetrator actually commits [nontarget offense] that is a natural and 

probable consequence of the intended crime.”’ [Citation.] ‘Thus, for example, if a 

person aids and abets only an intended assault, but a murder results, that person may be 

guilty of that murder, even if unintended, if it is a natural and probable consequence of 

the intended assault.’ [Citation.] [¶] A nontarget offense is a ‘“natural and probable 

consequence’ of the target offense if, judged objectively, the additional offense was 

reasonably foreseeable. [Citation.] The inquiry does not depend on whether the aider 

and abettor actually foresaw the nontarget offense. [Citation.] Rather, liability ‘“is 

measured by whether a reasonable person in the defendant’s position would have or 

should have known that the charged offense was a reasonably foreseeable consequence of 

the act aided and abetted.”’ [Citation.] Reasonable foreseeability ‘is a factual issue to be 

resolved by the jury.’ [Citation.]” (People v. Chiu, supra, 59 Cal.4th at pp. 161-162.) 

The Supreme Court noted, however, that it had “not previously considered how to 

instruct the jury on aider and abettor liability for first degree premeditated murder under 

the natural and probable consequences doctrine.” (Id. at p. 162.)

The Supreme Court observed that, under the natural and probable consequences 

doctrine, “‘[b]ecause the nontarget offense is unintended, the mens rea of the aider and 

abettor with respect to that offense is irrelevant and culpability is imposed simply 

because a reasonable person could have foreseen the commission of the nontarget crime.’ 

[Citation.]” (People v. Chiu, supra, 59 Cal.4th at p. 164.) Thus, because “the application 

of the natural and probable consequences doctrine [does not] depend[] on the 

foreseeability of every element of the nontarget offense,” “in the context of murder under 

the natural and probable consequences doctrine, cases have focused on the reasonable 
27

foreseeability of the actual resulting harm or the criminal act that caused that harm. 

[Citations.]” (Id. at p. 165.)

“In the context of murder,” the Supreme Court explained, “the natural and 

probable consequences doctrine serves the legitimate public policy concern of deterring 

aiders and abettors from aiding or encouraging the commission of offenses that would 

naturally, probably, and foreseeably result in an unlawful killing. A primary rationale for 

punishing such aiders and abettors—to deter them from aiding or encouraging the 

commission of offenses—is served by holding them culpable for the perpetrator’s 

commission of the nontarget offense of second degree murder. [Citation.] It is also 

consistent with reasonable concepts of culpability. Aider and abettor liability under the 

natural and probable consequences doctrine does not require assistance with or actual 

knowledge and intent relating to the nontarget offense, nor subjective foreseeability of 

either that offense or the perpetrator’s state of mind in committing it. [Citation.] It only 

requires that under all of the circumstances presented, a reasonable person in the 

defendant’s position would have or should have known that the nontarget offense was a 

reasonably foreseeable consequence of the act aided and abetted by the defendant. 

[Citation.]” (People v. Chiu, supra, 59 Cal.4th at pp. 165-166.)

The Supreme Court observed, “[h]owever, this same public policy concern loses 

its force in the context of a defendant’s liability as an aider and abettor of a first degree 

premeditated murder. First degree murder, like second degree murder, is the unlawful 

killing of a human being with malice aforethought, but has the additional elements of 

willfulness, premeditation, and deliberation which trigger a heightened penalty. 

[Citation.] That mental state is uniquely subjective and personal. It requires more than a 

showing of intent to kill; the killer must act deliberately, carefully weighing the 

considerations for and against a choice to kill before he or she completes the acts that 

caused the death. [Citations.] Additionally, whether a direct perpetrator commits a 

nontarget offense of murder with or without premeditation and deliberation has no effect 

on the resultant harm. The victim has been killed regardless of the perpetrator’s 

premeditative mental state. Although we have stated that an aider and abettor’s 
28

‘punishment need not be finely calibrated to the criminal’s mens rea’ [citation], the 

connection between the defendant’s culpability and the perpetrator’s premeditative state 

is too attenuated to impose aider and abettor liability for first degree murder under the 

natural and probable consequences doctrine, especially in light of the severe penalty 

involved and the above-stated public policy concern of deterrence.” (People v. Chiu, 

supra, 59 Cal.4th at p. 166.) For these reasons, the Supreme Court held “that punishment 

for second degree murder is commensurate with a defendant’s culpability for aiding and 

abetting a target crime that would naturally, probably, and foreseeably result in a murder 

under the natural and probable consequences doctrine. We further hold that where the 

direct perpetrator is guilty of first degree premeditated murder, the legitimate public 

policy considerations of deterrence and culpability would not be served by allowing a 

defendant to be convicted of that greater offense under the natural and probable 

consequences doctrine.” (Ibid.)

The Supreme Court added that “[a]iders and abettors may still be convicted of first 

degree premeditated murder based on direct aiding and abetting principles. [Citation.] 

Under those principles, the prosecution must show that the defendant aided or 

encouraged the commission of the murder with knowledge of the unlawful purpose of the 

perpetrator and with the intent or purpose of committing, encouraging, or facilitating its 

commission. [Citation.] Because the mental state component—consisting of intent and 

knowledge—extends to the entire crime, it preserves the distinction between assisting the 

predicate crime of second degree murder and assisting the greater offense of first degree 

premeditated murder. [Citations.] An aider and abettor who knowingly and intentionally 

assists a confederate to kill someone could be found to have acted willfully, deliberately, 

and with premeditation, having formed his own culpable intent. Such an aider and 

abettor, then, acts with the mens rea required for first degree murder.” (People v. Chiu, 

supra, 59 Cal.4th at pp. 166-167.)

Finally, the Supreme Court addressed the issue of prejudice. The instructions in 

Chiu allowed the jury to convict the defendant either as a direct aider and abettor or under 
29

the natural and probable consequences doctrine.12 (People v. Chiu, supra, 59 Cal.4th at 

pp. 160, 167.) The record in that case suggested that the jury based its verdict on the 

natural and probable consequences doctrine. (Id. at pp. 167-168.) Because the Supreme 

Court could not conclude beyond a reasonable doubt that the defendant’s first degree 

murder conviction was based on a legally valid theory, the Supreme Court determined 

that the proper remedy was to reverse the defendant’s first degree murder conviction and 

to give the People the option of accepting a reduction in the conviction to second degree 

murder or retrying the case. (Id. at p. 168.)

The People acknowledge that the instructions the trial court gave here contained 

the same flaw as the instructions in Chiu: They allowed the jury to convict Senon of first 

degree murder as an aider and abettor under the natural and probable consequences 

doctrine. The People concede that, “as in Chiu, the jury was erroneously instructed that it 

could find a guilty verdict of ‘murder’ based on the natural and probable consequence of 

aiding and abetting. [Citations.] This improperly allowed the jury to find that a 

defendant was guilty of first degree premeditated murder as a natural and probable 

consequence of an assault likely to produce great bodily injury.”

The People argue, however, that the instructional error under Chiu was harmless 

because the evidence of the rules of the Mexican Mafia showed that Daniel could not 

have shot Johnny without Senon’s permission and encouragement. Had Daniel done so, 

Daniel would have broken Mexican Mafia rules, he would have been subject to 

punishment including death, and Senon would not have socialized with Daniel and his 

family after the shooting. Officer Maldonado and defense gang expert Alfonso testified 

that killing someone in the presence of a member of the Mexican Mafia without prior 

permission could earn the killer a death sentence. From this evidence, the People assert 

that “if the jury found that Daniel was guilty of premeditated murder, it necessarily found 

 

12 The instructions in Chiu were different than the instructions here because they 

were based on the judicial council-approved form in CALCRIM rather than CALJIC.
30

that Senon was guilty of directly aiding and abetting the premeditated murder, not an 

assault.”

Perhaps, but not necessarily so. The evidence of Mexican Mafia rules does 

support the People’s contention that the jury could have found Senon guilty of first 

degree premeditated murder on a direct aiding and abetting theory that he “aided or 

encouraged the commission of the murder with knowledge of the unlawful purpose of the 

perpetrator and with the intent or purpose of committing, encouraging, or facilitating its 

commission.” (People v. Chiu, supra, 59 Cal.4th at p. 167.) The evidence, however, also 

supports a finding that Senon and Daniel went into Tamble’s office to assault but not kill 

Johnny, that Daniel did not decide to kill Johnny until Johnny and Garcia fought back, 

and that Senon did not approve of Daniel’s actions (thereby sparing Daniel’s life) until 

after the shooting. If the jury found that Senon only intended an assault, then his 

conviction of first degree murder under the natural and probable consequences doctrine

cannot stand under Chiu.

The People argued both theories of liability to the jury. The prosecutor argued, in 

support of a direct aiding and abetting theory, that Senon’s actions of calling Daniel to 

the Wilmington Inn and leaving Torres down the street in a place of safety showed “he is 

planning to do something he doesn’t want her there for. Think about that. That right 

there tells you that he is premeditating this entire thing. He doesn’t need to take her 

around the corner to go slap somebody around.” The prosecutor argued that after Senon 

left Torres and returned to the Wilmington Inn, there was “a series of actions that the 

defendants undertook that tells you what was going on [in] their heads and tells you that 

they deliberated and premeditated.” The prosecutor also argued, however, in support of a

natural consequences aiding and abetting theory. The prosecutor told the jury that, in 

order to convict Senon of first degree murder, “you don’t even have to have intended to 

aid and abet the murder. . . . All the defendant needs to have done is intended to aid and 

abet the assault. If, under all the circumstances, the murder ended up being a natural and 

probable consequence of the assault or an assault with a firearm.” Therefore, the 

prosecutor argued, “[i]f Senon Grajeda intended nothing but to help Daniel Grajeda go in 
31

and . . . do a shooting, or have the two of them go in and commit a beat-down, a slapdown together, if that was his intent, that’s all enough, if under the circumstance it would 

be natural and probable foreseeable that a murder would result.”

Although it is possible that the jury may have based its verdict on a direct aiding 

and abetting theory, rather than the natural and probable consequences theory, we cannot 

conclude beyond a reasonable doubt that the jury did so. (See People v. Chiu, supra, 59 

Cal.4th at p. 167 [“[d]efendant’s first degree murder conviction must be reversed unless 

we conclude beyond a reasonable doubt that the jury based its verdict on the legally valid 

theory that defendant directly aided and abetted the premeditated murder”].) Pursuant to 

the Supreme Court’s decision in Chiu, we must reverse Senon’s first degree murder 

conviction and allow the People the choice of accepting a reduction of Senon’s 

conviction to second degree murder or retrying the case.13

D. Denial of Severance

Daniel contends that “[t]he confluence of prejudice arising from the trial court’s 

erroneous denials of [his] interrelated motions for severance, for exclusion of Mexican 

Mafia gang evidence, and for new trial” violated his rights to due process and a fair trial 

and requires reversal of the judgment. We find no abuse of discretion in the trial court’s 

rulings and no due process violation.

1. Proceedings in the trial court

Prior to trial, counsel for Daniel stated that he had learned the prosecutor intended 

to introduce Enriquez’s testimony regarding Senon’s involvement with the Mexican 

 

13 A reduction of Senon’s conviction to second degree murder will reduce his 

sentence for murder from 75 years to life to 45 years to life (Pen. Code, §§ 190, subd. (a), 

667, subds. (b)-(i), 1170.12), plus an additional 25 years to life for the intentional 

discharge of a firearm (id., § 12022.53, subd. (d)) and 10 years for the two prior serious 

felony convictions (id., § 667, subd. (a)(1)), for a total term of imprisonment of 80 years 

to life rather than 110 years to life.
32

Mafia, which counsel contended did not apply to Daniel. The prosecutor responded that 

“there are no statements that I am going to use that would require a dual jury. But . . . we 

did have Mr. Enriquez tell us about admissions that Mr. [Senon] Grajeda had made, 

discussing Mafia business, discussing specific incidents where he had ordered violent 

things to happen, that sort of thing.” When counsel for Daniel expressed concern that 

“this stuff is going to brush over on top of my client,” the court stated that “that’s the 

nature of evidence of gang allegations.” Counsel for Daniel argued that Enriquez’s 

proposed testimony about the Mexican Mafia did not apply to Daniel because Daniel was 

not a member of the Mexican Mafia and did not know Enriquez. After counsel clarified 

that he was objecting to the testimony under section 352, the court ruled that the evidence 

is more probative than prejudicial and overruled the objection. 

The following day, counsel for Daniel filed a motion for separate trials, or in the 

alternative separate juries, on the ground that the jury would impute Enriquez’s testimony 

about Senon’s involvement with and actions on behalf of the Mexican Mafia to Daniel 

because of Daniel’s “purported association with Senon.” Counsel for Daniel argued that 

separate trials were necessary to avoid the danger that the jury would convict Daniel 

based on “spillover prejudice.” The trial court denied the motion.

At the subsequent hearing on Senon’s motions in limine to exclude Enriquez’s 

testimony and to limit the number of gang experts, counsel for Daniel stated that, because

the court was going to admit Enriquez’s testimony under section 1101(b), counsel for 

Daniel was renewing his motion for separate trials. Counsel argued that it was “unduly 

prejudicial as to my client if [these] specific acts of conduct are going to be introduced 

into evidence . . . .” The prosecutor responded that, although Daniel was not a member of 

the Mexican Mafia, the evidence would show that Daniel was a member of the Westside 

Wilmas and committed the crime on behalf of the Mexican Mafia, which in turn elevated 

his status and the status of his gang within the Mexican Mafia. When the trial court again 

ruled that Enriquez’s testimony would be admitted, counsel for Daniel asked the court to

instruct the jury that Enriquez’s statements were “not being introduced as direct evidence 

against my client.” The court declined to give such an instruction.
33

Counsel for Daniel renewed his objection to Enriquez’s testimony during trial. 

The trial court overruled the objections. Counsel also renewed his request for a limiting 

instruction that would instruct the jury not to consider the evidence against Daniel. The 

trial court again denied the request, noting that Enriquez’s statements laid the foundation 

for the gang allegation.

After the jury returned its verdicts, Daniel moved for a new trial, based in part on 

the admission of Enriquez’s testimony without a limiting instruction. The trial court 

denied the motion.

2. Severance

The “‘Legislature has expressed a preference for joint trials. [Citation.] [Penal 

Code s]ection 1098 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.” The court may, in its discretion, order 

separate trials if, among other reasons, there is an incriminating confession by one 

defendant that implicates a codefendant, or if the defendants will present conflicting 

defenses. [Citations.] Additionally, severance may 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.] 

[¶] We review a trial court’s denial of a severance motion for abuse of discretion based 

on the facts as they appeared when the court ruled on the motion. [Citation.] If we 

conclude the trial court abused its discretion, reversal is required only if it is reasonably 

probable that the defendant would have obtained a more favorable result at a separate 

trial. [Citations.] If the court’s joinder ruling was proper when it was made, however, we 

may reverse a judgment only on a showing that joinder “‘resulted in “gross unfairness” 

amounting to a denial of due process.’” [Citation.]’ [Citation.]” (People v. Homick

(2012) 55 Cal.4th 816, 848; accord, People v. Souza (2012) 54 Cal.4th 90, 109; see 

People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 379.) “When defendants are 

charged with having committed ‘common crimes involving common events and victims,’ 
34

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; accord, People v. Bryant, supra, 60 

Cal.4th at p. 379.)

Daniel first argues that the trial court abused its discretion in denying his 

severance motions because Enriquez’s testimony regarding Senon’s uncharged offenses 

was not cross-admissible against Daniel in that “[w]hether or not Senon was a long-time 

member of the Mexican Mafia with a sordid history of violence had no tendency in 

reason to prove any disputed issue in the case against” Daniel. Cross-admissibility is one 

of the factors courts consider in determining whether severance of charges against a 

defendant is proper under Penal Code section 954. (People v. McKinnon, supra, 52 

Cal.4th at p. 630; accord, People v. Thomas (2012) 53 Cal.4th 771, 798-799; see also 

Calderon v. Superior Court (2001) 87 Cal.App.4th 933, 938, 939 [finding Penal Code 

section 954 factors, including “whether evidence of the crimes would be crossadmissible,” “instructive” on a Penal Code section 1098 motion where the crimes 

charged against multiple defendants occurred “on separate occasions”].)

Daniel’s characterization of the evidence and issues here is inaccurate. As 

discussed, Enriquez’s testimony was admissible to prove the gang allegations and motive, 

which were disputed issues in the case against Daniel as well as Senon. Enriquez 

explained that a Sureno like Daniel can enhance his stature and the stature of his gang by 

committing crimes sanctioned by the Mexican Mafia, and can increase his chances of 

becoming a member of the Mexican Mafia. Enriquez’s testimony about Senon’s gang 

activities explained to the jury the nature of the relationship between the Mexican Mafia 

and the Sureno gangs and the motives a Sureno like Daniel would have to commit crimes 

in order to advance up the ranks in the Mexican Mafia gang culture. Thus, the evidence 

was cross-admissible and did not require severance of Daniel’s trial from Senon’s. (See 

People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 381 [severance of trial of 

two defendants from trial of the third defendant under Penal Code section 1098 was not 

required where “much evidence about which they complain would have been relevant 

even at a separate trial”]; People v. Souza, supra, 54 Cal.4th at p. 112 [“no evidence was 
35

presented at the joint trial that would not have been presented at a separate trial”]; cf. 

People v. Merriman, supra, 60 Cal.4th at p. 38 [“[i]f the evidence underlying the joined 

charges would have been cross-admissible at hypothetical separate trials, ‘that factor 

alone is normally sufficient to dispel any suggestion of prejudice and to justify a trial 

court’s refusal to sever properly joined charges’”].)14

Daniel also argues that the evidence against him was weaker than the evidence

against Senon, particularly the identification evidence, and that “the weak prosecution 

case against [him] shows that his conviction was undoubtedly tainted by his association 

with Senon Grajeda and not based solely on the evidence of his personal guilt.” He relies 

on the principle that evidence that “improperly invites a finding of guilt by association

. . . undermines the defendant’s right to a fair trial.” (People v. Castaneda (1997) 55 

Cal.App.4th 1067, 1072.) This principle does not apply here.

In People v. Castaneda, supra, 55 Cal.App.4th 1067 the prosecutor presented

expert testimony that “the typical heroin dealer” in the area “is usually Hispanic male 

adult.” (Id. at p. 1072, italics omitted.) The defendant, who was charged only with 

possession of heroin, fit this profile. The court found that from the expert testimony “the 

jury was invited to infer that [the defendant] was actually guilty of a crime even greater 

than charged, that of selling heroin. An inappropriate and dangerous implication of this 

evidence was: Do not let this man free; he may have done more than possess heroin—he 

may be a heroin dealer. However, every defendant has the right to be tried based on 

 

14 In a related argument, Daniel contends the admission of Enriquez’s testimony 

about Senon’s uncharged offenses deprived Daniel of a fair trial and due process of law. 

Daniel bases this argument on the prejudice inherent in gang evidence and the “patently 

prejudicial impact of the Mexican Mafia evidence . . . .” As noted, however, this 

evidence was admissible against both Senon and Daniel to prove the motivation for the 

murder and the elements of the gang allegation. (See People v. Memory, supra, 182 

Cal.App.4th at p. 859; People v. Ruiz, supra, 62 Cal.App.4th at p. 240.) Admission of 

this evidence did not deprive Daniel of a fair trial. (See People v. Garcia (2008) 168 

Cal.App.4th 261, 294 [properly admitted “gang-related evidence and gang expert 

testimony” “did not deprive [the defendant] of a fair trial”].)
36

evidence tying him to the specific crime charged, and not on general facts accumulated 

by law enforcement regarding a particular criminal profile. [Citations.]” (Ibid.) The 

expert testimony thus invited the jury to find the defendant “guilt[y] by association” and 

undermined his right to a fair trial. (Ibid.)

Here, unlike Castaneda, the challenged evidence was relevant to the crime 

charged: a gang-motivated murder. Both Daniel and Senon participated in the murder. 

Whether Daniel was tried separately or tried jointly with Senon, the jury would hear 

evidence about Senon and the Mexican Mafia, and Daniel’s association with and relation 

to Senon, all of which was necessary to prove the crime charged. The “guilt by 

association” problem discussed in Castaneda was not present here. The challenged 

evidence was not an invitation to the jury to find Daniel guilty based solely on his 

association with Senon. (See People v. Souza, supra, 54 Cal.4th at p. 112 [severance 

properly denied where “no danger of . . . prejudicial association”].) As the Supreme 

Court recently stated in People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th 335: 

“Whenever defendants are jointly tried, part of the prosecution’s case will naturally 

attempt to establish that the defendants associated with each other, at least to the extent 

that they all participated in the crimes at issue. To some degree . . . ‘[w]hen many 

conspire, they invite mass trial by their conduct.’ [Citation.] That defendants associated 

more broadly than their specific involvement in the alleged crimes may also be directly 

relevant to establishing their guilt. . . . [W]e [have] observed that evidence of the 

defendants’ membership in a gang [does] not create improper guilt by association, but 

instead ‘form[s] a significant evidentiary link in the chain of proof tying them to the 

crimes.’ Moreover, it is also quite likely that different defendants participating together 

in a crime will have different levels of involvement and different personal backgrounds. 

These circumstances alone do not compel severance or render a joint trial grossly unfair. 

Individuals who choose to commit crimes together are not generally entitled to shield the 

true extent of their association by the expedient of demanding separate trials.” (Id. at 

p. 383.)
37

Daniel further argues that his defense and Senon’s defense were “irreconcilable in 

exactly the way that makes severance mandatory to preserve due process.” Daniel’s 

defense was misidentification, while Senon’s defense was lack of participation in the 

shooting. Daniel contends that Senon’s defense “implicitly incriminated” him because 

“[n]o reasonable juror could have disregarded Senon’s admitted prior bad acts in 

determining whether [Daniel] acted in support of Senon who was present at the fatal 

shooting.”

Severance may be appropriate when the defendants have conflicting or 

antagonistic defenses. (People v. Homick, supra, 55 Cal.4th at pp. 848, 850.) In order to 

obtain severance on this basis, a defendant must “‘“‘“demonstrate[] that the conflict is so 

prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that 

this conflict alone demonstrates that both are guilty.”’ [Citation.] When, however, there 

exists sufficient independent evidence against the moving defendant, it is not the conflict 

alone that demonstrates his or her guilt, and antagonistic defenses do not compel 

severance.” [Citation.]’ [Citations.]” (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 

1173; accord, Homick, supra, at p. 850.) As the Supreme Court explained in People v. 

Byrant, Smith and Wheeler, supra, 60 Cal.4th 335: “Simply because the prosecution’s 

case will be stronger if defendants are tried together, or that one defense undermines 

another, does not render a joint trial unfair. [Citation.] Indeed, important concerns of 

public policy are served if a single jury is given a full and fair overview of the 

defendants’ joint conduct and the assertions they make to defend against ensuing 

charges.” (Id. at p. 379.)

We doubt that Senon’s defense he was not involved in the shooting, and Daniel’s 

defense he was not the person who came to the Wilmington Inn in the SUV and did the 

shooting, were so irreconcilable that the jury would convict Daniel based on that conflict 

alone. Certainly Senon, as a high-ranking member of the Mexican Mafia, had plenty of 

Surenos to do his bidding; it was not necessary that he select Daniel to do it. In any 

event, Daniel did not object and move for severance based on irreconcilable defenses, nor 

did he renew his motion to sever at any time during trial as the parties introduced 
38

evidence relevant to the two defenses. Daniel therefore forfeited his claim that severance 

was required because of irreconcilable defenses. (See People v. Lucas (2014) 60 Cal.4th 

153, 219 [“to the extent defendant argues that the court’s pretrial consideration of defense 

evidence was relevant to show that a weak case was being joined with a strong one to his 

prejudice, that claim is forfeited because defendant passed on the opportunity to renew 

such a claim after presenting his evidence at trial”]; People v. Homick, supra, 55 Cal.4th 

at p. 848, fn. 21 [“‘[d]efendant has forfeited this issue on appeal because he failed to 

assert this ground at the time his severance motion was heard,” and “‘[i]f further 

developments occur during trial that a defendant believes justify severance, he must 

renew his motion to sever’”].)

3. New Trial

“‘“‘We review a trial court’s ruling on a motion for a new trial under a deferential 

abuse-of-discretion standard.’ [Citations.] ‘“A trial court’s ruling on a motion for new 

trial is so completely within that court’s discretion that a reviewing court will not disturb 

the ruling absent a manifest and unmistakable abuse of that discretion.”’” [Citation.]’ 

[Citation.]” (People v. McCurdy, supra, 59 Cal.4th at p. 1108.)

The basis of Daniel’s argument that the trial court erred in denying his motion for 

a new trial is the same as the basis of his argument that the trial court erred in denying his 

motion for a trial severance. We find no abuse of discretion in the trial court’s denial of 

Daniel’s new trial motion for the same reasons. We similarly reject Daniel’s claim of 

cumulative error. (See People v. Trinh (2014) 59 Cal.4th 216, 253 [“[c]onsistent with our 

review of defendant’s individual claims, we find no cumulative error occurred”]; People 

v. Avila (2014) 59 Cal.4th 496, 520 [no cumulative error where “there was no error to 

accumulate”].)

E. Failure To Instruct Sua Sponte with CALJIC No. 8.71

Daniel argues that the trial court had a sua sponte obligation to give CALJIC 

No. 8.71, and that the court’s failure to do so constituted reversible error. CALJIC 
39

No. 8.71 provides: “If any juror is convinced beyond a reasonable doubt that the crime of 

murder has been committed by a defendant, but has a reasonable doubt whether the 

murder was of the first or of the second degree, that juror must give defendant the benefit 

of that doubt and find that the murder is of the second degree.”

The trial court instructed the jury on the definition of murder (CALJIC No. 8.10), 

the definition of malice aforethought (CALJIC No. 8.11), and deliberate and 

premeditated murder (CALJIC No. 8.20). The court instructed the jury pursuant to 

CALJIC No. 8.30 that “[m]urder of the second degree is also the unlawful killing of a 

human being with malice aforethought when the perpetrator intended unlawfully to kill a 

human being but the evidence is insufficient to prove deliberation and premeditation.” 

The trial court further instructed the jury pursuant to CALJIC No. 8.70: “Murder is 

classified into two degrees. If you should find the defendant guilty of murder, you must 

determine and state in your verdict whether you find the murder to be of the first or 

second degree.” The court also instructed the jury pursuant to CALJIC No. 8.74: 

“Before you may return a verdict in this case, you must agree unanimously not only as to 

whether the defendant is guilty or not guilty, but also, if you should find him guilty of an 

unlawful killing, you must agree unanimously as to whether he is guilty of murder of the 

first degree or murder of the second degree. [¶] However, you are not required to agree 

unanimously on the theory of guilt.”

The trial court, however, refused to instruct the jury pursuant to CALJIC No. 8.75, 

which instructs the jury that if it is unable to reach a unanimous decision as to first degree 

murder, it must find the defendant not guilty of first degree murder before it can find the 

defendant guilty of second degree murder. The court explained that CALJIC No. “8.75 is 

a Stone instruction, I don’t like to give a Stone instruction . . . .”15

 

15 In Stone v. Superior Court (1982) 31 Cal.3d 503 the Supreme Court held that “the 

trial court is constitutionally obligated to afford the jury an opportunity to render a partial 

verdict of acquittal on a greater offense when the jury is deadlocked only on an 

uncharged lesser included offense. Failure to do so will cause a subsequently declared 

mistrial to be without legal necessity” for double jeopardy purposes. (Id. at p. 519.)
40

In People v. Moore (2011) 51 Cal.4th 386, on which Daniel relies, the trial court 

instructed the jury with a prior version of CALJIC No. 8.71, which read: “‘If you are 

convinced beyond a reasonable doubt and unanimously agree that the crime of murder 

has been committed by a defendant, but you unanimously agree that you have a 

reasonable doubt whether the murder was of the first or of the second degree, you must 

give defendant the benefit of that doubt and return a verdict fixing the murder as of the 

second degree.’” (Id. at p. 409, italics omitted.) The Supreme Court disapproved of the 

use of this instruction and of CALJIC No. 8.72, which contained similar language, 

explaining that these “instructions carry at least some potential for confusing jurors about 

the role of their individual judgments in deciding between first and second degree 

murder, and between murder and manslaughter. The references to unanimity in these 

instructions were presumably added to convey the principle that the jury as a whole may 

not return a verdict for a lesser included offense unless it first reaches an acquittal on the 

charged greater offense. [Citation.] But inserting this language into CALJIC Nos. 8.71 

and 8.72, which address the role of reasonable doubt in choosing between greater and 

lesser homicide offenses, was unnecessary, as CALJIC No. 8.75 fully explains that the 

jury must unanimously agree to not guilty verdicts on the greater homicide offenses 

before the jury as a whole may return verdicts on the lesser.” (Id. at pp. 411-412, fn. 

omitted.)

Moore does not support Daniel’s contention that the trial court has a sua sponte 

duty to instruct the jury pursuant to CALJIC No. 8.71. Nor does it hold that CALJIC 

No. 8.75 must be given if CALJIC No. 8.71 is not. The Supreme Court in Moore

emphasized that the potential for confusion is the role of a juror’s individual judgment, 

not the necessity of an instruction regarding how to approach the task of determining 

whether the defendant is guilty of first or second degree murder.

In People v. Hinton (2006) 37 Cal.4th 839, on which the People rely, the trial 

court instructed the jury pursuant to CALJIC Nos. 8.30 and 8.75, but it did not give 

CALJIC Nos. 8.70 and 8.71. The defendant argued that, without the latter two 

instructions, “the jury would not have understood ‘how doubts about the proper 
41

offense—first degree murder or second degree murder—should be resolved.’” (Hinton, 

supra, at p. 883.) The Supreme Court disagreed, pointing out that “[i]n addition to

CALJIC No. 8.75, which directed the jury to consider second degree murder if it was 

unable to find defendant guilty unanimously and beyond a reasonable doubt of first 

degree murder, the jury was instructed that a guilty verdict required unanimous 

agreement that defendant’s guilt of the crime had been established beyond a reasonable 

doubt. Considering these instructions as a whole [citation], the jury was adequately 

instructed as to the significance of a reasonable doubt as to defendant’s guilt of first 

degree murder and the availability of second degree murder as a lesser offense.” (Ibid.)

No case has held that the trial court has a sua sponte duty to give CALJIC 

No. 8.71,

16 and we decline to do so here. Moore and Hinton instruct us to look at the 

instructions as a whole to determine whether the instructions adequately informed the 

jury “as to the significance of a reasonable doubt as to defendant’s guilt of first degree 

murder and the availability of second degree murder as a lesser offense.” (People v. 

Hinton, supra, 37 Cal.4th at p. 883.) The instructions here told the jury that murder is of 

the second degree if “the evidence is insufficient to prove deliberation and 

premeditation.” (CALJIC No. 8.30.) If the jury found the defendants guilty of murder, 

then the jury had to determine whether the murder was of the first or second degree. 

(CALJIC No. 8.70.) The jury had to “agree unanimously not only as to whether the 

defendant is guilty or not guilty, but also, . . . as to whether he is guilty of murder of the 

first degree or murder of the second degree.” (CALJIC No. 8.74.) The jury was also 

given the standard instruction on the People’s burden to prove guilt beyond a reasonable 

doubt. (CALJIC No. 2.90.) Taken as a whole, these instructions adequately informed the 

jury that if it found Senon and Daniel guilty of murder but the People failed to prove 

beyond a reasonable doubt the premeditation and deliberation necessary for a first degree 

murder conviction, the jury could convict the two defendants of second degree murder.

 

16 Although the use note for CALJIC No. 8.71 states that the instruction should be 

given sua sponte.
42

F. Exclusion of Evidence of Third Party Culpability

During counsel for Daniel’s cross-examination of Detective Rodriguez, counsel 

attempted to elicit testimony that the gun used to kill Johnny was used in the commission 

of a crime that occurred while Daniel and Senon were in custody. The People objected, 

and the trial court asked for an offer of proof. Counsel for Daniel stated, “Well, I can 

show that I have a description of the shooter in the other case that comes very close to 

matching my client, about the same size, same height, same weight, facial tattoos, in 

another case.” The trial court ruled that the offer of proof did not meet the standards of 

People v. Hall (1986) 41 Cal.3d 826, but stated that if counsel could meet those 

standards, he could raise the issue again.

In People v. Hall, supra, 41 Cal.3d at p. 833 the Supreme Court held that evidence 

of third party culpability for the charged crime “need not show ‘substantial proof of a 

probability’ that the third person committed the act; it need only be capable of raising a 

reasonable doubt of defendant’s guilt.” (See People v. McWhorter (2009) 47 Cal.4th 

318, 368.) The “‘holding [in Hall] did not, however, require the indiscriminate 

admission of any evidence offered to prove third-party culpability. The evidence must 

meet minimum standards of relevance: “evidence of mere motive or opportunity to 

commit the crime in another person, without more, will not suffice to raise a reasonable 

doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking 

the third person to the actual perpetration of the crime.” [Citation.]” (Ibid.) In addition, 

“[i]n assessing an offer of proof relating to such evidence, the court must decide whether 

the evidence could raise a reasonable doubt as to defendant’s guilt and whether it is 

substantially more prejudicial than probative under . . . section 352. [Citations.]” (Id. at 

pp. 367-368.)

Here, the proffered evidence that another gang member had subsequently used the 

same gun Daniel used did not meet the minimum standards of relevance or raise a 

reasonable doubt as to Daniel’s guilt. The fact that a gang member who may have looked 

like Daniel used the same gun in a subsequent shooting does not, without more, raise a 

reasonable doubt as to Daniel’s guilt. The other gang member may have received the gun 
43

after the shooting in this case. Indeed, as Detective Rodriguez testified in response to 

questioning by counsel for Daniel, “one of the things that is common with gangs is [that]

they will share things like cars or guns.” Nor was there was any direct or circumstantial 

evidence connecting any such third party to the shooting in this case. The trial court did 

not abuse its discretion in excluding the evidence. (See People v. Lucas, supra, 60 

Cal.4th at p. 280 [no error in excluding evidence of third party culpability where the 

connection “was speculative with no evidence, either direct or circumstantial”]; People v. 

McWhorter, supra, 47 Cal.4th at p. 372 [trial court properly excluded evidence of third 

party culpability where link “was entirely speculative”].)

G. Penal Code Section 654

Daniel argues that the trial court should have stayed his sentence on his conviction 

of felon in possession of a firearm pursuant to Penal Code section 654 (section 654) 

because his possession of the firearm was part of the same indivisible course of conduct 

as the shooting. California law does not support Daniel’s argument.

“The California Supreme Court has stated: ‘The test for determining whether 

section 654 prohibits multiple punishment has long been established: “Whether a course 

of criminal conduct is divisible and therefore gives rise to more than one act within the 

meaning of section 654 depends on the intent and objective of the actor. If all of the 

offenses were incident to one objective, the defendant may be punished for any one of 

such offenses but not for more than one.” [Citation.]’” (People v. Ortiz (2012) 208 

Cal.App.4th 1354, 1377; accord, People v. Capistrano (2014) 59 Cal.4th 830, 885.) “‘On

the other hand, if the evidence discloses that a defendant entertained multiple criminal 

objectives which were independent of and not merely incidental to each other, he may be 

punished for the independent violations committed in pursuit of each objective even 

though the violations were parts of an otherwise indivisible course of conduct.’

[Citation.]” (People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414; accord, People v. 

Galvez (2011) 195 Cal.App.4th 1253, 1262-1263.)
44

“‘“The question whether . . . section 654 is factually applicable to a given series of 

offenses is for the trial court, and the law gives the trial court broad latitude in making 

this determination. Its findings on this question must be upheld on appeal if there is any 

substantial evidence to support them.” [Citation.]’” (People v. Galvez, supra, 195 

Cal.App.4th at p. 1263.) “‘We review the trial court’s determination in the light most 

favorable to the respondent and presume the existence of every fact the trial court could 

reasonably deduce from the evidence.’ [Citation.]” (People v. Ortiz, supra, 208 

Cal.App.4th at p. 1378.)

“In cases involving firearms and multiple punishment issues, a section 654, 

subdivision (a) violation has been held to occur in an unusual factual scenario. 

Section 654, subdivision (a) has been held to apply when fortuitous circumstances place 

the firearm in the accused’s hands only at the instant of the commission of another 

offense. (People v. Bradford (1976) 17 Cal.3d 8, 21-23 . . . ; People v. Venegas (1970) 

10 Cal.App.3d 814, 818-821 . . . .) For example in Bradford, after robbing a bank and 

driving away in a car, a state traffic officer stopped the defendant for speeding. The 

defendant then struggled with the officer. The defendant got control of the gun during the 

struggle and fired shots at the officer. In concluding section 654 barred multiple 

sentencing for the assault and weapons possession, our Supreme Court explained, 

‘Defendant’s possession of [the officer’s] revolver was not “antecedent and separate”

from his use of the revolver in assaulting the officer.’ [Citations.] In Venegas, the victim 

pulled a gun and a struggle ensued with the defendant. During the struggle, the defendant 

shot the victim. [Citation.] The Court of Appeal held: ‘Here the evidence shows a 

possession only at the time defendant shot [the victim]. Not only was the possession 

physically simultaneous, but the possession was incidental to only one objective, namely 

to shoot [the victim].’ [Citations.] Our colleagues in Division Two of the Fourth 

Appellate District synthesized the holdings in Bradford and Venegas thusly, ‘From 

Bradford and Venegas, we distill the principle that if the evidence demonstrates at most 

that fortuitous circumstances put the firearm in the defendant’s hand only at the instant of 

committing another offense, section 654 will bar a separate punishment for the 
45

possession of the weapon by an ex-felon.’ [Citations.]” (People v. Garcia (2008) 167 

Cal.App.4th 1550, 1565; see People v. Wynn (2010) 184 Cal.App.4th 1210, 1217 [“courts 

have determined that section 654 applies where the defendant obtained the prohibited 

weapon during the assault in which he used the weapon,” but not “when the weapon 

possession preceded the assault”].)

Here, the evidence showed that Daniel arrived at the Wilmington Inn with a gun in 

his waistband, used the gun to shoot Johnny, and then left with the gun. The evidence 

does not show that the gun fortuitously appeared in Daniel’s hand before he shot Johnny, 

and there was no evidence that Daniel left the gun at the scene when he departed. Section 

654 did not bar his sentence for being a felon in possession of a firearm. (See People v. 

Rosas (2010) 191 Cal.App.4th 107, 111 [“no ‘fortuitous circumstances’ putting the 

weapon in [the defendant’s] hand at the moment of the other offenses such that the act of 

possession might in some meaningful way be indistinguishable from the two attempted 

murders”].)

H. Sentence for Possession of a Firearm by a Felon

The trial court imposed a five-year gang enhancement under Penal Code 

section 186.22, subdivision (b)(1)(B), on Daniel’s conviction for possession of a firearm 

by a felon (id., § 12021, subd. (a)(1)). We agree with Daniel’s argument, and the 

People’s concession, that this was error.

Penal Code section 186.22, subdivision (b)(1), provides that any person who is 

convicted of a felony committed for the benefit of a criminal street gang “shall, upon 

conviction of that felony, in addition and consecutive to the punishment prescribed for 

the felony . . . of which he or she has been convicted, be punished as follows: [¶] 

(A) Except as provided in subparagraphs (B) and (C), the person shall be punished by an 

additional term of two, three, or four years at the court’s discretion. [¶] (B) If the felony 

is a serious felony, as defined in subdivision (c) of Section 1192.7, the person shall be 

punished by an additional term of five years.”
46

Possession of a firearm by a felon is not a serious felony under subdivision (c) of 

Penal Code section 1192.7. Where committed for the benefit of a criminal street gang, 

however, it becomes a serious felony under subdivision (c)(28), which includes “any 

felony offense, which would also constitute a felony violation of Section 186.22.” (Pen. 

Code, § 1192.7, subd. (c)(28).) In People v. Briceno (2004) 34 Cal.4th 451 the Supreme 

Court held that Penal Code section 186.22, subdivision (b)(1)(A)-(C), refers to the 

current proceeding, while Penal Code section 1192.7, subdivision (c), “comes into play 

only if the defendant reoffends, at which time any prior felony that is gang related is 

deemed a serious felony. Thus, any felony that is gang related is not treated as a serious 

felony in the current proceeding,” making subdivision (b)(1)(A) of section 186.22 the 

applicable sentencing provision. (Briceno, supra, at p. 465.) Because a violation of 

Penal Code section 1202117 only became a serious felony when it was enhanced under 

section 186.22, subdivision (b)(1), it was not subject to the five-year enhancement 

mandated by subdivision (b)(1)(B) of section 186.22. (Briceno, supra, at p. 465; cf. 

People v. Garcia, supra, 167 Cal.App.4th at p. 1563.) Therefore the five-year 

enhancement imposed under Penal Code section 186.22, subdivision (b)(1)(B), must be 

stricken, and the matter must be remanded for resentencing under subdivision (b)(1)(A) 

of Penal Code section 186.22.

 

17 This statute was repealed January 1, 2012. (Stats. 2010, ch. 711, § 4.) See now 

Penal Code section 29800.
47

DISPOSITION

Senon’s conviction for first degree murder is reversed, and the trial court is 

directed to give the People the option of accepting a reduction in the conviction to second 

degree murder or retrying the case against Senon. The five-year enhancement imposed 

on Daniel’s conviction of possession of a firearm by a felon under Penal Code section 

186.22, subdivision (b)(1)(B), is stricken, and the matter is remanded for resentencing on 

count 2 under subdivision (b)(1)(A) of Penal Code section 186.22. In all other respects, 

the judgments are affirmed.

SEGAL, J.*

We concur:

PERLUSS, P. J.

WOODS, J.

 

*

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.