Filed 12/24/14 P. v. Val erio & Kelly CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v.
NIC HOLAS DIOGENES VALERIO and JARRELL KELLY , Defendant s and Appellant s

. G047217 (Super. Ct. No. 08NF4115)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Thomas M. Goethals, Judge. Affirm ed in part, reversed in part, and remanded with directions

.

Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant Nicholas Diogenes Valerio.

Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appe llant Jarrell Kelly.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland , Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.2 INTR ODUCTION Early o ne morning in 2006, gunfire erupted in the parking lot of a Denny’s
restaurant in Anaheim . When the shooting stopped, Armand Jones , a promising young
actor, was dead , and Ronnell Spencer , one of Jones’ s friends and a clothing store owner,

was wounded. The shooting followed an armed robbery in the men ’ s rest room of the Denny’s. Yolanda Brown, Stanley Simon, Charles Reynolds, Jarrell Kelly and Nic h olas Diogenes Valerio, associates or members of the Rollin 20’s criminal street gang, were
pr osecuted for robbery, murder, attempted murder, and street terrorism.

Valerio and Kelly (defendants) were convicted by a jury of first degree murder, premeditated attempted murder, two counts of robbery and active participation in a criminal street gang

. 1 The jury found additional allegations of felony

- murder and gang

related murder special circumstances, being active participant s in a criminal street gang, vicariously discharg ing firearms and causing great bodily injury and death, and
committ ing all cr imes for the benefit of, at the direction of, or in association with the Rollin 20’s criminal street gang. The trial court sentenced both defendants to life without the possibility of parole (LWOP) , plus indeterminate life terms of 20 or 25 years for the
gun use. Defendants challenge the sufficiency of the evidence to prove the special circumstances findings. They also claim the trial court committed several instructional errors, erroneously denied their new trial motion based on newly discovered evide nce, and made several sentencing errors.

We conclude sufficient evidence support s the felony

- murder special

circumstance finding as to both defendants. However, t he Attorney General concedes

1 Brown, Simon and Reynolds were separately tried and convicted. ( People v. Brown (Aug. 28, 2013, G046404) [nonpub. opn.] rev iew denied Dec. 13, 2013; People v. Simon (Aug. 28, 2013, G045927 ) [nonpub. opn.] review denied Dec. 12, 2013; People v. Reynolds (Sept. 5, 2013, G046121) [nonpub. opn.] review denied Dec. 12, 2013.)3

and we agree, as to Valerio the gang

- related murder special c ircumstance must be
reversed for insufficien t evidence

. In all other respects, Valerio’s convictions are
affirmed. Nevertheless , with respect to Valerio, w e conclude the trial court should be permitted to c onsider the constitutionally of his LWOP sentenc e in light of his relatively minor criminal record, youth, and subordinate role during the robberies.

T he parties all agree the trial court made several sentencing errors as set forth below

. As to Kelly, the judgment is modified to address those senten cing errors,
and affirmed as modified. As to Valerio, if the trial court d etermines on remand his
current sentence is constitutional, his sentence must also be modified.
FACTS
1 . Background

On the night of March 16, 2006, Dwayne Washington, Armand J ones, Giovanni Boyd, and Brent Hurd went to the Boogie n ightclub in Anaheim. Jones, Washington, and Boyd were wearing gold chains and diamond stud earrings. Jones also had an expensive watch, and Washington was wearing some popular and expensive
shoes. They were celebrating the fact Jones had just finished working in a movie entitled, Freedom Writers . They were not members of a criminal street gang, nor were they armed. On the same night , another group of people met at the Boogie nightclub. Ebony Ag uilar, Damon Hill and Kalup Hartley drove to the Boogie in Hill’s Camaro

. Once there, they joined Kelly, Brown and Reynolds. Hill, Kelly, Brown and Reynolds
were either members or associates of the Rollin 20’s criminal street gang, and at least two
membe rs of this group carried guns

.

After the Boogie nightclub closed , both groups ended up at a nearby Denny’s. The restaurant was crowded so Jones and his friends paid the Denny’s manager $20 to get seated ahead of a number of other people. A group of wo men complained, and4

the guys invited them to join them at their table. Ronnell Spencer, the owner of a clothing store Jones frequented, also sat down with them.

After some period of time, Washington and Boyd decided to go to the

restroom. Brown , Kelly , Reynolds, Simon, Hill , and Valerio followed them into the
restroom a few minutes later

. Hill or Kelly had a .357

- or .38

- caliber revolver, and Reynolds and Simon had a .357

- or .38

- caliber revolver s

.

Brown and another man approached Washington and sa id, “Give me you r chain, cuz. Give me all your stuff.” A third male , Simon, pointed a gun in Washington ’s
face. Washington looked around, and he saw and recognized Kelly

. Washington said, “I know you

. . . you gonna let your boys do this to me?” Simon asked Kelly, “You know
this dude , cuz?” Kelly , who Washington testified was unarmed, said, “no.” Brown and
an unidentified man went through Washington’s pockets, and took his cell phone, the gold chain from around his neck, and his shoes while Simon poi nted a gun at Washington’s head and threatened to shoot.

Brown left the restroom, while three men , including Valerio, forced their way into Boyd ’s stall just a s Boyd opened the door

. Valerio asked Boyd w here he was from. Boyd understood this to be a g ang challenge, and he replied, “No, no, I don’t bang.” Valerio demanded Boyd give him “all [his] shit .” Boyd took off his shoes and
necklace and handed them to Valerio

. Valerio walked out of the stall as Hill came in. Hill pointed a silver semiautomati c gun at Boyd and told him to empty his pockets. Hill took Boyd’s car keys, cash, and cell phone. Boyd also said he heard someone say, “This is 20’s,” during the robbery, and he knew there was a Long Beach criminal street gang known as the Rollin 20’s.

Brown quickly returned to the restroom and said someone else “with
chains ” on was coming. She walked back out and Jones walked in. As Jones opened the door, he saw Washington with his hands up and asked what was happening. Reynolds pointed a gun at Jo nes and said, “give me your chains, cuz.” Jones refused. He hit5

Reynolds and a brief scuffle ensued just before everyone ran out of the restroom. The robbers headed outside the Denny’s with Jones hot on their trail.

Washington tried to warn Jones abo ut the guns, but he could not catch him. Spencer jumped up from his table, ran through the Denny’s entrance, and then outside
after Jones. Spencer produced a gun from somewhere, raised it over his head, pointed it in the general direction of Jones’s atta ckers, and fired several shots. Jones’s attackers returned fire, and Washington saw Jones stumble back through the Denny’s front door. Jones asked his friend for help and then fell to the floor. Washington said Jones coughed up some blood and died. Lat er, everyone learned that someone had shot Spencer in the
head during the gun battle

.

Investigating officers collected several bullets, bullet fragments, and cartridge casings from the Denny’s parking lot. The parties stipulated the bullets, bullet
fra gments, and cartridge casings came from four different guns. The evidence indicated Spencer fired a Glock .45

- caliber handgun several times, Jones had been killed with a one of two .357

- or .38

- caliber handguns , and another person filed a single nine

- mill imeter cartridge. The nine

- millimeter gun turned up about two weeks after the shooting

. It was recovered by the Torrance Police Department during an investigation into a nother shooting incident

. As the police later discovered , during this gun battle, Ke lly was shot
and Hill was present at the scene

. 2 . Defendants’ Statements

In May 2010, Valerio submitted to police question in g after advisement of
his Miranda rights. 2 He admitted having “LB” and “East Side Long Beach” tattoos. He denied belonging to any criminal street gang, including Rollin 20’s, but he admitted he had family in Rollin 20’s. Valerio claimed he had once gone to Anaheim with his sister.
He said t hey went to a club and he got drunk. They also stopped at a restaurant, perhaps

2 Miranda v
. Arizona (1966) 384 U.S. 4366

a Denny ’s, to use to the restroom . Valerio said that when he walked out of the restroom , he heard gunshots and ran outside to catch a ride home with his sister . He admitted seeing Brown , his cousin, at the club, but he also said, “I didn’t kill nobody.”

Kell y also submitted to a police interview. At first, Kelly denied ever having been to the Boogie nightclub, denied participat ing in the robbery , and claimed to have been working on the night of the shootings. He also denied being a Rollin 20’s gang member , although he admitted claiming the gang in his youth

.

Later in the interview, Kelly admitted going to the Denny ’ s

. He said he
went into the restroom and heard someone say “20’s” and “Insane

. ” When he came out
of the restroom , Kelly said he saw a group of guys beating someone else. He did not know who they were, and he left the Denny’s to sit in a car with some girls. While they were sitting in the car, Kelly heard gunshots and saw a heavyset guy come out of the Denny ’ s with a gun in his hand. Kelly d enied knowing Hill and denied having a gun.
3 . Hill’s Testimony

Hill testified in exchange for potential “ consideration” in his own case. He admitted associating with the Rollin 20’s. He grew up near Brown and her cousin, Kelly

. Hill claimed Brown a nd Valerio were Rollin 20’s associate s while Reynolds, Simon, Hartley, and Kelly were Rollin 20’s members.

Hill testified he and four or five carloads of people from Long Beach decided to go to the Boogie on the night Jones was killed. After the nightc lub closed, Brown, Hill, Simon, Kelly, Reynolds, Valerio, and Calvin Thomas, all members or associates of the Rollin 20’s, decided to go to Denny’s . They all went inside the men’s

restroom. Hill said Simon had a revolver , Reynolds had a chrome .357

- calib er gun, and Kelly had a nine

- millimeter semiautomatic

.

According to Hill, Simon pointed a gun at Washington’s face, while Brown, Reynolds, and Kelly took his property. He saw Brown with Washington’s gold chain and cell phone. Valerio and Thomas were i n the restroom stall with Boyd. Hill7

said one of the victims recognized Kelly and said something. He also remembered hearing Reynolds yell, “20’s.”

Hill claimed he walked out of the restroom when Jones walked in. He heard Jones ask, “What the hell is going on?” When Reynolds demanded Jones’s gold chain, Jones refused. Jones hit Reynolds after Reynolds forcibly removed the gold chain
from around his neck.

When Hill got to the parking lot, he saw Spencer come out of the

res taurant, and heard him ye ll, “You a ’ll robbed my homeboys” while waving a gun in the air. Hill thought Spencer was shooting at him because he had been in volved in the robbery , but he did not actually see where Spencer aimed his gun. Hill hid between two
cars as several shots wer e fired from various locations. When Jones came outside, Hill saw Reynolds fire his .357

- handgun and Kelly his nine

- millimeter at him , but Hill testified he saw Reynolds sho o t Jones

. Jones grabbed his chest and stumbled back inside the Denny’s and died.

On ce the shooting stopped, Hill, Simon, and Kelly fled in the same car. According to Hill , Simon looked “all shocked and traumatized.” He further testified that Simon said, “I domed that nigga.” Hill understood Simon to mean he had shot someone
in th e head. In fact, Spencer had been shot in the head. The bullet entered his head
above his left ear , traveled under the skin along the skull, and exited through the back of Spencer’s head.

Hill also testified that during the trial he, Kelly and Valerio had been put into adjacent holding cells. Kelly insisted on communicat ing with Hill despite Hill’s attempts to ignore him. Hill testified Kelly used hand signs to threaten him, and verbally threatened him. According to Hill, Kelly hand signed, “ Don’t do it. That ain’t true. I thought we was boys. I thought you was my boy. They don’t got nothing on me. The case rests on you. The ball is in your court,” and “Hey, they snitching on you, too, so why are you doing this?” Hill also testified Kelly ver bally asked him about his sister and8

then said , “Man, you see what happened to your sister. You don’t want this kind of shit to keep happening, do you?” Hill’s sister had died prior to Hill testifying at another,
related trial. Kelly also told Hill that he knew where Hill’s grandmother lived. The jury saw the holding cell surveillance tape , but the tape did not have audio.
4 . Gang Expert Testimony

Long Beach Police Detective Sean Magee testified as the prosecution’s gang expert. Magee stated the Rol lin 20’s gang was formed between 1978 and 1981. The gang claims an area of east Long Beach as its territory. The members identify with the colors black and yellow or gold, and often wear clothing with the Pittsburgh Steelers or Pirates logo.

As of Mar ch 17, 2006, the gang had up to 500 active members, and their primary activities were the commission of murders, robberies, assaults with deadly weapons, and the illegal distribution of narcotics. Magee testified about two crimes committed by other Rollin 20’s members, Anthony Wayne Clarke and Tracy Vaughn Paul. Clarke committed murder and attempted murder in December 2005, and Paul had been convicted of murder, possession of a firearm by a felon, and street terrorism for a separate incident in December 2 005.

In Magee’s expert opinion, Brown, Reynolds, Simon, Valerio, Hill, and Kelly were active participants in the Rollin 20’s on March 17, 2006, and the instant crimes were committed for the benefit of, at the direction of, or in association with the
gan g. DISCUSSION
1 . Sufficiency of the Evidence

a. Introduction Defendants challenge the sufficiency of the evidence to prove both special

circumstance findings

. For the gang

- related murder special circumstances, defendants assert the prosecution fail ed to prove they had the intent to kill Jones as required under9

Penal Code, section 190.2, subdivision (a)(22) 3 ( enhanced penalty for defendant who intentionally kill s while an active participant in a criminal street gang and to further the
activities of t he gang )

. The Attorney General concedes the issue as to Valerio by acknowledging the paucity of evidence Valerio, an admitted Rollin 20’s gang member
who actively participated in the robberies, had any role in the shooting. We agree with
this concession. However, we conclude substantial evidence supports the gang

- related murder special circumstance for Kelly, and the robbery

- murder special circumstance for
both defendants.

b. Standard of Review “In addressing a challenge to the sufficiency of the evid ence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence

— evidence that is reasonable, credible and of solid value

— such that a reasonab le trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” ( People v. Kra ft (2000) 23 Cal.4th 978, 1053.)

c
. Felony

- Murder S pecial

- C ircumstance Evidence Pointing to Tison v. Arizona (1987) 481 U.S. 137 ( Tison ), defendants assert the evidence is insufficient to prove they were “ ‘ major participant s ’ ” in the robberies, or
that they acted with “ ‘ reckless indifference to human life

. ’ ” They assert the prosecution failed to prove they either planned to kill Jones and Spencer , or that they actively participated in a violent felony. We disagree.

Tison , supra , 481 U.S. 137, concern ed the requirements of the Eighth Amendment to the United States Constitution for the felony

- murder defendant who was

3 All furt her statutory references are to the Penal Code.10

not the actual killer. The Supreme Court had previously addressed that issue in Enmund
v. Florida (1982) 458 U.S. 782 ( Enmund )

.

In Enmu nd , the defendant ’ s accomplices killed two people during an armed robbery at a farmhouse, while the defendant waited nearby in the getaway car. The
d efendant was convicted of first degree murder and sentenced to death. The United States Supreme Court rev ersed, stating the death penalty may not be imposed for a defendant “who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or
that lethal force will be employed.” ( Enmund , supra , 458 U.S. at p. 797.) The c ourt stressed the importance of individual culpability under the Eighth Amendment , and then
concluded the non

- killer defendant did not harbor the intent to kill, and therefore his culpability could not be equated with that of the actual killers. ( Enmund , a t p. 798.)

In Tison, the Supreme C ourt held the Eighth Amendment does not preclude imposition of the death penalty on a defendant who neither killed nor intended to kill during a felony mur der, if the defendant was an active participant in the felony and acted
with reckless disregard for human life. ( Tison , supra , 481 U.S. at p. 158.) The
defendants in Tison were eligible for the death penalty because they brought guns into a prison to hel p their father, a convicted murderer, escape; they assisted their father and his former cellmate in committing a carjacking that included kidnapping four victims; and they stood nearby while their father and the cellmate killed the four victims.

The Sup reme Court summarized the case ’ s unusual and horrific facts, concluding the defendants must have “subjectively appreciated that their acts were likely to result in the taking of innocent life.” ( Tison , supra , 481 U.S. at p. 152.) Tison expressly held “th at the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judg ment when that conduct causes its natural, though also not inevitable, lethal result.”11

( Id. at pp. 157

- 158.) In short, t he Supreme Court found the defendants eligible for the death penalty based on evidence of “major participation in the felony committed , combined with reckless indifference to human life

. . . .” ( Id. at p. 158, fn. omitted.)

Here, Hill and Washington testified Kelly actively participated in the
robber ies . And, while Washington and Boyd did not see Kelly with a gun in the restroom, Hil l testified Kelly possessed and exhibited a nine

- millimeter gun during the robbery and shooting

. Hill also testified Kelly fired the nine

- millimeter in Jones’ s general direction during the gun batt l e. This act alone is sufficient to create a strong infer ence of the intent to kill . (See People v. Smith (2005) 37 Cal.4th 733, 741; People v. Lashley (1991) 1 Cal.App.4th 938, 945.) Washington identified Kelly and asked for consideration, but Kelly denied knowing Washington and did nothing to stop his
confed erates. This evidence also tends to prove Kelly was an active participant in the
robber ies . Valerio, too, was a n active participant in the robberies. He confronted Boyd in the restroom stall, asked Boyd’s gang affiliation, and demanded Boyd turn over al l his possessions. Therefore, s ubstantial evidence supports a finding Valerio and Kelly were
active participants in the robber ies

.

In addition, t he fact Kelly and Valerio participated in gang

- related armed
robber ies establishes their reckless indifferenc e to human life. The “reckless indifference” element can be proved solely by the circumstances of the current offense. (See People v. Bustos (1994) 23 Cal.App.4th 1747, 1754

- 1755 [defendant knew accomplice had a knife, defendant saw accomplice stab victi m without trying to intervene
and then fled with co

- perpetrators and robbery loot, leaving victim to die]; People v.
Mora (1995) 39 Cal.App.4th 607, 617 [defendant who helped plan armed robbery at drug
dealer ’ s house “had to be aware of the risk of resista nce to such an armed invasion of the home and the extreme likelihood death could result”]; People v. Hodgson (2003) 111 Cal.App.4th 566, 580 [defendant “had to be aware use of a gun to effect the robbery presented a grave risk of death,” but “instead of co ming to the victim ’ s aid after the first12

shot, he instead chose to assist [actual killer] in accomplishing the robbery”].) The robbery and shooting demonstrate a cold indifference to other people’s live s and property. Consequently, we conclude substantia l evidence supports the jury’s finding on
the felony

- murder special circumstance as to both Kelly and Valerio.

d

. Gang

- Related Murder S pecial

- C ircumstance Evidence
Defendants also challenge the sufficiency of the evidence to prove the criminal street g ang special circumstance finding (§ 190.2, subd. (a)(22))

. In order to sustain a true finding, the prosecution must prove beyond a reasonable doubt defendants, while active participants in a criminal street gang, either committed or aided and abetted

ano ther person to commit murder in the first degree, with the intent to kill and to further the activities of his gang. ( People v. Mejia (2012) 211 Cal.App.4th 586, 611.) As noted,
the Attorney General concedes the issue as to Valerio

. Thus, the gang

- relat ed murder special

- circumstance finding must be reversed as to him

.

With Kelly, however, Hill testified Kelly and Reynolds fired shots in
Jones’ s general direction. As noted, the act of firing a gun at someone else establishes a strong presumption the def endant has the intent to kill

. (See People v. Smith , supra , 37
Cal.4th at p. 741; People v. Lashley , supra , 1 Cal.App.4th at p. 945.)

Other evidence supports this presumption. Magee and Hill testified Kelly was an active Rollin 20’s gang member

. In a ddition, Magee testified the primary activities of Rollin 20’s includ ed the commission of murder and attempted murder. From
this evidence a reasonable inference can be made that Kelly and his fellow gang members
committed robbery, murder, and attempted mu rder with the inten t to further their gang’s
criminal activities. In sum, substantial evidence supports the jury’s true finding on the
gang

- related murder special circumstance as to Kelly.
2

. Jury In structions

Defendants claim the trial court had a duty to give CALCRIM No. 240, an instruction on causation, because Spencer’s actions constitute an intervening cause of13

Jones’ s death, which cuts off all liability for the crime. They also claim the trial court erred by not giving self

- defense instructions, b y improperly giving an instruction to ignore Hill’s custody status and restraints and an instruction on motive as it applies to the street terrorism charge, and by failing to modify the instruction on the gang

- related
murder special circumstance. None of these contentions has merit.

a
. General Principles
A trial court must instruct on “ general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury ’ s understanding of the case

. [Citations.]” ( People v. Montoya (1994) 7 Cal.4th 1027, 1047 .) In addition, the trial court must instruct upon “ every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the
defendant ’ s theory of the case. [Citations.]” ( Ibid. )

On appeal, “[w] e determine whether a jury instruction correctly states the law under the independent or de novo standard of review. [Citation.] Review of the adequacy of instructions is based on whether the trial court ‘ f ully and fairly instructed on the applicable law. ’ [Citation.] ‘ “ In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a
whole

. . . [and] assume that the jurors are intelligent pe rsons and capable of understanding and correlating all jury instructions which are given. ” [Citation.] ’ [Citation.] ‘ Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation. ’ [Citation.]” ( People v. Ramos (2008) 163 Cal.App.4th 1082, 1088

. ) “ An appellate court can address an incorrect instruction to which no objection was made at trial if the instruction impaired
the defendant ’ s substantial rights. [Citation.]” ( People v. Fuentes (2009) 171 Cal.App.4th 1133, 1138

- 1139 ( Fuentes ).)14 b. C aus ation Instruction Defendants argue Spencer’s allegedly unlawful intervention in the robbery constitutes an independent intervening cause of Jones’ s death that c uts off liability for
Jones’ s murder. They contend Spencer’s intervention triggered the court’s sua sponte duty to instruct the jury with CALCRIM No. 240 on causation . We disagree.

In People v. Cervantes (2001) 26 Cal.4th 860 ( Cervantes ), the California Supreme Court had occasion to discuss causation in the context of a provocative act murder prosecution. ( Id. at p. 866.) The court stated, “ ‘ In general, an “ independent ” intervening cause will absolve a defendant of criminal liability. [Citation.] How ever, in
order to be “ independent ” the intervening cause must be “ unforeseeable

. . . an extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause. ” [Citation.] On the other hand, a “ dependent ” intervening cause will not relieve the defendant of criminal liability. “ A defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause. If an intervening cause is a normal and reasonably foreseeable result of def endant ’ s original act the intervening act is ‘ dependent ’ and not a superseding cause, and will not relieve defendant of liability. [Citation.] ‘ [ ] The consequence need not have been a strong probability; a possible consequence which might reasonably ha ve been contemplated is enough. [ ] The precise consequence need not have been foreseen; it is enough that the defendant should have foreseen the possibility of some harm of the kind which might
result from his act. ’ [Citation.] ” [Citation.]’ [Citatio ns.]” ( Id

. at p. 871

. )

In Cervantes , m embers of different gangs attended the same party. The defendant, a member of the Highland Street gang, shot a member of the Alley Boys gang (Linares) in the arm and chest during a scuffle over a perceived slight to a woman associated with the Alley Boys. ( Cervantes , supra , 26 Cal.4th at pp. 863

- 864.) A melee erupted with several participants yelling gang challenges. ( Ibid. ) A short time later, a group of Alley boys spotted a lone Highland Street gang member (Cab rera) and fired15

several shots, killing him. ( Id. at p. 864.) At trial on charges he killed Cabrera, the defendant testified he did not intend to shoot anyone, and that he was driving away from the party when he heard several shots being fired. ( Ibid. )

The California Supreme Court reversed the defendant’s conviction, observing, “Defendant was not the initial aggressor in the incident that gave rise to the provocative act. There was no direct evidence that Cabrera’s unidentified murderers
were even pre sent at the scene of the provocative act, i.e., in a position to actually witness defendant shoot Linares. Defendant himself was not present at the scene where Cabrera was fatally gunned down; the only evidence introduced on the point suggests he was
alre ady running away from the party or speeding off in his car when the victim was murdered.” ( Cervantes , supra , 26 Cal.4th at p. 872, fns. omitted.) The court observed, Cabrera’s murderers “‘intend[ed] to exploit the situation created by [defendant], but [w ere] not acting in concert with him,’ a circumstance that is ‘normally held to relieve the first actor [defendant] of criminal responsibility.’ [Citations.]” ( Id. at p. 874.)

Here, unlike Cervantes , Spencer took it upon himself to protect his friends
du ring the course of a robbery, but there is no evidence he sought to exploit the situation caused by Kelly, Valerio, and their fellow gang members. In our view, Spencer stands in the shoes of a victim of the robbery or a responding police officer, and shou ld not be considered an intervening or superseding cause cutting off Kelly or Valerio’s liability for Jones’s death. (See Cervantes , supra , 26 Cal.4th at p. 868; see also People v. Gilbert (1965) 63 Cal.2d 690, 704

- 705 [police officer kills accomplice] re versed on grounds not
relevant here sub nom

. Gilbert v. California (1967) 388 U.S. 263.)

Under established principles of causation, “[t] he defendant remains criminally liable if either the possible consequence might reasonably have been contemplated or th e defendant should have foreseen the possibility of harm of the kind
that could result from his act. [Citation.]” ( People v. Crew (2003) 31 Cal.4th 822, 847.) A shooting death during a gang

- related armed robbery like this is a reasonably16

foreseeable ris k, not an extraordinary or abnormal occurrence. By way of contrast, if an airplane had fallen from the sky and killed Jones, defendants’ argument would have merit. But here we see no reason for absolution simply because the victim’s friend
intervened as opposed to one of the victims himself or a responding peace officer.

The evidence shows defendants participated in two armed robberies in which more than one perpetrator possessed a gun. The crimes took place in a busy restaurant. Although a bystander’s violent intervention was not inevitable, Spencer’s involvement in the robbery is hardly the type of occurrence so remote and unusual that it would cut off the criminal liability of one of the robbery participants. “[I]t is impossible
to see how it could reasonably be concluded that the death[] of [Jones] in such circumstances could have been an unnatural or improbable consequence of appellants’ admitted acts.” ( People v. Anderson (1991) 233 Cal.App.3d 1646, 1662.)

Defendants further argue Spencer’s acts were not legally justifiable, and
th us t hey cannot be liable for the robbers’ reaction to Spencer’s independent, illegal, and lethal conduct. They have cited no authority for the proposition an intervening act cuts off liability unless the intervening ac t is both foreseeable and legally justifiable. Furthermore, we are not prepared to find that his acts fall outside of section 197’s provision for justifiable homicide when the life of another is threatened, or as a justified act to apprehend those who had just robbed his friend. (See § 197, subds. (1), (4).)

Finally, as Kelly and Valerio concede, the court gave CALCRIM No. 540B, which required the jury to find, among other things, a “logical connection” between the cause of Jones’s death and the robbery, and that the connection between the robbery and murder was more than just their occurrence at the same “time and place.” (See People v. Cavitt (2004) 33 Cal.4th 187, 201 [to satisfy the “complicity aspect” of the felony

- murder rule, a nonkiller is respon sible for a homicide committed by a cofelon when there is “a logical nexus, beyond mere coincidence of time and place, between the felony the parties were committing or attempting to commit and the act resulting in17

death”].) And, as the Attorney General n otes, the trial court also gave CALCRIM Nos. 549 and 730, which informed the jury defendants could be convicted of felony murder only if it determined the act causing Jones’s death and the robberies were part of one continuous transaction. Thus, there was no sua sponte obligation to instruct the jury with
CALCRIM No. 240 on causation

.

c
. S elf

- defense Instruction Defendants argue the trial court erred by not instructi ng the jury on self

defense as it relates to counts 1 and 2. They claim substantial evidence support ed giving

a self

- defense instruction b ased on Spencer’s intervention in robbery

. We are not persuaded. In general, no claim of self

- defense, reasonable or unreasonable, may be made in murder prosecutions based on the felony

- murder rule. ( People v. Di l l o n (1983)
34 Cal.3d 441, 475

- 476.) This is because malice is eliminated as an element in such cases. ( People v. Robertson (2004) 34 Cal.4th 156, 164

- 165, overruled on other grounds
in People v. Chun (2009) 45 Cal.4th 1172, 1201.) “ The pur pose of the felony

- murder rule is to deter even accidental killings in the commission of designated felonies by holding the felon strictly liable for murder. [Citation.] When a burglar kills in the commission of a burglary, he cannot claim self

- defense, for this would be fundamentally inconsistent with the very purpose of the felony

- murder rule. [Citations.]” ( People v.
Loustaunau (1986) 181 Cal.App.3d 163, 170 .)

Defendants acknowledge the general rule, but claim Spencer’s intervention
and use of dead ly force produces a different result here. They admit “the factual scenarios under which ordinary or reasonable self

- defense would apply to a killing that occurs in the course of a felony are extremely rare,” but argue Spencer’s intervention created just such a rare circumstance. They cite no legal authority for this proposition, nor do they cite a single case that chips away at the general rule. F ailure to cite any relevant authority in support of an assertion results in a waiver of the right to appella te18

review of that assertion. ( People v. Stanley (1995) 10 Cal.4th 764, 793 ; People v. Diaz (1983) 140 Cal.App.3d 813, 824.)

Furthermore, as discussed above, Spencer’s intervention does not cutoff defendants’ liability for the crimes. We have concluded Spencer’s action, although unusual, was a reasonably foreseeable risk of an armed robbery and not an extraordinary or abnormal occurrence. Similarly, Spencer’s intervention did not create a situation
where defendants could claim self

- defense in shooting Jones or Spencer. Consequently, the trial court was under no duty to give a self

- defense instruction at this trial.
d

. Custody Status and Restraint Instruction Defendants claim the trial court erred and “undercut the defense” by instructing the jury w ith CALCRIM No. 337

. This instruction told the jury to “completely disregard” the fact Hill was restrained and in custody when he testified. Defendants believe CALCRIM No. 337 precluded the jury from properly assessing Hill’s credibility. Not so

.

As no ted, we do not judge instructions in isolation. Rather, we review a claim of instructional error in the context of the whole charge to the jury. ( Fuentes , supra , 171 Cal.App.4th at pp. 1138

- 1139 .) Here, the trial court instructed the jury with
CALCRIM N o. 226. That instruction states the jury alone judges credibility, and it explains that when deciding credibility, the jury is permitted to consider a whole host of
fact ors . The trial court also gave CALCRIM No. 335, which explained how to evaluate

accom plice testimony and specifically told the jury Hill was an accomplice . And, the trial court gave CALCRIM No. 316, which permits the jury to consider prior felony convictions when determining credibility. When considered together, the instructions on
witn ess credibility were legally accurate and factually applicable , including CALCRIM
No. 337 . Thus, it is not reasonably likely the jury applied CALCRIM No. 337 in a way that prevent ed the considerati on of constitutionally relevant evidence. ( Boyde v. Calif ornia (1990) 494 U.S. 370, 380

- 381.)19 e
. Motive and Street Terroris m Instruction
Defendants also contend the trial court erred by giving CALCRIM No. 370, which advises the jury, “The People are not required to prove that the defendant had a
motive to co mmit any of the crimes charged.” They contend CALCRIM No. 370 as applied to the crime of street terrorism amounts to instructing the jury the prosecution need not prove defendants ’ intent. Again w e disagree.

In Fuentes , supra , 171 Cal.App.4th at pages 1 139

- 1140, the appellate court rejected the defendants’ objection to CALCRIM No. 370 as it relates to street terrorism:

“ An intent to further criminal gang activity is no more a ‘ motive ’ in legal terms than is any other specific intent. We do not call a p remeditated murderer ’ s intent to kill a

‘ motive, ’ though his action is motivated by a desire to cause the victim ’ s death. Combined, the instructions here told the jury the prosecution must prove that Fuentes intended to further gang activity but need not show what motivated his wish to do so. This was not ambiguous and there is no reason to think the jury could not understand it. ”

Defendants claim Fuentes is flawed because the appellate court did not discuss and apply cases discussing motive in the con text of the financial gain special circumstance. However, none of the cases cited by defendant s are on point, and the Supreme Court has h e ld the terms “intent” and “motive” are not interchangeable. (See, e.g., People v. Carasi (2008) 44 Cal.4th 1263, 130 8

- 1309; People v. Staten (2000) 24 Cal.4th 434, 461; People v. Edelbacher (1989) 47 Cal.3d 983, 1026

- 1027.) In
defendants ’ view, the motive to gain financially from a murder is no different from an
intent to do so. The problem with defendants ’ analogy is that the Supreme Court repeatedly has rejected it. ( Edelbacher , at p. 1027; People v. Riggs (2008) 44 Cal.4th 248, 314; People v. Crew (2003) 31 Cal.4th 822, 845; People v. Noguera (1992) 4 Cal.4th 599, 637.)

As t he Fuentes court has explained: “If Fue ntes ’ s argument has a superficial attractiveness, it is because of the commonsense concept of a motive. Any20

reason for doing something can rightly be called a motive in common language, including

—

but not limited to

—

reasons that stand behind other reasons. For example, we could say that when A shot B, A was motivated by a wish to kill B, which in turn was motivated by a desire to receive an inheritance, which in turn was motivated by a plan to pay off a debt, which in turn was motivated by a plan to avoid the wrath of a creditor. That is why there is some plausibility in saying the intent to further gang activity is a motive for committing a murder: A wish to kill the victim was a reason for the shooting, and a wish to further gang activity stood behind t hat reason. The jury instructions given here, however, were well adapted to cope with the situation. By listing the various ‘intents ’ the prosecution was required to prove (the intent to kill, the intent to further gang activity), while also saying the p rosecution did not have to prove a motive, the instructions told the jury where to cut off the chain of reasons. This was done without saying anything that would confuse a reasonable juror.” ( Fuentes , supra , 171 Cal.App.4th at p. 1140.)

In short, m otive describes the reason a person decides to commit a crime.
The reason for doing something , however, is different from the required mental state for criminal liability

. ( People v. Hillhouse (2002) 27 Cal.4th 469, 503

- 504.) The jury was instructed here pur suant to CALCRIM No. 1400 on the elements of street terrorism. This
instruction stated the crime required the jury to find defendants were active participants in Rollin 20’s, that they participated in the gang knowing other members of the gang
engage d in criminal activity, and that defendants “willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang.” The trial court’s street terrorism instruction did not use the word “motive” and there is no indication the jury
would h ave u nderstood the term s “motive” and “intent” to be interchangeabl e

. Just as in Fuentes, there was no error here

.21 f . Gang

- Related Murder Special

- Circum stance Instruction Defendants claim the trial court’s instruction on accomplice liability as to
th e gang

- related murder special circumstances did not specify the prosecution’s burden of proving they had the intent to kill. The Attorney General asserts defendants forfeited th is challenge to the jury instructions because it is the defendants’ duty to re quest modification of the instructions, citing People v. Guiuan (1998) 18 Cal.4th 558. However, the Attorney General also concedes the evidence is insufficient to support the jury’s gang

- related murder special

- circumstance finding on Valerio. We address the
issue on the merits , but find Kelly’s argument unavailing

.

Section 190.2, subdivision (a)(22) provides for a sentence of death or life without the possibility of parole for first degree murder when “[t]he defendant intentionally killed the victim whil e the defendant was an active participant in a criminal street gang

. . . and the murder was carried out to further the activities of the criminal street gang.” Subdivision (c) extends liability for first degree murder to “[e]very person,
not the actual k iller, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, request s , or assists any actor in the commission of murder in the first degree

. . . .” (See also People v. Mejia , supra , 211 Cal.App.4th at p. 611.)

The trial court gave CALCRIM No. 736, which told the jury the prosecution had to prove beyond a reasonable doubt “defendant intentionally killed Armond Jones” with respect to the gang murder special circumstance. The same language is in the verdict form

. Kelly assume s the jury would disregard the language of
the instruction and verdict form to find him guilt y without necessarily concluding he had the intent to kill Jones. Nothing in the record supports this ass umption , and it seems unlikely the jury interpreted the ins truction in the way Kelly believe s . As the Attorney General notes, the trial court properly instructed the jury on aiding and abetting and coconspirator liability . Viewing the instructions as a whole, we conclude there is no reasonable probability the ju ry misunderstood the instruction on accomplice liability as to22

the gang

- related murder special circumstances to permit a true finding without finding Kelly had the required intent to kill. ( Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4.)
3. New Tria l Motion s

a. Introduction
Defendant s challenge the trial court ’ s denial of their motion for new trial based on newly discovered evidence. (§ 1181, subd. (8).) 4 Defendant s contend the trial

court ’s ruling violated their due process right to a fundament ally fair trial under the Fifth
and Fourteenth Amendments of the United States Constitution and a rticle I of the
California Constitution.

b. Legal Principles “In ruling on a motion for new trial based on newly discovered evidence,
the trial court cons iders the following factors: ‘“1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the
par ty could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits.”’ [Citations.]” ( People v. Delgado (1993) 5 Cal.4th 312, 328; see also People v. Soojian (2010) 190 Cal.App.4th 491, 512.)

“‘“The determination of a motion for a new trial rests so completely within the court’ s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.”’ [Citati ons.] ‘“[I]n determining whether there has been a proper exercise of discretion on such motion, each case must be judged from its own factual background.’” [Citation].” ( People v. Delgado , supra , 5

4 “When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only: [¶]

. . . [¶] (8) When new evidence is disc overed material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial

. . . . ” (§ 1181, subd. (8).)23

Cal.4th at p. 328.) A new trial motion based on newly discovered evidence is looked upon with disfavor. We will only disturb a trial court ’ s denial of such a motion if there is a clear showing of a manifest and unmistakable abuse of discretion. ( People v.
Musselwhite (1998) 17 Cal.4th 1216, 1251

- 1252; Delga do , supra , 5 Cal.4th at p. 328 .)

c. Factual Background After the prosecutor made her closing argument, Kelly’s attorney told the court he had just learned about a witness who would testify Kelly never carried a gun and
that Hill ha d a reputation for alw ays carrying a nine

- millimeter handgun. According to counsel, Omar Houston , one of Kelly’s best friends, had only recently come forward with
this information

. Defense counsel moved to reopen his case, but the trial court found the request untimely and de nied the motion

.

In July 2012, Kelly filed a new trial motion and Valerio orally joined in it. Kelly alleg ed two new witnesses had recently come forward, Shamarra Fr a zier, Hill’s former girlfriend, and Valerio’s sister, Shaw n drika Brown . Kelly claimed Houston had called Kelly’s parents and told them Frazier wanted to come forward and testify Hill always carrie d a nine

- millimeter handgun. Frazier also claimed to have seen bullet holes in the side of Hill’s Camaro and shell casings on the floor of his c ar the day after the shooting.
Shaw n drika Brown also let it be kno w n she was now “prepared to talk about what she saw at Denny’s.” Apparently, Houston, Frazier and Shaw n drika Brown thought Hill got too good a deal and justice had not been served

.

Ke lly asserted Hill’s testimony alone placed a gun in his hands, and Houston, Shaw n drika Brown , and Frazier’s statements had considerable impeachment
value with respect to Hill’s testimony

. The trial court disagreed.

In denying defendant s’ new trial motion , the trial court stated, “So as I assess the new evidence, I cannot find that it is new evidence truly in that the witnesses were known. I expressed my reservation. And again, I’m not suggesting counsel didn’t24

do what they needed to do. [Valerio’s coun sel] said he spoke to the one witness himself twice and she wasn’t interested in cooperating even though her brother was on trial. And suddenly after trial, after conviction , after four trials, in fact, and five convictions , she
crawls out of the woodwork with some new information. [¶]

. . . [¶] So I don’t think any of this new evidence is truly new evidence in the sense that the law considers new
evidence

. . . although I do believe it’s material, I think it’s largely cumulative for the
reasons I’ve now expressed several times. ”

Having considered the record as a whole, we agree with the trial court

. Houston, Frazier and Shaw n drika Brown had close ties to defendants, and defendants knew their whereabouts many years before trial began. Thus, Houston, S haw n drika
Brown and Frazier were not newly discovered witnesses.

Moreover, their testimony was cumulative of other challenges to Hill’s credibility , including his impeachment with a prior felony conviction , which the defense properly exploited at trial

. ( People v. Delgado , supra , 5 Cal.4th at p. 329 [“ ‘ the trial court may consider the credibility as well as materiality of the evidence in its determination [of] whether introduction of the evidence in a new trial would render a different result reasonably probable ’ ”].) Furthermore , the jury instructions identified Hill as an accomplice to the crimes, and the trial court gave special instructions to the jury
about the special dilemma accomplice testimony presents

.

Finally , even if Houston, Frazier, and Shaw n drika Brown’s testimony could
be considered “new evidence ” for purposes of section 1181, subdivision (8), defendant s ha ve nonetheless failed to demonstrate there is a reasonable probability their testimony
would have led to a different result. Under these circumstances, the trial court acted well within the scope of its broad discretion in finding the proffered evidence was not new and

was cumulative of other evidence

. (See People v. Delgado , supra , 5 Cal.4th at p. 328.) Accordingly, the trial court ’ s decision to deny defendant s’ new trial motion must be
affirmed.25

4. Cumulative Error

Defendants contend a combination of errors rendered their trial fundamentally unfair. We have individually considered each claim of error i n this four

week trial, wh ich generated over 1,600 pages of reporter’s transcript . T he few errors that occurred were harmless under any standard, whether considered individually or collectively. We find no deprivation of rights guaranteed under either the state or federal
Constit utions. Defendants were “entitled to a fair trial, not a perfect one. [Citation.]” ( People v. Box (2000) 23 Cal.4th 1153, 1214, overruled on other grounds in People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10.) They received a fair trial.
5

. Sentenc ing

a. Eighth Amendment Claim At sentencing, the trial court expressed an interest in reducing Valerio’s LWOP sentence. However, the trial court felt constrained by section 1385.1’s prohibition against striking “any special circumstance which is

. . . found by a jury.” (See
also People v. Mendoza (2011) 52 Cal.4th 1056, 1075 .) In musing about the situation, the trial court indicated a willingness to take “additional evidence, even testimony, concerning the propriety of me possibly giving [Valerio] a sentence other than life without possibility of parole

. . . .”

Valerio did not assert an Eighth Amendment claim below , but raises it now. The Attorney General claims we need not remand for a new sentencing hearing because an application of constitutio nal principles outlined in People v. Dillon , supra , 34 Cal.3d at page 479 would yield no different result. We disagree.

The court had access to the probation report, which mentioned Valerio’s relative youth at the time of the crime ( 19 years old), minima l criminal record, and comparatively minor role in the robberies suggested leniency could be appropriate in his case. The court was familiar with the facts of the case, which demonstrated Valerio ’s nonleadership role in the crimes and proved he neither pe rsonally possessed nor used a26

firearm. The trial court also stated if the matter is remanded for a new sentencing hearing
there were other facts the court would be willing to consider. We agree these facts could be important to the resolution of the cons titutional claim. Therefore, we remand for a new sentencing hearing to allow the trial court to consider the constitutionali ty of Valerio’s sentence and exerci se its sentencing discretion in the first instance.

b. Other Sentencing Errors The parties agr ee the trial court made certain sentencing errors and the judgments must be modified. With respect to Kelly, the sentence is modified as follows: (1) count 5 is stayed under section 654 because the murder , attempted murder and
robberies were the basis for the felonious criminal conduct promoted, assisted or furthered by Kelly ( People v. Mesa (2012) 54 Cal.4th 191, 197

- 198); (2) only one LWOP term may be imposed on count 1 (§ 190.2, subd. (a)); and, (3) only one section 12022.53 enhancement penalty may be i mposed on counts 1 and 2 (§ 12022.53, subd. (f)). As modified, Kelly’s judgment is affirmed.

For Valerio, while the gang

- related murder special circumstance is stricken for insufficiency of the evidence, all other convictions and findings are affirmed.
Because his sentence is being reversed and the matter remanded, his sentence may be
modified to meet const itutional muster. If not, the sentence must be modified as follows: (1) count 5 must be stayed under section 654 because the murder , attempted mur der and robberies were the basis for the felonious criminal conduct promoted, assisted or furthered by Valerio ( People v. Mesa , supra , 54 Cal.4th at pp. 197

- 198); (2) only one LWOP term may be imposed on count 1 (§ 190.2, subd. (a)); (3) only one section
1 2022.53 enhancement penalty may be imposed on counts 1 and 2 (§ 12022.53, subd. (f)); and, (4) the sentence enhancements under section 186.22, subd. (b) must be stayed because there is no evidence Valerio personally used or discharged a firearm ( People v. Valenzuela (2011) 199 Cal.App.4th 1214, 1238).27 DISPOSITION With respect to Valerio, the gang

- related murder special circumstance is
reversed . As modified, Valerio’s judgment of conviction is affirmed , the sentence is
reversed , and the matter remanded for a new sentencing hearing to permit the trial court to consider the constitutionality of Valerio’s sentence

. If Valerio’s sentence is not otherwise modified following th at sentencing hearing, the n the current sentence shall be
modified as noted above a nd the abstract of judgment shall be corrected.

For Kelly, the sentence is modified as set for above. As modified, the judgment against Kelly is affirmed.

The clerk of the superior court is directed to correct the abstract s of judgment and forward c op ies to the Department of Corrections and Rehabilitat i on

.

THOMPSON, J.

WE CONCUR:

ARONSON, ACTING P. J.

IKOLA, J.