THE PEOPLE, Plaintiff and Respondent, v. LAM THANH NGUYEN, Defendant and Appellant, 61 Cal. 4th 1015

Opinion LIU, J. On January 28, 1999, defendant Lam Thanh Nguyen was sentenced to death for murdering Sang Due Nguyen and Tuan Pham. This appeal is automatic. (Pen. Code, § 1239, subd. (b); further undesignated statutory references are to this code.) We strike the sentence enhancements under

section 186.22, subdivision (b)(1) from the sentences imposed for actively participating in a gang in counts 3, 5, 7, 10, and 14. In all other respects, including the death sentence, we affirm the judgment. I.

Facts and Background Defendant was charged in an amended information filed on May 4, 1998, in Orange County Superior Court with three counts of murder (§ 187, subd. (a)) with the special circumstance of multiple murder (§ 190.2, subd. (a)(3)), two counts of conspiracy to commit murder (§ 182, subd. (a)(1)), three counts of attempted premeditated murder (§§ 664, subd. (a), 187, subd. (a)), six counts of participating in a criminal street gang (§ 186.22, subd. (a)), possession of a controlled substance (Health & Saf. Code, § 11350), and possession for sale of cocaine base (Health & Saf. Code, § 11351.5).

The amended information further alleged that defendant had inflicted great bodily injury on three of the surviving victims (Pen. Code, former § 12022.7), had personally used a firearm in committing nearly all of the charged crimes (former § 12022.5, subd. (a)), and was vicariously armed with a firearm in committing one count of attempted murder (former § 12022, subd. (a)(1)).

The amended information alleged that all of the charged offenses were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) The trial court dismissed both counts of conspiracy to commit murder: one count when the prosecution rested its case and the second count during the defense case. The drug possession charges were severed for purposes of trial. Defendant later pleaded guilty to possession of a controlled substance, and the other drug charge was dismissed.

Following the guilt phase of the trial, the jury on July 6, 1998, found defendant not guilty of one count of murder and the related count of participating in a criminal street gang. The jury convicted defendant of the remaining charges and found true the remaining allegations. The jury thus convicted defendant of murdering Sang Due Nguyen and Tuan Pham, and found true the multiple-murder special-circumstance allegation. Following the penalty phase of the trial, defendant was sentenced to death for the murders of Sang Due Nguyen and Tuan Pham.

On the other charges, the trial court imposed but stayed three consecutive life sentences plus a determinate sentence of 15 years. A. Guilt Phase Six members of Vietnamese street gangs in Orange County, mostly members of the Cheap Boys, were shot during six separate incidents in 1994 and 1995; three of them died. Defendant is a member of a rival gang called the Nip Family. The prosecution sought to prove that defendant aided and abetted the first shooting and personally committed the other five. The defense contended that the Cheap Boys gang had framed him in order to remove him from the streets.

He denied having been present at the first five shootings. Defendant admitted that he had been present at the sixth shooting, but denied that he had participated and claimed that if he did participate, the shooting had been in self-defense. 1. July 21, 1994, shooting of Tony Nguyen In the afternoon of July 21, 1994, Tony Nguyen was giving some members of the Cheap Boys gang a ride home. Vinh Kevin Lac was in the front passenger seat of the car Tony was driving. Tinh Dam and his girlfriend, Chynna Yu, were in the backseat. Vu was a member of the Southside Scissors, a female Asian street gang.

Several more members of the Cheap Boys gang were following in another car. Tony stopped his car at a stoplight on Garden Grove Boulevard, and another car stopped beside him to his left.

He recognized the girl driving the car, later identified as My Tran, and saw a male, later identified as Nghia Phan, in the front passenger seat but could not see the people in the back because the windows “were kind of cloudy or dirty.” Tony smiled at the girl driving the other car and then turned away because he “didn’t want to stare.” When the traffic signal turned green, he heard gunshots and “fell to the seat.” Phan had fired four or five shots. Tony was shot in the neck and was paralyzed from the neck down.

At the scene of the crime, Lac, who had been in the front passenger seat of Tony’s car, told the police that he could not identify anyone in the other car, but he thought they were members of the Nip Family because they were “enemies” of the Cheap Boys. A few days later, Lac realized that the male sitting in the backseat behind the shooter was defendant, who lived downstairs from him. Lac had “bumped into” defendant five or six times prior to the shooting.

Some days after the shooting, defendant came to Lac’s apartment and asked, “What’s up with the cops?” Lac assured defendant that he had said nothing to the police. At trial, Lac identified defendant in court as the person in the other car who sat in the backseat behind the shooter. Lac also testified that just prior to the incident, the shooter’s car passed Tony’s car, and as it did so, defendant stared back at the occupants of Tony’s car. The shooter’s car went into a restaurant parking lot, waited for Tony’s car to pass, and then pulled out to meet it at the stoplight on Garden Grove Boulevard. 2.

November 24, 1994, shooting of Huy Nguyen On Thanksgiving, November 24, 1994, around 8:30 p.m., Huy Nguyen was shot multiple times, first outside and then inside a video game arcade called Mission Control in Garden Grove. He testified that he was standing outside the arcade when a “guy” approached him and asked if he was in the Tiny Rascals Gang. Huy said he only had friends in the gang.

He added that the “guy” “thought that I belonged to T.R. [Tiny Rascals Gang], and then he hit me on the face one time.” Huy claimed that he remembered little of what happened after he was punched, but he testified that he heard gunshots and ran into Mission Control. He saw blood all over his body, found he was unable to move, and then lost consciousness. Huy is now partially paralyzed. He cannot walk but has regained some movement of his arms. He could not remember much about the shooting and could not identify the person who shot him.

Channthai “Cindy” Pin testified that she had gone outside of Mission Control with two friends to smoke a cigarette. She heard Huy, who was associated with the Tiny Rascals Gang, start to yell at someone in Vietnamese. Pin had seen that person the day before at a motel nearby. He had displayed a gun. Huy approached the person and punched him in the face. The person punched Huy back, and several of Huy’s friends joined the fight. Huy pushed the person up against a pillar. The person fell to the ground, and Huy’s friends began kicking him and punching him.

He tried to get up and then pulled a gun out of his waistband and shot Huy in the stomach. Huy stumbled into Mission Control, and the shooter followed him in. Pin then heard more shots fired inside Mission Control. Other witnesses inside Mission Control testified that Huy was shot several times as he lay on the floor. Before trial, Pin had identified defendant as the person who shot Huy, but she did not identify defendant in court. Although there were many witnesses, few were able to identify the shooter.

Chamroeun Choeun was smoking a cigarette outside Mission Control with her friends Pin and Chris Nguyen when she noticed Huy arguing with someone in Vietnamese. The two men starting fighting, and other people tried to stop the fight. Choeun then heard a gunshot and turned and saw defendant fire a gun twice. She ran. 3. February 5, 1995, murder of Sang Nguyen On February 5, 1995, Cheap Boys gang member Sang Nguyen was shot and killed outside of the Dong Khanh restaurant in Westminster.

Trieu Binh Nguyen, a fellow member of the Cheap Boys, who was visiting from Texas to celebrate the Vietnamese New Year, had gone to dinner at the restaurant with the victim and several other people, including his girlfriend Bich To, Binh Tran, and Linda Vu. Trieu and Tran went outside so Trieu could smoke a cigarette. Vu looked through the front window of the restaurant and saw defendant, whom she recognized as belonging to the Nip Family. She told the victim, “I thought I saw N.F. [Nip Family] outside.” Sang asked where Tran was, and Vu said he was outside smoking. The victim went outside and met defendant.

They shook hands, and defendant “grabbed his head” and shot the victim. Vu grabbed her one-year-old daughter and ducked under the table. Vu later identified defendant in a photographic line up, at the preliminary hearing, and at trial. Trieu saw defendant and two other members of the Nip Family walk quickly toward the restaurant. Defendant was carrying a gun. Sang was leaving the restaurant and approached defendant and his companions. Trieu heard a gunshot and saw Sang grab his stomach and fall to the ground. Defendant then shot the victim in the head and ran away.

Trieu acknowledged he had told the police at the scene of the crime that he had not witnessed the murder because he had been in the bathroom. He explained that in the gang subculture, a person who talks to the police may be beaten or killed. Later, he called the police because he could no longer tolerate that defendant had gotten away with killing his friend. At the scene of the crime, Vu also had told the police that Trieu had been in the bathroom when the crime occurred.

She explained that people in the gang subculture are not supposed to talk to the police, saying that you are “a rat” if you do and rats “sometimes ... get hurt.” Martin Hall was standing by a public telephone outside the restaurant doors when he heard a gunshot and saw the victim fall on his face. The shooter then “stepped over him and held a gun down and then made a comment and shot him again.” Hall could not hear the whole comment but described it as “something-something mother fucker.” The shooter then “just stood up and casually walked down the short steps into the parking lot” and walked away.

Hall failed to identify defendant in a subsequent photo lineup and did not identify defendant as the shooter at trial. 4. March 11, 1995, shooting of Khoi Huynh On March 11, 1995, Cheap Boys member Khoi Huynh was shot outside of the Rack and Cue pool hall in Stanton. Huynh had been playing pool with Huu Tran and other friends. He left and was on his way to his car when he saw “a few guys standing outside” and was shot. He ran and his assailants pursued him, continuing to shoot until someone helped him into a liquor store. He was shot seven times.

At his home 10 days later, Huynh told a sheriff’s department investigator that defendant had shot him. He and defendant had been friends at one time. Huynh told the investigator that he could not testify because he was a gang member. The next day, Huynh picked defendant’s photo out of a photo lineup. Jeremy Lenart was in the Rack and Cue pool hall at about 9:30 p.m. when he heard a gunshot outside, followed by “probably 30 or 40” more shots. It sounded like different weapons were being fired. Lenart saw three different guns being fired outside and another one inside the pool hall.

Lenart saw defendant shoot one victim, who was unarmed, and chase that victim as he ran, firing additional shots. Several other persons also shot at the victim as he ran. Lenart identified defendant in court as the person who shot and chased the victim. David Arnold had just parked his truck in front of a liquor store around the corner from the Rack and Cue when he “heard a bunch of gunshots ring out.” There were “25 to 30” gunshots that seemed to be coming from the pool hall around the corner. He ran toward the liquor store but saw a man run from the vicinity of the pool hall and collapse in the parking lot.

Arnold could see that the collapsed man had been shot and pulled him into the liquor store. Arnold pulled the victim behind the counter and used paper towels to try to stop the bleeding. The victim was unarmed. 5. May 3, 1995, murder of Duy Vu Defendant was found not guilty of the murder of Duy Vu, who was shot and killed at a Laundromat in Westminster on May 3, 1995. 6. May 6, 1995, murder of Tuan Pham On May 6, 1995, Tuan Pham, a member of the Cheap Boys, was murdered at the corner of Brookhurst Street and Westminster Boulevard in Garden Grove.

Shortly before 9:00 p.m. that evening, Robert Wayne Murray and his girlfriend were on their way to dinner. He stopped his van for a red light in the left turn lane on Brookhurst at the intersection with Westminster. Pham, who was driving the car behind him, got out of the vehicle, spun around, got back in the car and backed up quickly, almost colliding with another car. Pham got out of the car again, holding a gun, and approached a white Honda in the lane next to Murray’s van. Defendant sometimes drove a white Honda.

As Pham approached the Honda, Murray saw that the driver of the Honda was holding a gun to his chest. As Pham approached the Honda, the driver of the Honda reached out and fired three shots at him. A passenger in the Honda also opened fire, and Pham fired back. A person standing to the rear of the Honda fired a shotgun at the Honda. As Murray drove away, going the wrong way on Brookhurst Street and driving over the curb into a parking lot, he heard multiple shots and then a blast from a shotgun. As many as 12 shots had been fired. Murray later found two bullet holes in his van.

When the shooting stopped, the white Honda drove slowly from the intersection, swerving from side to side. The rear window had been shot out. Pham lay dead in the intersection; he had been shot twice in the back and once in the head. Police found a “pistol grip shotgun” and a handgun “stashed inside of some of the bushes” nearby.

Murray later picked out defendant’s photograph from a photo lineup as someone who looked “close” to the driver of the white Honda, but Murray said he could not “make any identification.” Murray testified at trial that he did not think he would recognize the driver of the white Honda if he saw him again. 7. Subsequent investigation On May 23, 1995, at 6:48 p.m., Garden Grove Police Officer Mike Smith went to 13401 Amarillo Drive in Westminster. He saw three men enter a silver Ford Escort and drive away. Two of the men later were identified as members of the Nip Family.

When police pulled over the silver Escort, an Asian male in the front passenger seat, who was roughly the same height as defendant, ran away. A police dog located a Colt .380-caliber revolver in some bushes near where the fleeing passenger was last seen. The fact that the police dog reacted to the gun meant that a person had recently held it. Ballistics tests showed that the Colt pistol had fired a bullet recovered from the car Tuan Pham had been driving when he was killed. On that same day, police obtained a warrant and searched the house at 13401 Amarillo Drive.

It was a five-bedroom house rented by Tam Nguyen, who occupied one bedroom and rented out the other four bedrooms to between eight and 10 people. Police found two .357-caliber pistols, a rifle similar to an AK-47, and prescriptions from Dr. Dinh Van Dinh for ampicillin for Huy Pham and for cephalexin for “John Nguyen.” Dr. Dinh Van Dinh testified at trial that he had treated defendant, who used the name John Nguyen, on May 11, 1995, for wounds to his hand and arm. Defendant had said he had been cleaning his shotgun five days earlier and a friend had accidently discharged it. Dr.

Dinh had prescribed the antibiotic cephalexin to prevent infection. On May 25, 1995, Westminster Police Detective Mark Nye arrested defendant when he arrived for a medical appointment with Dr. Dinh. Defendant had injuries to his left hand and right elbow consistent with wounds caused by a shotgun. Defendant testified in his own defense that he was in Alabama when Tony Nguyen and Huy Nguyen were shot. His sisters Phuong and Nen Nguyen corroborated his testimony. Defendant denied having been present when Sang Nguyen and Duy Vu were killed or when Khoi Huynh was shot.

Defendant admitted having been in the white Honda when Tuan Pham was killed, but said he was unarmed and sitting in the backseat. B. Penalty Phase The parties stipulated that defendant had been convicted of assault with a firearm in violation of

section 245, subdivision (a)(2). Cai Thi Tran, the mother of murder victim Sang Nguyen, testified that her son was a “good kid” who “liked to draw pictures.” She described the impact of her son’s death on her and her family. Defendant’s sister, Nen Nguyen, testified for the defense that when defendant was six years old, she and her siblings fled Vietnam and traveled to Thailand on a fishing boat. After being held by Thai police for 20 days and spending two months in a refugee camp, they came to the United States.

Psychologist Francis Crinella interviewed defendant, administered psychological tests, and determined that defendant was intelligent and showed no signs of brain damage. He was “somewhat compromised in his use of the English language” and had the math skills of an eighth grader. II. Guilt Phase Issues A. Issues Related to the February 5, 1995, Murder of Sang Nguyen 1.

Expert testimony Over defendant’s objection, the trial court permitted the prosecution’s gang expert to testify that the most common excuse given by reluctant witnesses at the scene of a gang crime committed in a restaurant is that they did not see anything because they were in the bathroom. Defendant argues that the convictions related to the murder of Sang Nguyen must be reversed because this violated Evidence Code sections 801 and 352 as well as his federal constitutional rights to due process, confrontation of witnesses, trial by an unbiased jury, and freedom from cruel and unusual punishment.

Sang Nguyen, a member of the Cheap Boys gang, was shot and killed on February 5, 1995, outside of the Dong Khanh Restaurant in Westminster where he was having dinner with five companions: Linda Vu, Trieu Binh Nguyen, Trieu Hai Nguyen, Binh Tran, Bich To, and Amy Pech. When Westminster Detective Mark Nye arrived at the scene shortly after the shooting, all five dinner companions denied having witnessed the shooting. Two of them said they were in the bathroom when it happened.

Trieu Binh Nguyen, a member of the Cheap Boys, told Detective Nye he was returning to the table from the restaurant’s bathroom when he heard two shots, but that he did not see who shot Sang. Linda Vu, a member of a female gang associated with the Cheap Boys, confirmed that Trieu Binh Nguyen and Binh Tran were both in the bathroom when she heard gunshots, as did Bich To and Amy Pech. Vu denied having seen the shooting or the shooter. Two months after the shooting, Detective Nye received a telephone call from Trieu Binh Nguyen and Khoi Huynh, a “core member” and “shot-caller” of the Cheap Boys gang.

Khoi Huynh was a victim of the shooting on March 11, 1995. During the three-way telephone call, Trieu Binh Nguyen told Detective Nye he had seen defendant and two other men walk into the restaurant. Defendant hit Sang on the shoulder and asked him to go outside, where he shot him. On August 23, about three months after Trieu Binh Nguyen called Detective Nye, Linda Vu changed her story in a tape-recorded interview with Detective Nye and another detective. She said that before the shooting, she had seen a man peering through the window and recognized him from prior encounters.

She then saw Sang walk outside, “struggle” with the man, and then heard the gunshot. During the interview, Vu picked out defendant’s photograph from a photo lineup as the man who had looked through the window and later shot Sang. At trial, all of the dinner companions, except for Amy Pech, retracted their initial statements about what happened the night of the shooting. Trieu Binh Nguyen testified that he had lied about being in the bathroom and that he actually had gone outside to smoke with Binh Tran. While he was outside the restaurant, he saw defendant, accompanied by two other men, shoot Sang in the head.

Trieu Binh Nguyen explained that he had lied on the night of the shooting because he had been “confused,” “depressed,” and “frustrated.” Linda Vu also identified defendant as the shooter. The prosecution called Detective Nye as an expert witness on Asian gangs.

Detective Nye testified that he had “been a police officer for Westminster for over 12 years,” during which time he had “made contact with several hundred or probably close to a thousand gang members.” He had “over 300 hours advanced officer training in gangs, with particular emphasis on Vietnamese or Asian street gangs.” Among other matters, Detective Nye testified that a gang member who talks to the police is considered a “rat” and may be “severely beaten, if not killed.” On cross-examination, Detective Nye testified that Trieu Binh Nguyen told him on the night of the crime that he had been returning from the bathroom when he heard the gunshots and did not witness the murder.

Linda Vu confirmed that Trieu Binh Nguyen and Binh Tran had been in the bathroom when the murder occurred. Vu said she had ducked under the table when she heard the gunshots and also did not see the shooting.

On redirect examination, over defendant’s objection, the prosecutor asked Detective Nye, based on his background, training, and experience, to name the “one common thing that people seem to say when they don’t want to cooperate with you . . . when you go to ... a crime scene where a gang crime is involved, like a shooting or a homicide.” Detective Nye answered, “Usually say they didn’t see anything.” The prosecutor then asked what is “the most common excuse of [why] they didn’t see anything.” Detective Nye answered, “In my experience with investigating gang crimes in the cafes and restaurants, the number one answer is T was in the bathroom at the time.’ ” Defendant claims Detective Nye’s testimony “was outside the scope of permissible expert testimony.” Although Detective Nye was qualified as a gang expert, the disputed testimony was based upon his personal observations at numerous gang-related crime scenes, not his expert opinion, and it thus is admissible if it is relevant. (People v.

Champion (1995) 9 Cal.4th 879, 921-922 [39 Cal.Rptr.2d 547, 891 P.2d 93], overruled on another ground in People v. Combs (2004) 34 Cal.4th 821, 860 [22 Cal.Rptr.3d 61, 101 P.3d 1007].) Detective Nye’s testimony about the most common excuse given by reluctant witnesses at the scene of a gang-related crime is relevant because the jury could infer from it that the witnesses in this case were reluctant to testify and initially fabricated the story that they did not witness the murder. (See Evid.

Code, § 210 [“ ‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness, or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”].) Defendant argues that Detective Nye’s testimony was inadmissible because it “was premised upon two implicit propositions”: that persons at the scene of a gang-related crime who claimed to be in the bathroom were lying and that they were lying because they did not want to cooperate with the police.

According to defendant, these two propositions are problematic because “each involved an untenable claim of the ability to assess credibility and/or to read minds, . . . neither involved matters ‘perceived by or personally known ... or made known to him at or before [his testimony],’ ” and both were “too unreliable ... as the basis for an expert opinion.” But Detective Nye’s statements described the common behavior of witnesses to gang-related crimes and did not purport to assess the veracity of individual witnesses.

Detective Nye stated that in his experience, witnesses at a gang-related shooting in a public place such as a restaurant often claim that they did not see anything because they had been in the bathroom. Even if we were to construe Detective Nye’s testimony as expert opinion, defendant’s argument lacks merit. Under Evidence Code

section 801, subdivision (a), an expert may offer an opinion “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” In People v.

Gonzalez (2006) 38 Cal.4th 932 [44 Cal.Rptr.3d 237, 135 P.3d 649], a police gang expert testified that witnesses to a gang-related crime are usually reluctant to testify because of fear of retaliation, and that is why “the witnesses might repudiate earlier truthful statements” that the defendant was the shooter. (Id. at p. 946.) We held that this testimony “was quite typical of the kind of expert testimony regarding gang culture and psychology that a court has discretion to admit.” (Id. at p. 945.) “Whether members of a street gang would intimidate persons who testify against a member of that or a rival gang is sufficiently beyond common experience that a court could reasonably believe expert opinion would assist the jury.” (Ibid.; see People v.

Ward (2005) 36 Cal.4th 186, 211 [30 Cal.Rptr.3d 464, 114 P.3d 717] [police officer permitted to testify that “witnesses, even those from rival gangs, are often reluctant to identify or testify against gang members out of fear for their safety”].) The trial court here would not have abused its discretion if it had concluded that the bathroom excuse used by witnesses to gang-related shootings was sufficiently beyond common experience to allow admission under Evidence Code

section 801. Defendant further argues that Detective Nye’s testimony was inadmissible under Evidence Code 352 because “any probative value” of the evidence “was vastly outweighed by its undue prejudicial effect.” Such claims are reviewed on appeal for abuse of discretion. (People v. Bryant, Smith, and Wheeler (2014) 60 Cal.4th 335, 408 [178 Cal.Rptr.3d 185, 334 P.3d 573].) This claim fails because defendant does not show any prejudice within the meaning of Evidence Code

section 352. “The prejudice which exclusion of evidence under Evidence Code

section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. ‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in Evidence Code

section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying Evidence Code

section 352, “prejudicial” is not synonymous with “damaging.” ’ ” (People v. Karis (1988) 46 Cal.3d 612, 638 [250 Cal.Rptr. 659, 758 P.2d 1189].) Detective Nye’s testimony that reluctant witnesses at the scene of a gang crime committed in a restaurant commonly claim they did not see anything because they were in the bathroom had no tendency to evoke an emotional bias against defendant. Finally, even if the trial court had erred in admitting Detective Nye’s testimony, the error would have been harmless.

All witnesses but Amy Pech retracted their initial statements about having been in the bathroom, and both Trieu Binh Nguyen and Linda Vu identified defendant as the person who shot Sang Nguyen. 2. Evidentiary rulings and limiting instruction Defendant challenges several of the trial court’s evidentiary rulings, as well as its refusal to give the jury a limiting instruction pursuant to Evidence Code

section 355. He contends that these errors violated his federal constitutional rights to due process, to present a defense, to compel the testimony of witnesses, and to be confronted with the witnesses against him. First, defendant argues that the trial court erred in sustaining an objection to a question defense counsel asked defense witness Tin Due Phan because it hindered defendant’s efforts to establish the existence of a plan to frame him for the murder of Sang Nguyen.

At the beginning of the morning session on June 16, 1998, defense counsel predicted that he would finish the defense case the following day by calling several witnesses. Near the end of the defense case that same day, defense counsel announced outside the presence of the jury that he would call as a witness Tin Due Phan. The prosecutor complained that defense counsel had promised to provide “reports 48 hours before calling a witness,” but only the day before she had received a report of a defense interview of Phan that had taken place on September 19, 1997.

In the hallway a few minutes earlier, the prosecutor had shown Phan that report, and he denied making a quote attributed to him that “the Cheap Boys are setting up Nip Family because it’s okay to rat on them since they are ratting on us.” Phan told the prosecutor that the Cheap Boys “wouldn’t lie to set somebody up.” Defense counsel stated that he needed some time to decide whether to call Phan as a witness “in view of the prosecution’s recent interview.” Defense counsel later decided to call Phan as a witness after the court ruled that a misdemeanor charge pending against Phan could not be used to impeach him.

At the bench, the prosecutor said she understood that defense counsel was only “going to cover that paragraph we talked about.” Defense counsel agreed. Phan then testified that he had been a member of the Cheap Boys from 1991 to 1995.

Phan agreed that he had been interviewed by a defense investigator on September 19, 1997, but said he did not “remember what we talked about.” Defense counsel then asked Phan whether he had made several statements attributed to him in the defense investigator’s report, including whether he had told the investigator “that the Cheap Boys were setting up Nip Family because it’s okay to rat on them, since they’re ratting on us.” To each question, Phan answered, “I don’t remember.” Defense counsel then asked whether Phan knew an individual named Lap Nguyen. Phan said he did.

When defense counsel asked Phan whether he knew that Lap Nguyen “was accused of shooting,” the prosecutor objected and said at the bench: “I could have sworn that’s why we approached and he said he specifically was only going to the paragraph.” Defense counsel replied: “I told you I wasn’t going to ask that. This is Lap Nguyen, this is the guy that pisses him off because this is this Cheap Boy, and Ky Nguyen Nip Family is ratting on Cheap Boy in a separate incident. Setting off this war.” The court sustained the prosecutor’s objection.

After Phan finished his testimony and the jury had been excused for the morning, the court explained that defense counsel had exceeded the scope of questioning that the parties had agreed to and “sought to get into an area that the district attorney had an objection to,” but offered that if defense counsel “still want[s] to get into it, we can talk about it.” Defense counsel explained that his understanding of what started “this ratting retaliation war” is that Nip Family member Ky Nguyen testified in 1995 that Cheap Boys member Lap Nguyen shot him.

Defense counsel “wanted to explore and see if’ Phan knew that Lap Nguyen had been accused of attempted murder. Defense counsel acknowledged that his investigator had not asked Phan this question, so he did not know what Phan’s answer might be. The court responded that it did not “mind you pursuing that theory” but noted that Phan had been interviewed on September 19, 1997, which had given defense counsel “adequate time to explore all the parameters that this witness can give to you.

And if you don’t have it in a statement that you’ve given to opposing counsel during your interviews, Pm not going to permit counsel to pursue that. Especially when you don’t know what the answer is going to be.” Defendant argues that the trial court erroneously concluded “that the defense had failed in its discovery obligations” and then “compounded its error by using preclusion of testimony as the sanction.” This does not accurately describe the trial court’s ruling. The trial court did not impose a discovery sanction. Rather, the trial court sustained an objection to a question asked by defense counsel.

Defendant cites People v. Zambrano (2007) 41 Cal.4th 1082, 1163 [63 Cal.Rptr.3d 297, 163 P.3d 4], which held that the prosecution “need not extract all possible information from a private citizen who is a potential prosecution witness in order to disclose it to the defense.” But here, the trial court did not fault defendant for failing to determine whether Phan knew that Lap Nguyen had been accused of attempted murder.

The trial court held that defendant could not ask Phan this question for the first time on the witness stand without first interviewing him on this subject and providing a report of this interview to the prosecutor. “The court shall exercise reasonable control over the mode of interrogation of a witness . . .” (Evid. Code, § 765, subd. (a)) and need not permit examination of a witness that amounts to nothing more than a fishing expedition (Schreefel v. Okuly (1983) 143 Cal.App.3d 818, 828 [192 Cal.Rptr. 402]).

A defense investigator had interviewed Phan nine months earlier but did not ask him whether he knew that Lap Nguyen had been accused of attempted murder. The trial court did not abuse its discretion in declining to permit defense counsel to ask the witness that question for the first time at trial, which would have had the effect of circumventing the parties’ agreement that defense counsel would give the prosecutor advance notice of the evidence he planned to present.

In any event, defendant cannot demonstrate prejudice resulting from the court’s ruling because the record before us does not reflect how the witness would have answered the question.

Defendant next argues that the trial court erred in excluding evidence of a meeting place or “crash pad” used by the Cheap Boys because such evidence would have supported the “defense theory . . . that it would have been at such a meeting that an agreement was reached to falsely point the finger at [defendant].” Defendant acknowledges that he “was allowed to elicit the generic definition of ‘crash pads’ ” but contends he was not allowed to show that the Cheap Boys themselves had such a crash pad or that Linda Vu, Kevin Lac, and Khoi Huynh themselves frequented the Cheap Boy’s crash pad.

But the record belies defendant’s assertion that the court erroneously precluded him from introducing evidence that the Cheap Boys used a crash pad as a meeting place. As explained below, each of the trial court’s evidentiary rulings was proper. On May 27, 1997, Cheap Boys member Khoi Huynh, who was shot outside of the Rack and Cue pool hall on March 11, 1995, testified on cross-examination that he had been contacted by the police on May 14, 1992, outside of the Mission Control video arcade.

When defense counsel asked whether Huynh had been violating the terms of his probation, the prosecutor objected on the ground, among others, that the question violated the rule in People v. Wheeler (1992) 4 Cal.4th 284, 295-297 [14 Cal.Rptr.2d 418, 841 P.2d 938], limiting the use of prior misdemeanor convictions for impeachment. The court asked to speak to counsel outside the presence of the jury.

Defense counsel explained that he was not attempting to impeach Huynh by showing he was on probation but rather was trying to show that Huynh hatched a plan to frame defendant for the charged crimes: “Khoi’s high up in the Cheap Boys hierarchy. . . . And my whole theory about this case is none of the accusations arise against Lam Nguyen until after this March 11, 1995, shooting of Khoi Huynh goes down.

And our theory is that he’s the mastermind behind this, talking with other people and getting a campaign going of liars who are going to come in and wrongfully accuse our guy of some of these murders that took place on May 3 and on May 6.” The court was not convinced: “Trying to prove a probation violation is not admissible under Wheeler or the cases that follow from that.

So I’m concerned that that’s what, in fact, you’re trying to do, although the law does not permit it.” Defendant acquiesced: “If the court’s concerned about the probation violation, I won’t get into the fact that he is in the area with known Cheap Boys, and I won’t refer to it as a probation violation if that’s a concern by the court.” Later the same day, before the jury was called in, defense counsel mentioned “a crash pad up in El Monte.” The court replied: “What you have just identified might be permissible areas. I can’t make a definitive decision at this stage. I’ll simply ask you don’t go into this area.

This is something that we need to have some time to discuss . . . .” The next day, defense counsel again mentioned the crash pad evidence but did not press the court for a ruling: “Your Honor, I don’t know whether you want to wrestle with the issue now, I know you put this on the back burner with Khoi Huynh, but it’s the same El Monte crash pad on January 29, 1995, six days before the shooting. ... So I know you put it on the back burner with Khoi.

If you want me to continue putting it on the back burner?” The court replied: “Keep it on the back burner.” The court denied defendant’s offer of proof at the beginning of the afternoon session on June 8, 1998, but promised to “revisit this area once again before making any final rulings.” Defendant had offered to prove that on January 29, 1995, six days before Sang Nguyen was murdered, the El Monte Police Department raided a Cheap Boys crash pad and found Khoi Huynh and Linda Vu with a “whole bunch of Cheap Boys gang members” and “two loaded .357 magnums.” Defendant asserted this evidence was relevant because the crash pad is “where a bunch of Cheap Boys get together and discuss gang politics and who their next target is going to be and things like that.” The court asked whether defendant had “evidence of statements that were made between these individuals on January 29th, ‘95.” Defendant answered “no,” and the court excluded the evidence, adding: “As things develop during the course of presenting your defense, we’ll revisit this area once again before making any final rulings.” Detective Nye testified on cross-examination that a crash pad is “where the gang members congregate, plan criminal activity, hide out fugitives and other wanted persons, runaways, hold or stash weapons and other evidence from crimes.” Defense counsel then asked to approach the bench, and the court reiterated that its previous ruling excluding evidence of “the thing in Pasadena in January of ’95 . . . still holds and subject to review later during the presentation of your case.” The court later revisited the issue of the El Monte crash pad: “The Court: The subject of the El Monte crash pad in January of ’95 keeps coming up, and every time I visit it I always make the same ruling, but, I might be missing something.

So, the best I can make out from your offer of proof is, the troops from the opposing gang got together and they’re at a crash pad and they’re doing things similar to what Nye testified gangs do at crash pads. But, you want to take it one step further that somehow or another they got together and came up with, I guess their identification of your client? “[Defense Counsel]: Well, they discussed gang politics and what’s going on. That’s out before the jury.

And, you know, I don’t know when this Cheap Boy conspiracy was hatched between the Khoi Huynh’s, Kevin Lac’s and the Linda Yu’s, but at some point in time at some crash pad, somewhere.” Defense cocounsel added that the beginning of the Cheap Boys conspiracy “could very well have happened there in El Monte.” The court ruled: “Okay. I just wanted to hear one more time. It doesn’t change my ruling . . . .” Near the end of the defense case, defense counsel checked whether the trial court had made a “definitive ruling” on admitting evidence of the January 1995 raid on the crash pad in El Monte.

The court confirmed that it had, saying: “My instincts were well taken.” Defendant argues that the trial court erred in excluding evidence of the January 1995 raid on the Cheap Boys crash pad because it was relevant to show that the Cheap Boys actually had a crash pad and that Khoi Huynh and Linda Vu had been there at the same time. This evidence was marginally relevant at best. The raid on the El Monte crash pad occurred well before the Cheap Boys allegedly began the conspiracy to frame defendant.

The trial court did not abuse its discretion in excluding this evidence on the ground that it would necessitate undue consumption of time and would confuse the issues in a manner that outweighed its limited probative value. (Evid. Code, § 352.) Defendant next argues that the trial court erred in excluding impeachment evidence that Bich To was living with Trieu Binh Nguyen when she recanted her statement to police at the crime scene that Trieu Binh Nguyen, her boyfriend at the time, had been in the bathroom when Sang was shot.

To was called as a witness for the defense and testified that she and Trieu Binh Nguyen had been visiting from Texas. Bich To testified that she had lied when she told police at the scene of the crime that he and Binh Tran were in the bathroom when Sang was shot. She said she feared that had she told the truth that night, the police might have prevented Trieu Binh Nguyen from returning to Texas. Bich To testified that a few weeks earlier, she had spoken to the prosecutor on the telephone and explained that her statement to the police was false.

Before talking to the prosecutor, To had spoken to Trieu Binh Nguyen but had not discussed her testimony. To confirmed that after the murder, she remained Trieu Binh Nguyen’s girlfriend “for a period of time” but denied that she saw him on a regular basis and could not recall how often she saw him. She denied ever having discussed the change in her testimony with Trieu Binh Nguyen.

Defense counsel asked to approach the bench and explained that he understood that To and Trieu Binh Nguyen had had a child together and wanted to ask To whether that was true in order to impeach her testimony that she had not seen Trieu Binh Nguyen regularly after the murder. The prosecutor said she did not believe that was true. At a hearing held outside the presence of the jury, To denied having had a child with Trieu Binh Nguyen.

The jury was brought back into court, but before questioning resumed, defense counsel asked to approach the bench again and the following exchange took place: “[Defense Counsel]: If they were living at the same address? “The Court: No. “[Defense Counsel]: Well, judge— “The Court: The answer is no. “[Defense Counsel]: You won.” After To was excused, defense counsel again asked to approach the bench and said he had been told by the prosecutor that To and Trieu Binh Nguyen had been married.

To was recalled as a witness and confirmed that she had been married to Trieu Binh Nguyen for seven or eight months the year before. During that period, she saw him on a daily basis. Defendant argues that the trial court erred in refusing to permit defense counsel to ask To whether she had been living at the same address as Trieu Binh Nguyen. But any possible prejudice from not permitting defense counsel to ask this question was cured when, immediately thereafter, defense counsel was permitted to have the witness testify that she had been married to Trieu Binh Nguyen for several months in 1997.

Defendant challenges the trial court’s refusal to instruct the jury that Trieu Binh Nguyen’s testimony that he decided to testify against defendant because he had heard that “the same guy killed my friend” was introduced for the nonhearsay purpose of showing Trieu Binh Nguyen’s state of mind and not for the truth of the matter asserted. As noted, Trieu Binh Nguyen had told police at the scene of Sang’s murder that he had been in the bathroom and had not witnessed the shooting. Later, he called the police and said he had seen defendant shoot and kill Sang.

When asked by the prosecutor at trial why he had done this, he explained: “It get to a point that I heard lot of my friend went down from what happened, the same guy killed my friend, get to a certain point I can’t stand it anymore.” Defense counsel objected: “Objection, unless the court instructs that that’s not coming in for the truth of the matter asserted therein. Other than that I’m objecting because it’s based on impermissible hearsay.” The trial court overruled the objection. The trial court was correct to admit the statement because it went to Trieu Binh Nguyen’s state of mind. (See People v.

Mendoza (2007) 42 Cal.4th 686, 697 [68 Cal.Rptr.3d 274, 171 P.3d 2].) Evidence Code

section 355 states that “[w]hen evidence is admissible ... for one purpose and is inadmissible . . . for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.” But even assuming the trial court erred in failing to give a limiting instruction, the error did not prejudice defendant because the purpose of eliciting Trieu Binh Nguyen’s statement was clear from the prosecutor’s question.

The prosecutor asked why Trieu Binh Nguyen had decided to testify against defendant, not what Trieu Binh Nguyen knew about other crimes with which defendant was charged. Trieu Binh Nguyen’s statement “the same guy killed my friend” could not have had much weight in light of the other evidence at trial, and there is no reasonable probability that the court’s refusal to instruct affected the outcome of the trial. B. Issues Related to the May 6, 1995, Murder of Tuan Pham 1.

Self-defense Defendant argues that the convictions arising out of the murder of Tuan Pham and the resulting judgment of death must be reversed because the evidence established self-defense as a matter of law. Defendant claims that “there is no legal support for the jury’s verdicts . . . and the convictions must be reversed for insufficiency of evidence as a matter of Due Process under the Fifth and Fourteenth Amendments.” As noted, Pham, a member of the Cheap Boys, was killed when he approached a white Honda that was stopped at a red light.

As defendant concedes, the jury accepted the prosecution’s evidence that defendant “was seated in the driver’s seat of the Honda Accord and fired one or more of the shots that killed Tuan.” Robert Murray, the driver of the car next to defendant’s, saw Pham approach carrying a gun.

Murray testified that just before Pham arrived at the driver’s window of the Honda, the driver pulled out a gun and then “looked over at me . . . and gave a nice smile, and put [the] gun right here to his chest.” It looked to Murray as if the people in the Honda knew that Pham was approaching: “[T]hey must have known something was going to come down, because they started to kind of move about, you know, nervousness or whatever you would want to call it.” Murray surmised that the driver was “waiting for the move.” The driver then pointed the gun at Pham and fired, and Pham fired back. Murray drove off.

Pham lay dead in the intersection; he had been shot twice in the back and once in the head.

The court instructed the jury at length on self-defense: “The killing of another person in self-defense is justifiable and not unlawful when the person who does the killing actually and reasonably believes, one, that there was an imminent danger that the other person will either kill him or cause him great bodily injury; and, two, that it is necessary under the circumstances for him to use in self-defense force or means that might cause the death of the other person for the purpose of avoiding death or great bodily injury to himself. [¶] . . .

To justify taking the life [of] another in self-defense the circumstances must be such as would excite the fears of a reasonable person placed in a similar position, and the party killing must act under the influence of those fears alone. “A person threatened with an attack that justifies the exercise of the right of self-defense need not retreat. ... [A] person may stand his ground and defend himself by the use of all force and means which would appear to be necessary to a reasonable person in a similar situation ....

This law applies even though the assailed person might more easily have gained safety by flight or by withdrawing from the scene. “The right of self-defense is only available to a person who initiated an assault if he has done all of the following: One, he has actually tried in good faith to refuse to continue fighting; two, he has clearly informed his opponent that he wants to stop fighting; and, three, he has clearly informed his opponent that he has stopped fighting. “The right of self-defense is not available to a person who seeks a quarrel with the intent to create a real or apparent necessity of exercising self-defense. “The right of self-defense is only available to a person who engages in mutual combat if he has done all of the following: One, he has actually tried in good faith to refuse to continue fighting; two, he has clearly informed his opponent that he wants to stop fighting; three, he has clearly informed his opponent that he has stopped fighting; and, four, he had given his opponent the opportunity to stop fighting.” Defendant is incorrect that the evidence established self-defense as a matter of law. “ ‘[WJhere the evidence is uncontroverted and establishes all of the elements for a finding of self-defense it may be held as a matter of law that the killing was justified; however, where some of the evidence tends to show a situation in which a killing may not be justified then the issue is a question of fact for the jury to determine.’ ” (People v.

Levitt (1984) 156 Cal.App.3d 500, 509 [203 Cal.Rptr. 276] (Levitt).) The jury in this case could reasonably have concluded, based on the evidence, that defendant was engaged in mutual combat because the Nip Family, of which he was a member, was engaged in an ongoing gang war with the Cheap Boys, of which Pham was a member. “[A]s used in this state’s law of self-defense, ‘mutual combat’ means not merely a reciprocal exchange of blows but one pursuant to mutual intention, consent, or agreement preceding the initiation of hostilities. ...

In other words, it is not merely the combat, but the preexisting intention to engage in it, that must be mutual.” (People v. Ross (2007) 155 Cal.App.4th 1033, 1045 [66 Cal.Rptr.3d 438] (Ross).) In light of Detective Nye’s testimony regarding the state of war that existed between the Nip Family and Cheap Boys during the period in question, the jury could reasonably have concluded that these rival gangs had a preexisting intention to engage in hostilities whenever the opportunity presented itself.

The jury also reasonably could have concluded that defendant was not entitled to claim self-defense because, in shooting Pham, he did not act on the basis of fear alone but also on a desire to kill his rival.

Section 197, subdivision 1 states that homicide is justifiable “[w]hen resisting any attempt to murder any person . . . .”

Section 197, subdivision 2 adds that homicide is justifiable “[w]hen committed in defense of . . . person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony . . . .” “A bare fear” (§ 198) that a felony will be committed “by violence or surprise” (§ 197, subd. 2) is not sufficient to justify homicide; rather, “the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone” (§ 198). Several decisions have interpreted the phrase “such fears alone” in

section 198. People v. Trevino (1988) 200 Cal.App.3d 874 [246 Cal.Rptr. 357] (Trevino) held that “an instruction which states that the party killing must act under the influence of such fears alone, is a correct statement of the law.” (Id. at p. 879; accord, People v. Ye Park (1882) 62 Cal. 204, 207-208.) People v. Shade (1986) 185 Cal.App.3d 711 [230 Cal.Rptr. 70] held that under

section 198, “self-defense is not available when a person does not act out of fear alone, but out of fear and a desire to harm the attacker.” (Shade, at p. 716.) Similarly, the Court of Appeal in Levitt held that “a reasonable trier could have found that, even assuming defendant had the right to use some force in self-defense, he was less than candid regarding the degree of danger he actually faced, and his response was attributable more to a preconceived intent to kill than to the actual danger.” (Levitt, supra, 156 Cal.App.3d at p. 510; see People v.

Hecker (1895) 109 Cal. 451, 463 [42 P. 307] [a person placed in imminent danger may slay his aggressor in self-defense, but the person must act “in good faith to the sole end of winning his safety and securing his life”]; People v.

Vernon (1925) 71 Cal.App. 628, 629 [235 P. 737] [it was “a correct statement of the law” to interpret the word “alone” in § 198 to “limit[] the right to take the life of another in self-defense to cases where the act is done under the influence of fear of the danger designated”].) The Court of Appeal in Trevino clarified that this rule does not “imply that a person who feels anger or even hatred toward the person killed, may never justifiably use deadly force in self-defense.” (Trevino, supra, 200 Cal.App.3d at p. 879.) “[I]t would be unreasonable to require an absence of any feeling other than fear, before the homicide could be considered justifiable.

Such a requirement is not a part of the law .... Instead, the law requires that the party killing act out of fear alone. . . . The party killing is not precluded from feeling anger or other emotions save and except fear, however, those other emotions cannot be causal factors in his decision to use deadly force. If they are, the homicide cannot be justified on a theory of self-defense.

But if the only causation of the killing was the reasonable fear that there was imminent danger of death or great bodily injury, then the use of deadly force in self-defense is proper, regardless of what other emotions the party who kills may have been feeling but not acting upon.” (Ibid.) Here, it was for the jury to decide whether defendant acted out of fear alone when he shot and killed Pham.

Murray’s testimony that the driver of the Honda held a gun to his chest and smiled at Murray as he waited for Pham to approach is sufficient evidence to support a finding by the jury that defendant did not act out of fear alone. We note that defendant did not argue in the trial court, nor has he argued on appeal, that the jury should have been instructed that acting based on mixed motives is permissible so long as reasonable fear was the but-for cause of his decision to kill. We therefore have no occasion to consider whether such a rule would be consistent with

section 198 as interpreted in Trevino or other cases. Instead, defendant contends that the phrase “such fears alone” that appears at the end of

section 198 does not mean that the person must act only on the basis of such fears but “plainly refers to ‘the fears of a reasonable person.’ ” Defendant argues that this clause “was meant to make clear that only ‘fears’ that meet the ‘reasonable person’ test — i.e., ‘such fears alone’— are sufficient to justify a killing as self-defense.” However, none of the authorities cited above interprets

section 198 in the manner suggested by defendant. Defendant argues in the alternative that even if there was at least one valid legal theory under which the jury could have rejected his self-defense claim, his convictions must still be reversed because the prosecution relied on several improper legal theories. This contention lacks merit.

Of the six theories defendant alleges were introduced, four of them— mutual combat, sole motivation, initial aggressor, and contrived self-defense — were legally valid as presented here, and the jury was free to determine whether the evidence relating to any of these theories was sufficient to defeat defendant’s self-defense claim. (See Griffin v.

United States (1991) 502 U.S. 46, 59 [116 L.Ed.2d 371, 112 S.Ct. 466] [“[T]he term ‘legal error’ means a mistake about the law, as opposed to a mistake concerning the weight or the factual import of the evidence,” where, “for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime.”]; People v. Harris (1994) 9 Cal.4th 407, 419 [37 Cal.Rptr.2d 200, 886 P.2d 1193] [legally invalid theory is one “which, if relied upon by the jury, could not as a matter of law validly support a conviction of the charged offense”]; People v.

Guiton (1993) 4 Cal.4th 1116, 1129 [17 Cal.Rptr.2d 365, 847 P.2d 45] [inadequacy of a given theory is “legal, not merely factual . . . when the facts do not state a crime under the applicable statute”].) Defendant contends that the two remaining theories were raised when the prosecutor’s argument to the jury “exploited language in the jury instructions so as to suggest that self-defense principles appl[y] only to ‘decent,’ ‘reasonable,’ and ‘basically good’ people and not to gang members,” and also suggested to the jury that “self-defense was not available unless the defendant not only reasonably believed he was in imminent danger but also had an emotional reaction of fear to the danger.” Even assuming that the “prosecutor arguably misstated some law, ... such an error would merely amount to prosecutorial misconduct [citation] during argument, rather than trial and resolution of the case on an improper legal basis.” (People v.

Morales (2001) 25 Cal.4th 34, 43 [104 Cal.Rptr.2d 582, 18 P.3d 11].) As defendant acknowledges, he did not object at trial to these prosecutorial comments, nor did he ask the trial court to modify or clarify any of the relevant jury instructions. His claims regarding these comments are therefore forfeited. (People v. Mills (2010) 48 Cal.4th 158, 194 [106 Cal.Rptr.3d 153, 226 P.3d 276]; People v.

Jablonski (2006) 37 Cal.4th 774, 809 [38 Cal.Rptr.3d 98, 126 P.3d 938]; Morales, at p. 44.) Finally, defendant relies upon matter that is outside the record to argue that defendant’s smile was irrelevant because “[f]or non-Vietnamese persons, ‘a smile [of a Vietnamese person] means little and cannot be read.’ ” Whether or not this is true, no evidence on this point was admitted at trial, and we will not consider it for the first time on appeal. (People v. Jennings (2010) 50 Cal.4th 616, 684-685, fn. 34 [114 Cal.Rptr.3d 133, 237 P.3d 474].) 2.

Manslaughter Defendant argues that he could be convicted of no offense greater than manslaughter for killing Pham. Defendant first cites People v. Sanchez (1864) 24 Cal. 17, 27, for the rule that a killing committed during mutual combat “reduce[s] the offence from murder to manslaughter.” But Sanchez did not so hold.

Sanchez held that the trial court properly refused to instruct the jury as follows; “ ‘When, upon sudden quarrel, two persons fight, and one of them kills the other, this is voluntary manslaughter; and so if they, upon such occasion, go out and fight in a field, for this is one continued act of passion.’ ” (Id. at p. 26.) This instruction was incorrect because “[i]t ignores entirely the doctrine that in case of mutual combat, in order to reduce the offence from murder to manslaughter, it must appear that the contest was waged upon equal terms, and no undue advantage was sought or taken by either side . . . .” (Id. at p. 27.) At most, Sanchez stated in dicta that a killing that results from a “sudden quarrel” is voluntary manslaughter. (See People v.

Lee (1999) 20 Cal.4th 47, 60, fn. 6 [82 Cal.Rptr.2d 625, 971 P.2d 1001].) As defendant acknowledges, this court held in People v. Bush (1884) 65 Cal. 129, 132 [3 P. 590], that “ ‘when parties by mutual understanding engage in a conflict with deadly weapons and death ensues to either, the slayer is guilty of murder ....’” Defendant also cites Levitt for the rule that his offense could be no more than manslaughter if he acted with the multiple motivations of self-defense and a desire to kill. But defendant misreads Levitt.

Levitt was convicted of voluntary manslaughter and challenged his conviction on the ground that “there was insufficient evidence of manslaughter in that the record establishes complete self-defense as a matter of law.” (Levitt, supra, 156 Cal.App.3d at p. 509.) The Court of Appeal rejected that argument, stating “if the degree of force used was influenced by any motivations aside from a belief in the necessity to act iri self-defense, then manslaughter was an appropriate verdict on that ground alone.

In order for homicide to be completely justified in self-defense, ‘the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone.' " (Ibid.) Levitt thus held only that the defendant’s conviction for manslaughter was supported by substantial evidence; Levitt did not suggest that a defendant who is motivated to kill by both self-defense and a desire to kill may never be convicted of an offense greater than manslaughter. 3.

Jury instructions regarding self-defense Defendant argues that the trial court erred in refusing to instruct the jury that “[t]he law of self defense applies equally to all persons, regardless of whether he or she is a member of a criminal street gang.” The court denied the proposed instruction without comment or argument.

The trial court instructed the jury at length regarding self-defense, saying that a killing is justified “and not unlawful when the person who does the killing” reasonably believes there was an imminent danger and it was necessary to use force “for the purpose of avoiding death or great bodily injury to himself.” The instructions referred to “the fears of a reasonable person placed in a similar position” and stated that the danger must be apparent to “a reasonable person.” Most importantly, the trial court instructed the jury that “[hjomicide is justifiable and not unlawful when committed by any person in the defense of himself . . . .” (Italics added.) The court’s instructions left no doubt that the law of self-defense applies equally to all persons.

Defendant’s proposed instruction was duplicative and unnecessary. Defendant also argues that the trial court erred in refusing his request to instruct the jury on imperfect self-defense.

During its discussion of jury instructions, the trial court announced that it had determined “that there is insufficient evidence for the court to instruct sua sponte or upon request of counsel for defendant as to what’s called the ‘imperfect self-defense.’ ” “Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter.” (In re Christian S. (1994) 7 Cal.4th 768, 771 [30 Cal.Rptr.2d 33, 872 P.2d 574].) “[J]ust as with perfect self-defense or any defense, ‘[a] trial court need give a requested instruction concerning a defense only if there is substantial evidence to support the defense.’ ” (Id. at p. 783.) The jury could reasonably have found that the gun battle that resulted in the death of Pham began when Pham, who was carrying a gun, approached the car that defendant was driving.

Just before Pham arrived at the driver’s side window of the Honda, defendant pulled out a gun and fired at Pham; Pham fired back. Pham died at the scene after being shot twice in the back and once in the head. Under these facts, the trial court was correct that there was no basis for the jury to find that defendant unreasonably believed he was in imminent danger of death or great bodily injury. If anything, the evidence suggests that such fear was reasonable but that the jury, in rejecting defendant’s claim of self-defense, concluded that defendant did not act out of such fear alone.

The trial court was correct, therefore, in declining to instruct on imperfect self-defense.

Defendant next argues that the trial court erred in failing “to instruct the jury sua sponte on the legal meaning of ‘mutual combat.’ ” The trial court instructed the jury that “[t]he right of self-defense is only available to a person who engages in mutual combat if he has done all of the following; one, he has actually tried in good faith to refuse to continue fighting; two, he has clearly informed his opponent that he wants to stop fighting; three, he has clearly informed his opponent that he has stopped fighting; and, four, he ha[s] given his opponent the opportunity to stop fighting.” Defendant relies upon Ross to argue that the trial court was required to define the term “mutual combat,” but Ross does not so hold.

The defendant in Ross was convicted of aggravated assault and battery for punching the victim in the face, fracturing her cheekbone, after she slapped him during an argument. The trial court instructed the jury, over defense objection, that the defendant had not acted in self-defense if he had been engaged in “mutual combat” with the alleged victim.

During deliberations, the jury asked for a legal definition of “ ‘mutual combat,’ ” but the trial court refused, telling the jury “to rely on the ordinary meaning of those words.” (Ross, supra, 155 Cal.App.4th at p. 1036.) The Court of Appeal reversed the defendant’s conviction, ruling that “[tjhis left the jury free to suppose that any exchange of blows disqualifies both participants from claiming a right of self-defense” when in fact “the doctrine applies only to a violent confrontation conducted pursuant to prearrangement, mutual consent, or an express or implied agreement to fight.” (Ibid.) The Court of Appeal in Ross observed: “Like many legal phrases, ‘mutual combat’ has a dangerously vivid quality.

The danger lies in the power of vivid language to mask ambiguity and even inaccuracy. Here the jury was told that participation in ‘mutual combat’ conditionally bars the participants from pleading self-defense if either is prosecuted for assaulting the other.” (Ross, supra, 155 Cal.App.4th at p. 1043, fns. omitted.) “The trouble,” the court reasoned, “arises from ‘mutual.’ When, for these purposes, is combat ‘mutual’?

What distinguishes ‘mutual’ combat from combat in which one of the participants retains an unconditional right of self-defense?” (Id. at pp. 1043-1044.) The Court of Appeal concluded that the trial court erred in telling the jury to rely upon the common meaning because “the lay meaning of ‘mutual combat’ is too broad to convey the correct legal principle.” (Id. at p. 1044.) Ross reasoned that the problem with the common definition of “mutual” is that “any combat may be correctly described as ‘mutual’ so long as it is seen to possess a quality of reciprocity or exchange.

In ordinary speech, then, ‘mutual combat’ might properly describe any violent struggle between two or more people, however it came into being.

If A walks up to B and punches him without warning, and a fight ensues, the fight may be characterized as ‘mutual combat’ in the ordinary sense of those words.” (Ross, supra, 155 Cal.App.4th at p. 1044.) Ross held that “mutual combat” refers instead to “ ‘a duel or other fight begun or continued by mutual consent or agreement, express or implied. [Citations.]’ (Italics added.) In other words, it is not merely the combat, but the preexisting intention to engage in it, that must be mutual.” (Id. at p. 1045, fn. omitted.) Following the decision in Ross, the standard instruction was revised to add in brackets: “A fight is mutual combat when it began or continued by mutual consent or agreement.” (CALCRIM No. 3471 (rev.

Dec. 2008).) Ross did not hold that a trial court has a sua sponte duty to instruct the jury on the meaning of mutual combat, but rather that the trial court in that case erred by refusing the jury’s request to clarify the term. Ross relied upon

section 1138, which requires that “[a]fter the jury have retired for deliberation, ... if they desire to be informed on any point of law arising in the case, ... the information required must be given . . . .” The Court of Appeal noted that the defendant in Ross had not attacked the original jury instruction on mutual combat, stating: “We are more concerned with the court’s failure to elaborate on the instruction after the jury expressly asked the court for a ‘legal definition’ of mutual combat. Penal Code

section 1138 cast upon the court a ‘ “mandatory duty” ’ to ‘clear up’ the jury’s understanding.” (Ross, supra, 155 Cal.App.4th at p. 1047.) Ross held that the court was obligated to define the term “mutual combat” because the jury had “ ‘ “exhibited] confusion over the term’s meaning.” ’ ” (Ibid.) “When, as here, a phrase ‘is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request.’ ” (People v.

Rowland (1992) 4 Cal.4th 238, 270-271 [14 Cal.Rptr.2d 377, 841 P.2d 897].) As noted, although Ross discussed potential ambiguity in the term “mutual combat,” it did not hold that a trial court has a sua sponte duty to explain it to the jury. If defendant believed the instruction was incomplete or misleading, he “had the obligation to request clarifying language.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1192 [36 Cal.Rptr.2d 235, 885 P.2d 1] (Rodrigues).) Moreover, the jury did not request that the trial court clarify the meaning of the term.

The trial court did not have a sua sponte obligation to define “mutual combat.” Defendant also argues that the trial court erred in failing to instruct the jury sua sponte “on the legal concept of impossibility of withdrawal” or, in the alternative, that if the trial court had no sua sponte duty to instruct, then trial counsel was ineffective in failing to request such a jury instruction.

Without citation to authority, defendant asserts that “it was error for the trial court to have failed to instruct the jury that these doctrines [that a person who is the initial aggressor or is engaged in mutual combat] do not apply where a defendant, who might otherwise be deemed a mutual combatant based solely upon conduct occurring on an earlier occasion, is the victim of an attack that is so sudden and perilous that no opportunity exists to decline or to make known to his adversary his willingness to decline the strife.” As noted, there was no error in the trial court’s instructions regarding self-defense, and if defendant believed the instruction was misleading, he “had the obligation to request clarifying language.” (Rodrigues, supra, 8 Cal.4th at p. 1192.) Nor was trial counsel ineffective in failing to request clarifying language.

To establish ineffective assistance of counsel, “ ‘ “a defendant must first show counsel’s performance was ‘deficient’ because his ‘representation fell below an objective standard of reasonableness . . . under prevailing professional norms.’ ” ’ ” (People v.

Weaver (2001) 26 Cal.4th 876, 925 [111 Cal.Rptr.2d 2, 29 P.3d 103].) “ ‘[T]here is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” ’ ” (Ibid.) “In the usual case, where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions.” (Id. at p. 926.) For this reason, claims of ineffective assistance of counsel “are ordinarily best raised and reviewed on habeas corpus.” (People v.

Williams (2013) 56 Cal.4th 630, 690 [156 Cal.Rptr.3d 214, 299 P.3d 1185].) In the present case, “[t]he claim fails in the context of this direct appeal because the record does not reveal whether counsel had a plausible tactical reason for not requesting the instruction . . .” (People v. Carter (2003) 30 Cal.4th 1166, 1223 [135 Cal.Rptr.2d 553, 70 P.3d 981]), and defendant fails to show that there could be no conceivable reason for trial counsel not to request such a clarifying instruction. Defendant further contends that the trial court erred in failing to instruct the jury on ignorance or mistake of fact.

Specifically, he argues that a theory of mutual combat or any similar theory refuting his claim of self-defense could not apply “unless appellant recognized that his assailants were from the Cheap Boys gang.” Accordingly, he claims, the trial court should have instructed the jury that a mutual combat or similar theory was “inapplicable if appellant did not know his assailants were Cheap Boys.” In the alternative, defendant argues that if the trial court had no sua sponte duty to instruct, then trial counsel was ineffective in failing to request such a jury instruction. “A trial court’s duty to instruct, sua sponte, on particular defenses arises ‘ “only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.” ’ ” (People v.

Maury (2003) 30 Cal.4th 342, 424 [133 Cal.Rptr.2d 561, 68 P.3d 1].) Defendant testified in his own defense that he was in the backseat of the white Honda when the driver indicated that something was wrong. Defendant said he turned and looked through the rear window and saw someone pointing a shotgun at him. He ducked just as the person fired the shotgun and stayed down throughout the ensuing gun fight until the driver drove away from the scene.

Thus, defendant did not rely on a mistake of fact defense that he shot the victim in self-defense because he did not know that his assailants were from the Cheap Boys gang. Rather, defendant asserted that he did not shoot anyone. The fact that defendant testified on cross-examination that he did not recognize the person with the shotgun and did not know what gang that person was from does not constitute substantial evidence in support of a mistake of fact defense that he shot Pham because he did not know that Pham was a member of the Cheap Boys gang. 4.

Admission of Officer On’s testimony Defendant argues that the trial court erred in admitting the testimony of Garden Grove Police Officer Vincent On that a young man he saw flee from a car the officer had stopped looked similar to a photograph of defendant. On May 23, 1995, 17 days after Tuan Pham was killed, Garden Grove Police Officer Mike Smith saw “three Oriental men” enter a silver Ford Escort. Two of the men were later identified as members of the Nip Family. The third was a man five feet two inches to five feet five inches tall.

When Officer On pulled over the Ford Escort, the unidentified passenger ran away. A police dog later located a Colt .380-caliber revolver in some bushes near where the fleeing passenger was last seen. Ballistics tests showed that the Colt pistol had fired a bullet recovered from the car Tuan Pham had been driving when he was killed.

Officer On was unable to identify the fleeing passenger, saying only he was a “male Asian” “about five feet two inches to five feet four inches, thinly built, and he had a light complexion.” A short time later, Officer On was recalled as a witness and testified that “approximately 15 to 20 minutes prior” to stopping the vehicle, Officer On had seen a “picture of somebody named Lam Thanh Nguyen.” Officer On agreed, without objection, that based upon that picture, the fleeing passenger “looked similar ... to Lam Thanh Nguyen.” Officer also agreed that based upon that picture, he believed at the time that the fleeing passenger “could be Lam Thanh Nguyen.” Defendant objected, asserting “lack of foundation, as to whether or not this picture he is relying upon is in fact Mr.

Lam Nguyen.” The court overruled the objection. Even if the trial court erred in admitting this testimony, the error could not have affected the judgment. Officer On’s testimony that he believed at the time that the fleeing passenger could have been defendant had little probative value. Officer On did not positively identify defendant as the person who fled from the car or even testify that he currently believed that defendant was the person who fled from the car. He merely agreed that, at the time, he believed that the fleeing passenger could have been defendant. C.

Issues Related to the July 21, 1994, Shooting of Tony Nguyen 1. Sufficiency of evidence of attempted murder Defendant argues that the evidence was insufficient to convict him of the attempted murder of Tony Nguyen and the related charge of active participation in a gang on an aiding and abetting theory. The evidence showed that defendant was a passenger in the backseat of a car driven by a young woman named My Tran. A man named Nghia Phan was sitting in the front passenger seat.

At an intersection in Garden Grove, the car started following a car driven by Tony Nguyen, which carried several members of the Cheap Boys gang. At one point, the car in which defendant was riding passed Tony’s car, and defendant and the other passengers stared back at the car. The car in which defendant was riding then idled in the parking lot of a fast food restaurant, with its occupants “all like looking out and stuff.” After Tony’s car passed the restaurant, the other car pulled out of the parking lot and followed. Several blocks later, the two cars stopped next to each other at a stoplight.

When the traffic signal turned green, Phan shot Tony Nguyen in the neck before the car Phan was in drove away. A few days later, defendant went to the apartment of Yinh Kevin Lac, one of the Cheap Boys members who had been in the car driven by Tony Nguyen, and asked him, “What’s up with the cops?” Lac assured defendant that he had said nothing to the police but, at trial, identified defendant as the person in the other car who sat in the backseat behind the shooter.

Detective Nye, the prosecution’s gang expert, testified based on his experience interviewing “several thousand” Asian gang members in Orange County, including “somewhere between 40 and 50” Nip Family members, that Asian gangs tended not to be associated with a particular “turf.” Instead, they “go from place to place around the community hunting for their rivals.” Detective Nye explained that “if they’re not the shooter and they’re in the back seat” of the car, a gang member would be expected to serve as a lookout, and “[i]f something were to happen and they would have to bail out of the car, that member would be expected to back that person up.

Be it assault somebody, be it shoot somebody, be it take over the driving of the vehicle, whatever it may be.” Detective Nye also testified that at the time of the shooting, the Nip Family and the Cheap Boys were in a state of war, and members of both gangs were expected to be able to engage in gunfights with their rivals “at a moment’s notice.” “A ‘person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.’ ” (Peop

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