Trial court’s instruction, which improperly allowed the jury to consider defendants’ gang membership in determining guilt, was harmless error. Defendants were convicted of first degree murder and shooting at an occupied vehicle. Gang and gun enhancements were found true. On appeal defendants challenged jury instructions and the admission of gang evidence. Held: Affirmed. The trial court erred in instructing the jury with a modified version of CALCRIM No. 1403, that it could consider evidence of the defendants’ activities with other gang members in determining whether they were guilty of the charged murder. However, given the evidence, there was no due process violation and the error was harmless. Defense trial counsel were not ineffective for failing to correct the error because counsels’ actions did not prejudice the defendants.

The trial court did not err in instructing the jury that a perpetrator’s identity could be proved by extrajudicial statements. Defendant Carrillo claimed a violation of due process and the right to a jury trial because the trial court instructed the jury that although an accused could not be convicted based on his extrajudicial statements alone, the perpetrator’s identity could be proved by such statements (CALCRIM No. 359). The Court of Appeal agreed the instruction is deficient in that it could be interpreted to allow conviction on the basis of extrajudicial statements alone (because a juror could conclude that identity could only mean perpetrator). However, there was no due process violation or prejudice resulting from the instruction because the evidence strongly pointed to guilt and other instructions required a finding of all elements of the offenses beyond a reasonable doubt.

It was error to give CALCRIM No. 400 regarding unintended but foreseeable crimes where the prosecution did not rely on the theory of natural and probable consequences. Although the jury was instruction with CALCRIM No. 400 regarding unintended but foreseeable consequences, it was not given CALCRIM No. 403, defining natural and probable consequences. It was error to give CALCRIM No. 400 where the prosecution was not relying on natural and probable consequences, but harmless.

The admission of evidence regarding other gang shootings the same day as the murder was appropriate. The trial court admitted evidence that on the day of the murder, two other gang members were shot and killed to support the prosecution theory of a retaliatory motive for the charged killing. This ruling was correct because the evidence was admissible to show motive, i.e., a rivalry between gangs. Nor was it error to admit six predicate gang offenses to support the sentencing enhancement (Pen. Code, § 186.22, subd. (b)), as the statute requires a “pattern” of offenses.