People v. Vargas (91 Cal. App. 4th 506, 2001)

Opinion

PREMO, Acting P. J.

Defendant Edward Vargas was charged by grand jury indictment with conspiracy to commit murder, robbery, assault with a deadly weapon, arson, burglary, extortion, intimidation of witnesses, terrorist threats, escape, possession of concealable firearm by a convicted felon, and distribution of heroin, cocaine, phencyclidine (PCP), and methamphetamine (count 1), and the murder of Elias Rosas (Pen. Code, § 187; count 12). Count 1 alleged 96 overt acts. The indictment further alleged that counts 1 and 12 were committed for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further, and assist in criminal conduct by gang members, within the meaning of section 186.22, subdivision (b)(1).

The indictment was amended on My 8, 1996, to add the allegation that defendant had suffered two prior felony convictions.

Defendant pleaded not guilty and denied the enhancement allegations.

The jury found defendant guilty on both, and also found true the enhancement allegations.

The court sentenced defendant to a total prison term of 60 years to life, as follows: 25 years to life on count 1; a consecutive 25 years to life on count 12; and a consecutive 10-year enhancement for the two prior felony convictions.

We affirm.

Facts

A. Nuestra Familia

The Nuestra Familia (NF) is a prison gang that was founded in September 1968 by inmates at the California State Prison San Quentin (San Quentin). NF is a “cold-hearted gang” that commits murders, burglaries, extortion, and other crimes, including selling drugs to raise money for its members. Persons who testify against the NF are killed. Since its founding, NF has become “the most organized prison gang” in the California Department of Corrections (CDC). NF has also, since its founding, extended its influence outside of prison walls to the “streets.” NF has a written constitution. The governing body of NF is called the “Mesa.”

New NF members receive “schooling” on such subjects as how to construct weapons from found material, how to attack an enemy, and how to build the gang outside prison.

To be eligible for NF membership, a prisoner had to be a member of the “Northern Structure” (NS). NF membership is a lifetime commitment. Leaving the NF is, according to its constitution, an offense punishable by death. Of this lifetime commitment, Ronnie Shelton, an NF member who testified for the prosecution, stated: “Blood in blood out is not written literally into the constitution word for word, although between the lines it is definitely there, that you come into the organization with blood on your hands, preferably murder, if not, any other criminal acts and, for example, a deserter, traitor or coward who decides to defect and leave the organization, blood out is meaning to kill him.”

Shelton further testified that although the constitution provides for an automatic death sentence for a traitor (i.e., “an NF who decides to defect, drop out, of the organization”), in practice, there was discretion. Shelton said he could be “considered a traitor because I have defected and I’m testifying.” Asked if his defection meant a death sentence, Shelton testified: “Yes. If they ever had an opportunity to get near me they—pretty sure some would try to kill me, and perhaps maybe some wouldn’t. It’s not carved in stone to kill, because it’s upon the individual if he wants to proceed and pursue that hit or just back off, because maybe he just doesn’t want to do nothing, maybe he’s on the verge of dropping out.”

One objective of the ÑF is “to build the organization on the outside, become self-supporting, work with those in alliance, any and all illegal ventures to build the funds that can be utilized to take care of members behind the walls or drug deals on the streets.” Building the organization “on the streets” was important “[t]o promote the organization so others can recognize the powerfulness of the NF, which is basically the umbrella organization for the Northern Structure and, in a sense, directly, indirectly intimidate those with large quantities of drugs or anything that the NF can use to edify their own system.”

NF members on the street were expected to contribute money to the NF “bank,” which was the NF fund held for the benefit of the NF members. The contributions from individual members were to be made from dealing drugs or getting “contributions” from drug dealers. The NF members on the “street” were under the control of the Regional Security Department (RSD) to whom they were to report.

Murders, or “hits,” had to be sanctioned by higher authority. In NF terminology, approval for murder was called a “green light.” A NF member who killed another NF member had to be killed.

B. Northern Structure

The Northern Structure was formed by the NF “as a gang under them to take the heat off [the NF].” NF was superior to NS. NF and NS operated for the common purpose of raising money through crimes to help NF members who are in prison and their families. NF and NS did not use terms like “kill” or “murder” in discussing those acts; they used instead gang language, such as “dealt with” for murder, to conceal the subject of discussion from eavesdroppers.

C. Testifying NF Members

C-l. Ronnie Shelton

In May 1985, Shelton, while serving time at San Quentin, was recruited into the NF by NF member Michael Sosa. Shelton had been a member of the NS prior to his entry to the NF. In December 1990, Shelton became the RSD for San Jose.

After his indictment, Shelton decided to leave the NF and testify for the prosecution. Among the reasons Shelton cited for his decision were exhaustion and the fact that the NF wanted to control his defense. Shelton was facing the death penalty for the murders in which he participated. Shelton pled guilty to four first degree murders (i.e., the murders of Herrera, Valles, Apodaca, and Perez). For these murders, Shelton received a total prison term of 100 years to life. Shelton was 35 years old when he testified. Shelton said he did not expect to live long enough to be eligible for parole, and that, for his participation in the four murders, he deserved to be in prison for the rest of his life.

C-2. Louis Chavez

Chavez was recruited into NF from NS in 1989 at the Tehachapi State Prison (Tehachapi) by Joseph Hernandez and Vincent Arroyo. Chavez knew defendant while both of them were at Tehachapi. After the murders of Herrera, Rosas, and Baca, codefendant Lopez told Chavez that Chavez’s status in the NF was “on freeze” until Chavez brought them a “body,” i.e., committed a murder. Chavez said this meant that “if [he] didn’t take care of business, they [the NF] were going to take [him] out,” i.e., kill him.

Chavez agreed to testify for the prosecution on condition that he be prosecuted only for the crimes that he had actually committed.

C-3. Jerry Salazar

Salazar was recruited into the NS when he was 18 years old. Salazar should have been sent to the California Youth Authority (CYA), but because he had been paralyzed from a car accident that happened when he was 16, and had been confined to a wheelchair, Salazar could not be accommodated at the CYA; instead, Salazar was sent to the CDC. As part of the NF recruitment process, Salazar was given secret documents that explained the NS and contained the 14 “bonds,” or the “dos and don’ts of the Structure.” Salazar was active in the NS from 1987 to 1993.

Salazar joined the NF while he was in custody on the present charges. In 1993, while in a holding cell with Arroyo, Salazar was told by Arroyo that he (Arroyo) knew that Salazar had spoken with the San Jose Police Department, but that Salazar should not worry because he (Arroyo) was going to “let it slide because as long as [Salazar] didn’t give nobody up on a murder.” Salazar, in violation of the NF’s code of silence, had told the San Jose Police in 1992 that Guzman, Shelton, Villanueva, and codefendant Lopez were members of the NF.

After the 1993 conversation with Arroyo, Salazar overheard codefendant Trujeque tell codefendant Serna that they would let Salazar slide for a while and then kill him.

In 1993, Salazar, in a written plea agreement, agreed to testify for the prosecution with the understanding that the prosecution would decide whether his sentence was to be life without the possibility of parole, or 50 years to life.

C-4. Anthony Guzman

Guzman joined the NS while in prison in late 1987 or early 1988, after reading the gang’s 14 “bonds” and agreeing to live by them.

In August 1992, Guzman fled to Mexico to avoid arrest on the indictment. Guzman’s wife, who was also indicted, joined him, but later returned to the United States. Back in the United States, Guzman’s wife told Guzman in a telephone conversation that the NF wanted to kill him because they believed that he was cooperating with the district attorney. Guzman explained that he decided to testify for the government because people had died “for nothing”; he was facing the death penalty; his wife was indicted; and his children were upset.

C-5. Mendoza, Saldivar, Arroyo

Other NF members who testified for the prosecution were Carlos Mendoza and Roland Saldivar. NF member Vincent Arroyo pled guilty, pursuant to his plea agreement, but did not testify.

D. Conspiracy; Some Overt Acts

D-l. NF’s Hit List

While at Tehachapi, Chavez, Hernandez, and Pablo “Panther” Pena prepared an NF “hit” list, which was a list of persons who should be killed by the NF for various reasons. Among the people in the list were Tony “Little Weasel” Herrera and James “Jocko” Esparza, both for being gang dropouts, and Carlos Mejias, for having an NF member stabbed. Eli Rosas was not on that list.

When Chavez was paroled, he took the “hit” list with him. Chavez was to give the hit list to Cervantes, but did not. Instead, on July 25, 1991, Chavez gave the hit list, as well as an NF membership list, to his parole officer, E. J. Allen.

D-2. Chavez as Regional Security Director

While Chavez was in prison, he was ordered by NF Mesa member Hernandez to organize the NF’s San Jose regiment. Chavez was to work on the NF’s bank. Hernandez told Chavez to “organize it, you know, get it together,” and maintain it by “dealing drugs” and “robbing connections.” Chavez was to report by letter to Hernandez, who was still in prison, matters relating to the NF.

When Chavez was released on parole on April 19, 1990, he was made the RSD for San Jose. In violation of Hernandez’s “orders,” Chavez did not report to Hernandez, and did not execute his assignment as directed. Chavez did sell PCP, but did not put the proceeds into the NF “bank.”

D-3. Attempted Murder of Mejias

Chavez testified that Carlos Mejias was not a member of NF. In 1990, the NF wanted to kill Mejias because Mejias, while in prison, had ordered the murder of an NF member, which was carried out.

Salazar testified that at a barbecue prepared by his mother at Kelly Park in San Jose on July 4, 1990, Chavez and another NF member, Lencho Guzman, were present. Victor “Sleepy” Esquibel, who had no gang affiliation, was also present. Although not invited, Mejias showed up. Chavez, who knew that the NF wanted Mejias killed, ordered that Mejias’s murder be carried out. Salazar, upon Chavez’s direction, provided a knife. When Mejias left, Guzman and Esquibel left with him. Guzman and Esquibel returned about 30 minutes later, and told Salazar that Mejias had been killed. In fact, Mejias survived, and was treated for his wounds.

D-4. Shelton Replaces Chavez as RSD

Shelton testified that while he was in prison, he was instructed by the NF leadership to maintain, upon parole, “the spirit” of NF and “get things organized and make sure there was a regiment established.” Shelton was paroled to San Jose on May 27, 1990.

In September 1990, Andrew “Mad Dog” Cervantes, who was from the Stockton NF regiment, called a meeting of the San Jose NF members at the home of Lisa Quevas. Among the NF members present were Shelton, Chavez, and Lopez. Trujeque was not present when the meeting started, but arrived later. The meeting discussed subjects like weapons, who in San Jose had drugs they could steal, and the need for members to keep in communication with NF. Toward the end of the meeting, Cervantes promoted Shelton to RSD and demoted Chavez to second in command.

D-5. Lopez Became Second in Command

Lopez was paroled on September 17, 1990, and became second in command to Shelton by December 1990. Shelton testified that at the NF meetings held in December 1990, “[w]e would discuss who was in communication, who had weapons, drugs, people that needed to be killed, people that had drugs and we wanted perhaps for them to pay rent, a percentage to the organization, things of that nature.”

Lopez was arrested for parole violation in May 1991. While in jail, Lopez made Salazar RSD for San Jose. At a meeting at the house of Salazar’s mother in June 1991, Rosas, who had just been paroled and who was in charge of security while in prison, believed that he, and not Salazar, should be running the “streets.” Salazar told Rosas that Lopez had placed him in charge, “and that was it.”

When defendant was paroled in the spring of 1991, Lopez told Salazar from jail to meet defendant. In June 1991, defendant took over control of the NF in San Jose. Chavez told Trujeque that defendant was now in charge of the San Jose NF.

At Lopez’s direction, Salazar turned over to defendant the NF “bank” containing between $2,000 and $2,500. Defendant subsequently spent the money on beer, barbecues, and partying. Defendant made Salazar the head of security, which was the second highest position under the RSD.

Defendant was arrested in early July 1991. With defendant’s arrest, Salazar took over the “streets.” In mid-July 1991, Serna was paroled. Upon Lopez’s direction from jail, Serna took over the San Jose regiment from Salazar. Serna testified that Lopez had directed him “[t]o start taking care of business out there, and start building up the bank again, and to rob connections.”

D-6. Murder of Herrera

At an NF meeting on November 17, 1990, attended by, among others, Shelton, Lopez, and Trujeque, the NF decided to kill Herrera, a major drug dealer. Herrera had been on the NF hit list. John Blanco, a prominent San Jose drug dealer, who was present at the meeting, said that Herrera had told the police about his activities. Shelton, who had earlier opposed the killing of Herrera because Herrera was assisting the NF by dealing drugs, volunteered to carry out the murder, explaining that the RSD had to set an example.

On November 19, 1990, two days after the meeting, and before Herrera’s murder could be carried out, Villanueva, an NF member who was to participate in Herrera’s murder, was arrested. Villanueva called Shelton from jail, saying that he believed Herrera had told the police about him.

On November 20, 1990, Shelton met with Lopez to plan Herrera’s murder. Lopez was to obtain a gun and Betsy Spencer’s Chevette. Shelton, Lopez, and Trujeque discussed the need to kill witnesses. Trujeque suggested they dump Herrera’s body in a park.

Later that day, Shelton, Lopez, and Trujeque met Herrera and asked Herrera to get inside Spencer’s Chevette. When Herrera was inside the car, Trujeque displayed a .38-caliber revolver. Trujeque got out of the car, pointed the gun at Herrera, and pulled the trigger twice. The gun did not fire. Herrera got out and started to run. Lopez tackled Herrera. Shelton shot Herrera six times in the head. Trujeque fired his gun again. After more misfires, the gun went off.

Spencer testified she suspected her Chevette was involved in Herrera’s murder because on Thanksgiving Day, several days after Herrera’s murder, it was discovered on fire. Spencer testified that Lopez had borrowed the car and had later told her that the car was stolen from him when he parked it at a 7-Eleven store with the keys in the ignition.

D-7. First Attempt to Kill Jasso

The NF made two attempts to kill Robert Jasso, a bouncer at JP’s bar in San Jose, who was not a member of either the NF or the NS. The first attempt was in the spring of 1991, and the second was in the fall of that year.

In December 1990, an NF member reported to Shelton that at Herrera’s funeral, Jasso had said: “Fuck Lucky [Shelton], Fuck Lucky, I know [that] Lucky killed [Herrera].” Shelton took Jasso’s statements as a show of disrespect to him and the NF. Shelton directed Lopez, his second in command, to have Jasso killed, adding that he wanted all NF members to know that Jasso was to be killed. Shelton said that to let Jasso’s disrespect to the NF pass would cause diminution of the NF’s power “[a]nd people would just not be willing to cooperate with drug transactions on a respectful level.” Jasso’s murder was further discussed at the NF meetings in December 1990 and April 1991.

Lopez, Robert Rios, and Jason Vasquez looked for Jasso in late winter or early spring to kill him. However, when they found Jasso, they could not kill him because there were police in the area.

D-8. Murder of Valles

Larry Valles was a PCP dealer. At one NF meeting, the NF discussed the need for Valles “to kick down drugs to the gang.” It was decided that Valles needed to be “jacked up.”

Shelton subsequently arranged a meeting with Valles. Shelton arrived first. After Valles arrived, Lopez also arrived. Out of Valles’s presence, Shelton and Lopez discussed the extortion they were going to make. Valles told Shelton and Lopez that he (Valles) did not pay “rent.” Shelton shot Valles between the eyes.

D-9. Attempted Murder of Urango

Lopez authorized the murder of Alphonso “Huero” Urango because Urango “disrespected” the NF by not returning two guns, which belonged to the NF. Urango had said that he would trade the guns for a gram of PCP. Salazar testified that Urango’s offer was “an automatic green light.” Salazar talked with defendant about Urango’s murder. In late June, or early July 1991, NF members, including Salazar, Mendoza, and defendant went to Urango’s apartment to kill him. When they arrived, defendant told Saldivar and Mendoza to go to the apartment door, knock on it, and shoot Urango when he opened the door. When Saldivar and Mendoza knocked on the door, Urango’s girlfriend, who was eight months pregnant, answered the door. Saldivar and Mendoza did not have the “guts” to kill Urango under the circumstances. No further attempts on Urango’s life were made.

D-10. Murder of Rosas

Rosas was a member of the NS.

On December 31, 1983, two masked men broke into the home of Petra Gonzalez, who was the mother of Rosas’s girlfriend. Rosas went to Gonzalez’s defense.

After the Gonzalez robbery, and while Pena was in prison with Chavez, Pena told Chavez that he (Pena) had robbed Rosas’s home, taking drugs. Pena further told Chavez that he (Pena) believed that Rosas had “snitched on him.” Chavez stated that even though Rosas was the victim, Rosas should not have told the police because Pena was a member of the NF at the time of the robbery, and Rosas was not.

In late June 1991, after defendant was paroled, defendant discussed the Rosas matter with Salazar. Defendant told Salazar that there was a “green light” on Rosas because Rosas had “snitched on Pablo Pena, Panther.” However, defendant wanted to get some confirming “paperwork” first because if he (defendant) was wrong and Rosas was killed, he (defendant) would be killed. Defendant told Salazar that the NF was not to hunt down Rosas to kill him, but that if an NF member should run across him, Rosas should be killed.

On the night of Rosas’s murder, Chavez received a telephone call from Albert Reveles and Tim Hernandez. Hernandez told Chavez that he was at a home where Rosas was “running his mouth” about Chavez, saying that Chavez was to be “hit” by the NF. Hernandez asked Chavez what should be done to Rosas, saying he wanted to kill Rosas. Chavez told Hernandez he did not have the authority to authorize the murder of Rosas because defendant was in charge.

Chavez contacted Salazar, who set up a three-way telephone conference with defendant. In that telephone conference, defendant approved the murder of Rosas, saying: “Do what you got to do.” Defendant also told Chavez that he (Chavez) had the authority to call the hit.

Hours later, Hernandez called Chavez to report that Rosas had been killed.

Subsequently, defendant told Shelton at San Quentin that Rosas was behind “some drug deal that some drugs were involved and [Rosas] supposedly had snitched on [Pena] who’s also an N.F. member.” Defendant admitted to Shelton that he [defendant] had called the Rosas “hit.”

D-ll. Order to Kill Esparza

Esparza was on the NF “hit” list that Chavez and Pena had compiled in 1990. Salazar testified that defendant had ordered him to kill Esparza. Defendant told Salazar that Esparza was in trouble because Esparza was claiming that he was a member of the NS, and he was not. Salazar did not carry out defendant’s order because he believed that defendant had a “personal thing” on Esparza concerning defendant’s girlfriend.

D-12. Plot to Kill Chavez

Shelton testified that after conferring with Lopez, he (Shelton) decided that Chavez should be killed. Lopez had written Shelton that Chavez’s “status was on freeze until he (Chavez) [brought] a body to [the organization],” meaning until he “killed somebody” and he proved himself. In August 1991, Shelton began plotting Chavez’s murder.

In September 1991, while Shelton and defendant were in prison, Shelton asked defendant why Chavez was not dead yet. Defendant told Shelton that he wanted to kill Chavez himself because he (defendant) had not yet committed a murder for the NF.

Chavez testified that “Smiley Joe” Ramirez had told him that the NF wanted to kill him (Chavez).

D-13. Murder of Esteban Guzman

Salazar testified that in July 1991, Serna called to say that he was bringing drugs for Salazar to sell. When Serna arrived, he told Salazar that the drugs belonged to a “border brother” (i.e., Mexican) whom he robbed. Serna said he shot the drug owner with a shotgun and left no witnesses. The victim turned out to be Esteban Guzman.

Anthony Guzman testified that after the murder of Esteban Guzman, Serna told him that he (Serna) killed Esteban because Esteban was a member of a rival gang. Esteban had died from a shotgun wound to his chest.

D-14. Murder of Baca

Salazar testified that Serna had told him that he (Serna) had killed Marcos “Puppet” Baca with a .22-caliber revolver because Baca was a police informant.

Anthony Guzman also testified that Serna had admitted to him that he and two others had killed Baca with a .22-caliber revolver because Baca “was no good [and] that he was giving up people in the county jail.” Guzman, who was superior to Serna in the NF, told Serna not to kill anymore because he (Guzman) did not want to be responsible.

D-15. Murder of Apodaca

Sheila Apodaca was, at one time, Lopez’s girlfriend. On December 30, 1990, Shelton met Apodaca. The next day, Apodaca gave Shelton a ride. During the ride, Apodaca brought up the subject of Herrera’s murder. Apodaca said that she believed Shelton and the others were crazy. Shelton told Lopez about his (Shelton’s) conversation with Apodaca. Lopez told Shelton not to worry because Apodaca did not know what was going on.

When Lopez was in prison, he wrote Shelton saying that he thought Apodaca might tell the police what she knew about the Herrera and Valles murders, and that Apodaca should be killed.

On August 26, 1991, at an NF meeting at Guzman’s apartment, Apodaca’s murder was discussed. Shelton explained that he, Serna, and Salazar all wanted to kill Apodaca. The next day, Shelton and Guzman were arrested. From the county jail, Shelton sent Lopez a message saying that the Perez and Apodaca murders were still on.

Salazar testified that Apodaca was to be killed because Lopez had learned that Apodaca was going to tell the police about Lopez’s involvement in the Herrera murder. Lopez called Apodaca a “snitch bitch.”

Subsequently, Salazar arranged a meeting with Apodaca at Mt. Pleasant High School. Salazar then told Serna and Trujeque to proceed to the meeting place.

Salazar observed Serna handling a .357-caliber revolver to make sure that there were no fingerprints on the bullets. When Serna and Trujeque went to the appointed place, Salazar stayed behind, nervous from knowing that he had set up Apodaca to be murdered. When Serna and Trujeque returned, Serna told Salazar that he (Serna) had shot Apodaca twice in the head.

D-16. Murder of Perez

Lopez told Shelton that Ray “Chocolate” Perez was giving him a hard time, was being irresponsible, and was losing drugs. Lopez said that Perez, who was not an NF member, was disrespecting him. Lopez wanted to kill Perez, but Shelton asked Lopez to wait. When Lopez was in prison, Lopez wrote Shelton saying that Perez should be killed because Perez was talking to law enforcement. Perez’s murder was discussed at the same NF meeting in which Apodaca’s murder was discussed.

On August 29, 1991, Salazar met with Trujeque and Mendoza. Salazar volunteered to lure Perez to a meeting, and accompanied Trujeque and Mendoza to that meeting. When they arrived at the meeting place, Perez came up to the window of their car and spoke with them. When Perez got in the car, the foursome drove off. When the car stopped, Salazar and Mendoza shot Perez. Salazar explained this was his first murder and he committed it for the gang.

D-17. Second Attempt to Murder Jasso

Salazar testified that Shelton and Lopez authorized the murder of Jasso because Jasso was “disrespecting the NF.” Jasso was a close friend of Herrera and was “kind of pissed off because the NF killed [Herrera].”

In late August and early September 1991, Santos “Bad Boy” Burnias, an NF member, called Salazar, who was in Utah, and told him to return to San Jose because the NF had to “take care” of Jasso. When Salazar returned, he, Burnias, and Joey Gonzalez went to JP’s Bar in Gonzalez’s jeep. When they saw Jasso, Burnias got out of the jeep, saying he would be back. Within five minutes, Burnias was back. Burnias told Salazar and Gonzalez that he had just shot Jasso three times.

Burnias later admitted to Shelton that he had shot Jasso, saying he was “just taking care of business.”

Jasso survived the assassination attempt. He was treated for gunshot wounds to his shoulder and head.

Contentions

Defendant contends:

1. The prosecution waived any claim that defendant had violated his plea agreement when it failed to bring its motion to vacate the plea agreement until 16 months after it had been entered into, and almost six months after defendant’s second statement to the prosecution which was the supposed trigger for the motion; and the trial court therefore erred and deprived defendant of his state and federal constitutional rights to due process by granting the prosecution’s untimely motion to vacate the plea agreement.

2. Defendant’s sentence of 60 years to life violates the federal constitutional protection against cruel and unusual punishment given the improper vacating of his plea agreement under which he would have served only five years.

3. Trial counsel deprived defendant of his Sixth Amendment right to effective assistance of counsel during the proceedings on the motion to vacate his plea agreement by failing to fully investigate the likelihood of defendant passing a polygraph examination prior to stipulating to the admission of the results of a polygraph examination.

4. The trial court violated defendant’s Sixth and Fourteenth Amendment rights by precluding defendant from cross-examining two prosecution witnesses and conducting direct examination of one potential defense witness regarding the killing of Farfan, which would have elicited evidence that the prosecution pursued a flawed policy of presenting unreliable accomplice witnesses against defendant and that a critical witness against defendant was unworthy of belief.

5. The trial court violated defendant’s Sixth and Fourteenth Amendment rights to confrontation and due process by unduly restricting the scope of cross-examination of Kracht regarding the disposition of a case against Pena, which would have shown that defendant had no motive to agree to kill Rosas and thus prejudiced his defense against the charges of murder and conspiracy to commit murder.

6. The trial court violated defendant’s state and federal constitutional rights to due process and an impartial jury trial by refusing to instruct the jury on the lesser included offense of second degree murder with respect to the conspiracy to commit murder in count 1 and the murder of Rosas in count 12.

7. The trial court deprived defendant of his state and federal constitutional rights to a trial by jury and due process by failing to instruct the jury to determine the essential factual question whether one or multiple conspiracies existed.

8. Defendant was deprived of his Sixth and Fourteenth Amendment rights to a jury trial and due process by the trial court’s refusal to instruct the jury to unanimously agree on the facts underlying the elements of the conspiracy, an error which is reversible because it is impossible to determine whether the jury unanimously agreed as to whom defendant conspired to murder.

9. Defendant was deprived of his Sixth and Fourteenth Amendment rights to due process and notice of the allegations that he conspired to murder or assault both Urango and Esparza, where he did not learn of these allegations until four months into trial.

10. Defendant’s conviction for conspiracy to commit murder violates state and federal due process guarantees because a conviction for conspiracy to kill one of various persons without agreement upon who was to be killed is unconstitutionally vague and generic.

11. Defendant’s conviction for conspiracy to commit murder must be reversed for constitutionally insufficient evidence because this court cannot determine whether or not the jury found him guilty of conspiring to kill a person for whom there is constitutionally insufficient evidence in support of conviction.

12. The trial court violated defendant’s state and federal constitutional rights to due process and a fair trial by jury by refusing to give a legally correct defense-requested jury instruction which was supported by the evidence and which pinpointed the defense theory of the case.

13. The prosecutor committed prejudicial misconduct and deprived defendant of his state and federal constitutional rights to due process and a fair trial by making an inflammatory comment and an ungrounded attack on defense counsel in closing argument.

14. Defendant was improperly sentenced to consecutive terms of 25 years to life for both the Rosas murder and the conspiracy to commit murder, in violation of section 654.

Discussion

Vacation of Plea Agreement

Defendant contends the prosecution waived any claim that defendant had violated his plea agreement when it failed to bring its motion to vacate the plea agreement until 16 months after it had been entered into, and almost six months after defendant’s second statement to the prosecution, which was the supposed trigger for the motion; and the trial court therefore erred and deprived defendant of his state and federal constitutional rights to due process by granting the prosecution’s untimely motion to vacate the plea agreement. We disagree.

On March 23, 1993, defendant entered into a plea agreement with the prosecution, which provided in pertinent part: “(1) [Defendant] will enter a plea of guilty to count 22 of the indictment in this case (gang-participation, a violation of Penal Code section 186.22 [subdivisions] (a) [and] (c)) and will admit allegations (to be added to the indictment) of having served two separate prior prison terms within the meaning of Penal Code section 667.5 [subdivision] (b). fl[] If, at the time of sentencing, [defendant] has fully complied with the terms and conditions of this agreement, the People will move to dismiss the conspiracy charge (Count 1) and the murder charge (Count 12), and [defendant] will be sentenced to the aggravated term of three years on Count 22 (gang-participation) plus one year for each prior prison term, for a total of five years; ffl] . . . [H] (4) Sentencing shall not occur until after the completion of any trial or trials for any of [defendant’s] co-defendants in this case. [%| . . . [^] (6) [Defendant] shall truthfully disclose all information with respect to the activities of himself and others concerning all matters about which agents or representatives of The People inquire of him. [H] (7) [Defendant] shall cooperate fully with law enforcement authorities in their investigation and prosecution of this case . . . . R[] (8) [Defendant] shall truthfully testify at any trial or retrial or other court proceeding with respect to any matter related to this case about which The People may request his testimony or pursuant to order of the court. fl[] (9) [Defendant] must at all times give complete and truthful information; should [defendant] give false, incomplete or misleading information or testimony, or otherwise violate any provision of this agreement, this agreement shall be null and void and [defendant] shall thereafter be subject to prosecution for any criminal violation of which The People have knowledge including perjury. Any such prosecution may be premised upon any information provided by [defendant] and such information may be used against him; such a prosecution may not proceed, however, unless the Court, after an independent review of the relevant facts, finds that there has been a material violation of this agreement by [defendant].”

On July 13, 1994, the prosecution moved to vacate defendant’s guilty plea and the plea agreement on the ground that defendant had violated the terms of the plea agreement “by providing to the prosecution material information, which is untrue.” Defendant opposed the motion, arguing laches and specific performance by defendant.

On December 21, 1994, the court, following a hearing, granted the People’s motion on the basis of its finding that defendant had willfully violated the terms of the plea agreement. The court stated: “And I will rule as follows: In evaluating the evidence in this case if the only evidence that was before the court was the two statements made by the defendant I would certainly come to the conclusion that the statements were inconsistent. But based upon that evidence alone I don’t believe I could conclude and I wouldn’t have concluded that there was a willful attempt on the part of the defendant to violate the witness agreement that he entered into. HQ But in addition to that evidence that was presented during the course of the hearing we had the testimony of agent Hilley who testified that the defendant, in effect, failed the polygraph examination as it related to two crucial questions. And yes, I did follow his testimony as to how he arrived at the conclusion that if one is deceptive as to one question then the conclusion is that he would be deceptive as to all of the questions, and I did understand his testimony in that regard. But, nevertheless, his testimony was the defendant was deceptive as it related to questions posed to him about material matters. HI] Additionally, there was the testimony of the defendant which the court considered—could consider as well and I did. My evaluation of the defendant’s testimony was that he was not credible in many respects. He almost conceded withholding certain things, not quite, but almost. And I was left with the impression that he was less than candid on the witness stand because of some threat that had been made to him or probably more likely members of his family that he was unwilling fully to go into. And that was my impression as to what may well be the reason for the defendant’s inconsistent statements made to the prosecution during the course of [the] two occasions when he was questioned. HI] Therefore, my conclusion is that there was a willful violation of the witness agreement in this case and that that willful violation amounts to material evidence that relates to this particular case. HQ Specifically, I find that he willfully violated paragraph 6 of the witness agreement which required him [to] truthfully disclose all information with respect to the activities of himself and others concerning all matters about which agents or representatives of the People inquire of him. HQ I also find that he willfully violated paragraph 9 which required him to at all times give complete and truthful information. HQ Therefore, the witness agreement and the disposition entered into by the defendant is now set aside. The original charges are reinstated.”

The power of the court to set aside a plea bargain on the ground of breach by a defendant of its terms is beyond question. “ ‘ “A plea agreement is, in essence, a contract between the defendant and the prosecutor to which the court consents to be bound.” ’ ” (People v. Armendariz (1993) 16 Cal.App.4th 906, 911 [20 Cal.Rptr.2d 311].) “When a guilty plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement.” (People v. Walker (1991) 54 Cal.3d 1013, 1024 [1 Cal.Rptr.2d 902, 819 P.2d 861].)

As stated in People v. Collins (1996) 45 Cal.App.4th 849, 863-864 [53 Cal.Rptr.2d 367]: “The reciprocal nature of a plea bargain agreement mandates that either party to the agreement be entitled to enforce the agreement in a situation where the party is deprived of the benefit of the bargain. [Citations.] . . . Failure to hold a defendant to the terms of his bargain would undermine the integrity of the judicial process. In this case, defendant’s breach of his bargain included testifying falsely, conduct which is manifestly corrosive of our system of justice. There is no question that courts have inherent authority to protect the integrity of the judicial process. [Citation.]”

We note that here the trial court, in granting the prosecution’s motion, did not address defendant’s laches argument. Yet, defendant did nothing to secure a ruling on that specific issue. Defendant’s failure precludes him from raising the issue on appeal. “Because defendant failed to obtain a pretrial ruling on the issue and did not pursue his objection at trial, we will not address his contention, for it is procedurally barred. [Citation.]” (People v. Roberts (1992) 2 Cal.4th 271, 297 [6 Cal.Rptr.2d 276, 826 P.2d 274].)

In any event, defendant’s laches and waiver argument is without merit. The record discloses that defendant made two statements following the plea agreement. The first statement was made on the same date as the plea agreement, March 23, 1993. The second statement was made 10 months later on January 26, 1994. The prosecution’s motion to vacate defendant’s plea agreement was filed on July 13, 1994, six months after the second statement. Defendant complains that the six-month delay in the filing of the prosecution’s motion to vacate the plea agreement was “in effect a ratification and acceptance of [defendant’s] statements,” and was “tantamount to waiver.” We do not think so.

First, “[t]he prosecution of criminal offenses on behalf of the People is the sole responsibility of the public prosecutor. [Citations.] [ft The prosecutor ordinarily has sole discretion to determine whom to charge, what charges to file and pursue, and what punishment to seek. [Citation.] ... An individual exercise of prosecutorial discretion is presumed to be ‘ “legitimately founded on the complex considerations necessary for the effective and efficient administration of law enforcement. . . .” ’ [Citations.] [ft Exclusive prosecutorial discretion must also extend to the conduct of a criminal action once commenced. ‘In conducting a trial a prosecutor is bound only by the general rules of law and professional ethics that bind all counsel.’ [Citation.] The prosecutor has the responsibility to decide in the public interest whether to seek, oppose, accept, or challenge judicial actions and rulings. These decisions . . . involve ‘the complex considerations necessary for the effective and efficient administration of law enforcement.’ ” (Dix v. Superior Court (1991) 53 Cal.3d 442, 451-452 [279 Cal.Rptr. 834, 807 P.2d 1063], original italics.)

Here, moving to vacate defendant’s guilty plea on the basis of defendant’s breach of the terms of the plea agreement was effectively exercising prosecutorial discretion to charge and prosecute defendant, and to conduct that prosecution in the manner deemed best “ ‘for the effective and efficient administration of law enforcement.’ ” (Dix v. Superior Court, supra, 53 Cal.3d at p. 452.) Given the complexity of this case, six months was not an unreasonable time for the prosecution to decide to hold defendant to his bargain and require defendant to suffer the consequences of his breach of its terms.

Second, the plea agreement implicitly authorized the prosecution to move to vacate defendant’s plea for breach by defendant of its terms at any time prior to the conclusion of the trial. This implicit authority is clear from the language of the plea agreement, which inter alia provided that “[sentencing shall not occur until after the completion of any trial or trials”; defendant “shall truthfully disclose all information with respect to the activities of himself and others concerning all matters about which agents or representatives of The People inquire of him”; defendant “shall cooperate fully with law enforcement authorities in their investigation and prosecution of this case”; defendant “shall truthfully testify at any trial or retrial or other court proceeding with respect to any matter related to this case about which The People may request his testimony”; and defendant “must at all times give complete and truthful information.”

Defendant’s obligation under the agreement to tell the truth and to cooperate fully with the prosecution was clearly continuing. That obligation was to last throughout the entire course of the trial. Consequently, the prosecution was not required to act immediately, and piecemeal, to void the plea agreement upon any particular breach. The prosecution had discretion under the agreement to look at how a particular breach might affect the entirety of its trial strategy, and to act only when it was convinced that voiding the plea agreement did not jeopardize its ability to prove its case. The prosecution could choose to act at any time within the time frame of the agreement, which was, at the very least, the full course of the trial.

In any event, the six-month delay, if a delay it was, did not prejudice defendant. Defendant’s trial did not start for over two years after his plea agreement had been set aside. Defendant had, therefore, sufficient time to prepare for his defense.

Defendant’s citation to People v. Miller (1992) 6 Cal.App.4th 873 [8 Cal.Rptr.2d 193] and In re Ronald E. (1977) 19 Cal.3d 315 [137 Cal.Rptr. 781, 562 P.2d 684], is misplaced. Neither case involved vacating a plea agreement for violation by the defendant of its terms.

We conclude the prosecution’s motion to vacate defendant’s plea agreement was not barred by laches or waiver, and that the trial court did not err in vacating defendant’s plea agreement.

Cruel and Unusual Punishment

Defendant contends his sentence of 60 years to life violates the federal constitutional protection against cruel and unusual punishment given the improper vacating of his plea agreement under which he would have served only five years. The contention is without merit.

Defendant concedes that “a sentence of 60 years to life for murder and conspiracy is not per se cruel and unusual.” Defendant argues merely that because the vacation of his plea agreement was invalid, he should have been entitled to receive the benefit of his bargain, which was a sentence of five years, and, therefore, the 60-years-to-life sentence imposed on him was cruel and unusual.

Because we have determined that the trial court committed no error in setting aside defendant’s plea bargain, defendant’s cruel and unusual challenge also fails.

Ineffective Assistance of Counsel

Defendant contends trial counsel deprived him of his Sixth Amendment right to effective assistance of counsel during the proceedings on the motion to vacate his plea agreement by failing to fully investigate the likelihood of his passing a polygraph examination prior to stipulating to the admission of the results of a polygraph examination. We disagree.

It has repeatedly been held that “ ‘[a] convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components.’ [Citations.] ‘First, the defendant must show that counsel’s performance was deficient.’ [Citations.] Specifically, he must establish that ‘counsel’s representation fell below an objective standard of reasonableness . . . under prevailing professional norms.’ [Citations.]” (People v. Ledesma (1987) 43 Cal.3d 171, 216 [233 Cal.Rptr. 404, 729 P.2d 839].) “In addition to showing that counsel’s performance was deficient, a criminal defendant must also establish prejudice before he can obtain relief on an ineffective-assistance claim.” (Id. at p. 217.) “Errorless counsel is not required . . . .” (People v. Williams (1988) 44 Cal.3d 883, 937 [245 Cal.Rptr. 336, 751 P.2d 395].)

Moreover, “a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.” (Strickland v. Washington (1984) 466 U.S. 668, 697 [104 S.Ct. 2052, 2069, 80 L.Ed.2d 674].)

Here, after the prosecution had filed its motion to set aside the plea agreement, defendant’s counsel and the prosecutor stipulated that defendant would submit himself to a polygraph examination by an expert acceptable to both parties, and that the results of the test would be submitted to the court to aid it in its determination of whether defendant had committed a material breach of the plea agreement. The defense and the prosecution then mutually agreed on FBI special agent Ron Hilley to conduct the polygraph test on defendant. Hilley concluded that defendant was deceptive in his answers to the four relevant questions that were related to a particular inconsistency in defendant’s statements.

In its order setting aside defendant’s plea agreement, the court stated that it relied in part on Hilley’s testimony.

In arguing ineffective assistance, defendant asserts that “reasonably competent counsel would not stipulate to the admission of polygraph results without first conducting some investigation to ensure that the stipulated evidence would be favorable to [defendant].” (Original underscore.) Defendant points to no place in the record, however, which would indicate that trial counsel had agreed to the stipulation relating to defendant’s polygraph examination without first reasonably informing himself of the probable outcome of such an examination. Defendant bears the burden of showing to this court that trial counsel’s agreement to the polygraph examination stipulation was not an informed decision. As stated in People v. Mitcham (1992) 1 Cal.4th 1027, 1058 [5 Cal.Rptr.2d 230, 824 P.2d 1277]: “When a defendant on appeal makes a claim that his counsel was ineffective, the appellate court must consider whether the record contains any explanation for the challenged aspects of the representation provided by counsel. ‘If the record sheds no light on why counsel acted or failed to act in the manner challenged, “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,” [citation], the contention must be rejected.’ [Citations.]”

On this record, defendant has not carried his burden of showing that trial counsel’s decision was not informed. Presuming an informed decision by trial counsel, we must further presume that trial counsel’s decision was a tactical choice which we cannot, for such lack of showing, review in this appeal. '

Noncharged Homicide of Farfan

Defendant contends the trial court violated his Sixth and Fourteenth Amendment rights by precluding him from cross-examining two prosecution witnesses and conducting direct examination of one potential defense witness regarding the killing of Farfan, which would have elicited evidence that the prosecution pursued a flawed policy of presenting unreliable accomplice witnesses against defendant and that a critical witness against defendant was unworthy of belief. The contention is without merit.

Salazar, Arroyo, and Mendoza, who were indicted with defendant and other codefendants, entered guilty pleas. The prosecution thereafter called Salazar and Mendoza to the witness stand, but did not call Arroyo.

Defendant joined a defense motion to allow the defense to cross-examine Salazar regarding the Farfan murder. In particular, the defense wanted to show to the jury that Salazar had made the statement that Arroyo had authorized Farfan’s murder, and that Arroyo had denied authorizing Farfan’s murder. The attorney representing codefendant Trujeque told the court at a bench conference that “[o]ne of the two of them is lying. And, therefore, there is a problem with the deals that they’ve cut with the prosecution.” The prosecution objected that the proffered evidence constituted impeachment on a collateral matter. The court told the defense that if it decided to bring up the Farfan murder, which happened after the indictment in this case, it did so at its own risk if the evidence turned out to be inadmissible because it would require an admissibility hearing.

On February 7, 1997, prior to Salazar’s testimony, the court took up the Farfan issue again. The prosecution argued that evidence relating to the Farfan murder would be admissible only if Arroyo testified, since evidence of Salazar’s participation in that murder would then be admissible as a prior bad act for impeachment; moreover, if Salazar’s testimony was the result of a plea bargain in which the murder of the Farfan case was dismissed, “then that could be presented also as an issue, although I would say parenthetically that his testimony [was] not predicated on the dismissal of the Farfan case.”

The defense agreed with the prosecution that evidence of the Farfan homicide was admissible only if Arroyo testified. However, counsel for codefendant Trujeque expressed his intention to attack Salazar’s credibility with the Farfan homicide because Salazar’s and Arroyo’s statements respecting that homicide contradicted each other. The court asked Trujeque’s attorney if he intended to call Arroyo as a witness if the prosecution did not call Arroyo. Trujeque’s attorney responded he would do so if Salazar testified that Arroyo had authorized Farfan’s murder. The prosecution stated that it had been informed by Arroyo’s attorney that if the defense attempted to call Arroyo as a witness, Arroyo would assert his right against self-incrimination, adding that if Arroyo testified the prosecution would not grant Arroyo immunity. The court stated it was disposed to allow the defense to ask Salazar questions relating to the Farfan murder.

On March 17, 1997, just prior to the commencement of Salazar’s cross-examination, the defense brought up again the issue of whether it could ask Salazar questions on the Farfan homicide and asked the court for a hearing on the issue. The prosecution restated its intention not to call Arroyo as a witness, and further told the court that Arroyo’s attorney had informed her that Arroyo “will take the Fifth and will not testify if called as a witness by the defense.”

The court did not rule on the issue, stating instead that it “would like to see how the situation develops,” and inquiring of the defense what it intended to ask Salazar. Trujeque’s attorney responded that he would ask Salazar if he (Salazar) had ordered Farfan’s murder. If Salazar answered he did not, he (Trujeque’s attorney) would then ask Salazar if Arroyo did. The court stated: “Well, let me indicate this, Mr. Salazar has made it clear in no uncertain terms he’s testifying truthfully and turned his life around. If you want to impeach his claim of truthfulness by asking him whether he was involved in the Farfan murder, you can. If you, and, I take it, if you do, that’s a prerequisite to impeaching him, assuming that he says he was not. ffl] As far as going any further with this witness as to who ordered it and that sort of thing, that’s premature. That sounds like you’re attempting to set up impeachment of Arroyo. He has not testified yet. We don’t know if he’s going to testify. Should he testify, we can revisit the issue.”

On March 18, 1997, during Salazar’s cross-examination, the defense explained its theory of admissibility, which was that the Farfan homicide was an impeachable offense as to Salazar, and would further show that Salazar had a reason not to be truthful about his role in that homicide because his plea agreement was conditioned upon his noninvolvement in it. The court replied that if it let in any mention of the Farfan homicide, it would let in all facts surrounding that homicide.

Defendant joined the motion to allow Salazar to be examined about the Farfan homicide.

The court denied the defense request, stating: “[M]y ruling at this point subject to counsel persuading me differently is that that subject is not to be covered in cross-examination. I will sustain the [Evidence Code section] 352 objection. In so doing I’m considering the amount of time that we would have to devote to the Farfan matter. But more than that, I’m also considering everything I’ve heard in cross-examination so far, and I used the term ammunition, it’s not a legal term. There’s been a wealth of evidence that has been used so far to attack the credibility of this witness, and what has occurred so far during cross-examination. And it seems to me the Farfan matter isn’t something crucial. So I find the relevancy to be substantially outweighed by undue consumption of time and confusing the issues.”

On March 19, 1997, the court allowed the parties to discuss the Farfan homicide issue further. The defense made an offer of proof that included the following: (1) Salazar’s ex-wife became romantically involved with Farfan in the late summer of 1992, and the two lived openly together in January 1993; (2) Salazar knew that his ex-wife was living with Farfan; (3) Salazar stated in his June 23 statement to the police that while he was in a holding cell in early 1993, he heard Arroyo say that a “green light” should be placed on Farfan because Farfan had cheated the NF out of its money; (4) in September 1993, Farfan told parole agent E. J. Allen that his (Farfan’s) life was in danger because he was dating Jessica Salazar and another woman; (5) Farfan was murdered on September 27, 1993; (6) Salazar met Louis Oliverez in 1989; (7) on October 7, 1993, Nancy Hermocillo told the police that on September 23, 1993, which was four days prior to Farfan’s murder, she was at a friend’s house and overheard a telephone conversation between Salazar and Oliverez wherein Salazar had asked Oliverez to kill Farfan; and (8) Salazar’s plea agreement was conditioned upon Salazar’s noninvolvement in the Farfan murder.

On March 26, 1997, the court once more denied the defense motion, reasoning that the prosecution did not intend to call Arroyo as a witness. The court admitted that the proffered evidence was relevant, but found it inadmissible under Evidence Code section 352 because admission of the evidence would confuse the jury and consume an undue amount of time. The court explained: “The issue of the admissibility of testimony concerning Paul Farfan, as I recall, arose in the context of a discussion at the bench where it was anticipated that Mr. Salazar and Mr. Arroyo would both testify. And the offer of proof was that their testimony would conflict as it relates to the subject of the green light on Paul Farfan, thus establishing that someone’s not telling the truth, whether it’s Mr. Salazar or whether it is Mr. Arroyo. And at that time, as I recall, I indicated preliminarily that I would allow some questioning in that area. flQ Now, since that discussion, my understanding at this point is that Mr. Arroyo is not going to be testifying as a witness. That may change. If he does testify as a witness, this issue undoubtedly will be revisited, because I invite Mr. Mayfield [counsel for Trujeque] to revisit the issue. But the issue is not squarely before the court now. HQ . . . HQ The issue as I indicated is a [Evidence Code section] 352 issue. It is not a relevancy issue because obviously this testimony satisfies in my opinion the defense of relevant evidence in California. But being a [Evidence Code section] 352 issue, the court has to look at the probative value and weigh it against the possibility of confusing the issues, principally confusing the jury as well as the undue consumption of time. HQ Now, the justification for offering this testimony in a very general sense is two-fold. One, it’s the credibility of Jerry Salazar. And then, No. 2, something that I have quite—I have not completely understood, that is, Mr. Selvin [counsel for codefendant Herminio Serna], the argument about the theory—the theory of the conspiracy, its admissibility under the theory of the conspiracy. HQ . . . HQ Credibility is a very broad term. Whether they’re talking about credibility in a general sense that Jerry Salazar is a liar or in a more specific sense that he’s a liar in this particular case, has lied, and even more particularly has violated the plea agreement by not telling the truth. We’re still talking about credibility. HQ . . . HQ [S]o far as it relates to Mr. Salazar, he has been impeached about prior inconsistent statements in a number of instances by defense counsel. Additionally, he’s admitted lying in the past, and not just as it relates to the June ’93 interview, but he has been compelled or persuaded to admit that he lied in other instances on the witness stand. HQ Defense counsel certainly can argue the significance of his inconsistent statements, certainly can be argued that he has lied and is in fact an admitted liar. HQ But not only that, as it relates to the use of the Farfan murder as an example of an act of moral turpitude which bears on his credibility, Mr. Salazar has been confronted with a number of instances that counsel can use to argue the point of credibility. HQ There’s the bowling alley set up that Mr. Salazar was involved [in] whereby an individual from Fresno was robbed and pistol whipped. HQ There’s the incident at J.P.’s involving two Chinese males that Mr. Salazar was involved with whereby he . . . sucker punched one of the individuals after apologizing to him, suggesting that he is a man of bad character not simply because he’s violent, but there’s also the suggestion he’s homophobic. HQ There’s an incident described in the testimony at a disco where Mr. Salazar was there with Mr. Lopez and Mr. Shelton. HQ There’s the incident involving Roland Saldivar’s uncle where Salazar admitted on the stand that he pointed a gun at the individual. HQ There’s the issue involving Mr. Urango where Mr. Salazar admitted to looking for him to kill him. HQ There’s the incident at Ki