Ybarra

Gang warfare shootings in Fresno one night led to verdicts finding two members of the Flotadora Street Bulldogs criminal street gang— Hugo Cemas and Ronald Enrique Ybarra—guilty, inter alia, of the first degree special-circumstance murder of a man who was not a gang member and the willful, deliberate, and premeditated attempted murders of a pregnant woman and another man, neither of whom was a gang member either. The parties argue evidentiary, ineffective assistance of counsel, instructional, juror misconduct, and sentencing issues on appeal. We will vacate both sentences and remand both matters to the trial court for resentencing but otherwise will affirm both judgments.

FACTUAL HISTORY

On October 5, 2001, shortly after 7:00 p.m., someone in a BMW yelled out to Ybarra, “What’s up Sur?” Ybarra yelled back, “Bulldog.” From inside the BMW, someone fired several shots at him from a handgun at point-blank range but missed him. Sur is short for Sureños, a rival criminal street gang.

Shortly after 9:30 that evening, Ybarra, Cemas, and another male, all armed with guns, stepped out of a large car “between a gray and a blue” in color, walked toward a house that was “a…