The indictment charged the five defendants with three offenses: count 1, burglary of Alvin Price’s residence with intent to commit a felonious assault; count 2, felonious assault upon Alvin Price; count 3, felonious assault upon Gregory Williams. The jury found defendants guilty of first degree burglary, felonious assault upon Price and simple assault upon Williams. The court imposed sentences on the burglary convictions, suspending imposition of sentence on the other charges as parts of a single trаnsaction. Defendants appeal.
One brief has been filed on behalf of defendants Rajotte, Sawyer, Martin and Moore; another on behalf of defendant Kanzler. On a particular afternoon Alvin Price, a Negro, was *71 riding in a car with his 17-year-old cousin, Gregory Williams, and a third man. They passed a car in which Shirley Rajotte, wife of defendant Rajotte, was riding. She twice made an obscene gesture and called them “niggers.” Price and his companions followed thе car in their own automobile to a house in the Oak Park District of Sacramento. Price walked over to Mrs. Rajotte and asked why she had called him a name and asked whether she had mistaken them for someone else. Conversation ensued in which Mrs. Rajotte threatened to send the Hell’s Angels after him. Price slapped her, causing her to fall, returned to his car and drove off.
A few nights later, shortly after midnight, defendant Rajotte, the other defendants and one McNeаl, drove to Price’s house in two ears. Price lived with his aunt, Mrs. Williams, and his cousin, Gregory Williams, in a house on San Jose Way in Sacramento. Each of the three occupants of the house testified to the ensuing incidents. Although these witnesses knew none of the defendants, they were able to identify all but Kanzler as participants. Gregory Williams, hearing a knock at the front door, went to the door and opened it slightly. A man whom he identified as Sawyer pushed the door open, entered the living room and started scuffling with him. Williams broke away and ran away into Alvin Price’s bedroom, with the man identified as Sawyer following him. There in the bedroom the man again tackled Williams, the two rolling over Price’s bed. Williams called out to Price to get his gun.
Price, became conscious of Williams and the other man wrestling and tumbling across his bed. He heard Williams calling out to him to get his gun. In the darkened room Price arose and saw several men entering. He was attacked by these men аnd fought back. He knew the reason for the action when be heard something like, “I’ll teach you about hitting a woman.” Price was hit across the back with a club and ducked the swing of a one-foot chain. He fought his way to the dresser where he kept a .22 caliber pistol loaded with eight bullets. He knew that Gregory was on the floor. Price fired all eight shots in rapid succession. He turned the light on and saw Sawyer on top of Williams. Price told him to get up but Sawyer did not. At that point Price hit Sawyer on the side of the head with the butt of his gun. As Sawyer arose, Rajotte appeared with a .38 caliber pistol, knocked the gun from Price’s hand and fired one shot at Price. Price and Sawyer *72 then started wrestling. Sawyer was getting the best of Price when Rajotte told Sawyer that they should leave. The two men picked up McNeal, who had been wounded and who was lying on the floor between the bedroom and kitchen. They carried him outside.
Mrs. Williams had been in the front bedroom whеn she heard a soft knock at the door. She heard scuffling and saw three or four people pass her bedroom door. She ran into the living room where two men she identified as Moore and Martin came up behind her with guns and told her to stand still, saying that they did not want to hurt her. They left her within a few moments and she went outside, calling for help.
The defendants drove away and the police arrived a few moments later. They found Price in a state of shock. One officer saw а lump on the back of Price’s head about the size of an orange. They noticed that Price’s bedroom was in complete disarray. On a chair outside the bedroom there was a wooden stick which could have been an ax handle. There was blood on the floor and bullet holes in the walls. Price was taken to the hospital. He had suffered numerous welts and abrasions about the neck and both shoulders, which might have resulted from being struck with a stick or club. McNeal, whо was not tried with defendants, suffered a bullet wound in his neck and was in critical condition. Both Moore and Rajotte received bullet wounds in the abdomen.
Each defendant testified. Each substantially corroborated the other’s testimony. On the night of the affair Rajotte had driven to Sacramento from the Bay Area, arriving in the house in which his wife was living at about 11:30 p.m. With him were his friends Martin, Moore and Sawyer. Kanzler and McNeal, with lady friends, were there. Seeing bruise marks on his wife’s face, Rajotte took her into the kitchen away from the others to find out what had happened. She told him that a friend had ascertained Price’s name and address. Rajotte decided that he would go to see if Price was the person who had slapped his wife. Rajotte admitted that if Price turned out to be the person, he intended to press him into a fight. Rajotte discussed the matter with McNeal, who offered to join him. Without knowing the purpose of the trip, Moore joined them and was told of the purpose enroute. Generally, Rajotte and Moore testified that Gregory Williams admitted them to the house to talk to Price, became “buggy” when they mentioned the slapping incident, yelled for Price to get his gun; that Price *73 started shooting; that Moore and MeNeal fell, that Rajotte (although hit) wrestled with Price to get his gun. ' "
Kanzler left the Rajotte house with Sawyer and Martin as his passengers and parked near Price’s house on San Jose Way. Generally, thеy testified that they saw figures go up to the porch, heard shots and went up to the house. Sawyer went in and helped Rajotte, who was dragging out the wounded MeNeal. Kanzler took all the defendants but Rajotte to the county hospital. Enroute Kanzler took a Luger pistol from the glove compartment of his car and threw it away. Rajotte drove home, then was taken to the hospital. All the defendants denied carrying or seeing any of the other defendants carrying a gun, club or chain. A slug found in the middle bedroom had been fired by a .38 caliber pistol, which was never found. Kanzler’s Luger, found near the hospital, did not shoot .38 caliber bullets. Bullets of that caliber were found in MeNeal’s pockets.
Accomplice Instructions
All defendants assign error in the court’s omission of instructions requiring corroboration of an accomplice’s testimony (Pen. Code, § 1111) and warning the jury that an accomplice’s testimony should be viewed with distrust (as required by former Code of Civil Procedure sectiоn 2061, applicable to pre-1967 trials). Kanzler in particular points to testimony of his codefendants establishing his participation in the expedition; his presence outside Price’s house after driving his two passengers there at high speed and of his being told during the ride that Rajotte was going to see someone about an incident involving the latter’s wife. This testimony of his codefendants, according to Kanzler’s argument, was incriminating evidence by alleged accompliсes, requiring appropriate instructions to the jury.
When one of several defendants takes the stand to confess his own guilt and incriminates his codefendants, the accomplice instructions should be given.
(People
v.
Catlin,
Criminal Intent Instructions
Eanzler assigns error in an instruction on general criminal intent, relying upon the rule proscribing a general intent instruction where a specific intent crime, such as burglary, is charged. The other defendants adopt this contention.
Burglary, one of the crimes charged, requires proof of specific intent to commit theft or a felony. (1 Witkin, Cal. Crimes (1963) § 458.) When a specific intent crime is charged, a jury instruction on general criminal intent without explanation or qualification constitutes error.
(People
v.
Holquin,
Self-Defense Instruction
The defendants other than Kanzler claim error in the rejection of a proposed jury instruction to the effect that when the victim of a simple assault indulges in a sudden and deadly counter assault, the original aggressor need not attempt to withdraw and may use reasonably necessary force in self-defense. The proposed instruction was based on
People
v.
Hecker,
. Sufficiency of the Evidence—Kanzler
Kanzler was tried on the prosecution theory that he was an aider and abettor in a planned burglary and assault, having stationed himself outside the victim’s house as a lookout and as the driver of a getaway ear. He asserts the absence of substantial evidence to support the jury’s verdict of guilt.
There was substantial evidence, which the jury accepted, that the men who entered Price’s house did so with the intent to commit a felonious assault. Rajotte had testified that he went to the house to talk to Price and, if he were the person who had slapped Rajotte’s wife, he would be pressed into a fight. He was accompanied on his expedition by five friends in two automobiles, the group being armed with several guns and a club. Although the defendants testified that their eventual destination was a party, the group left their female companions behind. Kanzler admitted that before leaving Rajotte’s house, he had some awareness of an incident involving Mrs. *76 Rajotte; that he connected the incident with the house on San Jose Way,- that he heard Rajotte and MeNeal say they were going to San Jose Way; that he drove to the San Jose Way house after Rajotte, although the latter’s car was not in view. According to Martin’s testimony, Kanzler was driving at high speed. At first Kanzler parked a short distance from the Price house, then, hearing the sounds of the fight, moved his car in front of the next door house. At the conclusion of the battle, he drove his companions to the hospital, getting rid of a pistol enroute.
In
People
v.
Butts,
Misconduct of Prosecutor
In cross-examining Kanzler, the prosecutor elicited the fact that he had been stopped by the police while driving in San Luis Obispo County 10 days after the affair at Price’s house; that he was with some members of an organization known as Hell’s Angels and at that time had a pistol in his car. Kanzler’s attorney objected to the line of questioning but was overruled on the theory that Kanzler had previously denied frequent associations with members of the Hell’s Angels group. 3 At a lаter point the prosecutor returned to the San Luis Obispo incident, inquiring as to the kind of gun, asking whether the gun had been concealed and what defendant was doing with the gun. Again, the defense objected and this time the'- 'objection .was sustained. Later, notwithstanding the *77 court’s ruling, the prosecutor again alluded to the San Luis Obispo incident, asking whether the police had seized, the pistol, inquiring whether Kanzler had another pistol with him at the time; asking why he had a gun with him in San Luis Obispo and why he had not left it аt home. Again, a defense objection was sustained. On three occasions the prosecutor referred to the circumstance or possibility that the gun involved in the San Luis Obispo incident had been “concealed.”
The prosecutor’s questioning constituted misconduct. The gun incident in San Luis Obispo occurred 10 days after the Price affair. It had no probative value as respects Kanzler’s participation in that affair. Evidence of the defendant’s bad chаracter in the form of specific instances of misconduct was inadmissible when offered to prove his conduct on a specified occasion. (See Witkin, Cal. Evidence (2d ed. 1966) §§ 324, 329; Evid. Code, § 1101, codifying prior California rule.) Neither could the prosecution impeach his credibility by evidence of particular wrongful acts.
(People
v.
Covert,
Although Kanzler’s trial counsel made several objections to the prosecutor’s impermissible efforts, he did not assign the questioning as misconduct or request an admonition to the jury. The court on one occasion directed thе jury to disregard “the last question and answer.” The jury were not instructed to disregard the gun possession incident. The appeal to bias was heightened during jury argument when the prosecutor, disregarding the limited purpose of evidence of the San Luis Obispo incident, alluded to it as proof that Kanzler was accustomed to keeping guns in his ear. Kanzler’s counsel objected and the court then instructed the prosecution to observe the limited purpose of the evidenсe.
Where the evidence is closely balanced and misconduct has contributed materially to the verdict, a miscarriage
*78
of justice results and article VI, section 13, of the state Constitution requires reversal without regard to objections and admonitions.
(People
v.
Lyons,
The other defendants make claims of misconduct in the course of the prosecutor’s jury arguments, as follows: (a) In both his opening and closing arguments the prosecutor asserted as facts matters which were not in evidence, (b) On 12 occasions he addressed jurors individually, (c) He spoke contemptuously of the public defender, (d) He made frequent improper references to the probable consequences of the jury’s failure to convict, (e) He sought to arouse the jury’s passion and prejudice by numerous references to the Hell’s Angels.
Several of the prosecutor’s comments elicited no objection, could have been cured by jury admonition and will not be considered on appeal.
(People
v.
Ing,
The prosecutor’s references to defendants’ membership in the Hell’s Angels arouse more concern. At several points he indicated the group’s “potential for violence” and “infamous reputation.” Under some circumstances statements of this sort would be prejudicial, arousing bias and tending tо judgments of guilt by association. A trial attorney alert to protect his record on appeal would be extremely chary of such references. Some of the allusions to membership in the Hell’s Angels Association fall within the category of invited error, since the defendants injected their connection with the organization into the case during jury impanelment and in their direct testimony. Limited comment on defendants’ membership was within the realm of fair argument, since the prosecution was attempting to show a conspiratorial scheme by the group to avenge an insult against a wife of one member. The district attorney overstepped permissible bounds in referring to the group’s “infamous reputation,” a matter not in evidence and of doubtful admissibility in any event. A defense objection at that point elicited a warning from the court to stay within the evidence. That warning together with the court’s informal jury admonitions to decide the cаse on the facts and the standard instruction against accepting statements of counsel as evidence were adequate safeguards against jury bias. When the entire record is considered, no unfairness resulted from the improper argument.
New Trial Motion
The defendants later sought a new trial on a claim of newly discovered evidence. The motion was supported by the affidavit of Robert Benny, an inmate of the Sacramento County jail. Benny’s affidavit recited in substancе that he was in the jail holding tank when he overheard a conversation between Alvin Price and another jail inmate, in which Price stated that the Hell's Angels (i.e., defendants) had received a raw deal; that in fact his cousin had opened the door of the house for their entry and that he, Price, had been waiting for them and had his gun out; that he shot them as he came in the door. The conversation allegedly occurred about two weeks after the trial ended.
*80 In opрosition to the motion the prosecution submitted an affidavit by Price denying that he had made the statements described by Benny and declaring that he had been in his private cell, not in the jail holding tank, on the day in question. An affidavit of a jail official supported Price’s claim that he had not been in the holding tank on that day.
The trial court’s order denying the new trial motion is assailed on appeal. Grant or denial of such a motion is discretionary with the trial court, and a reviеwing court will interfere only for abuse of discretion.
(People
v.
Williams,
The judgment of conviction of defendant Kanzler is reversed; the other judgments affirmed.
Pierce, P. J., and Regan, J., concurred.
A petition for a rehearing was denied December 13, 1967, and the petition of appellants Rajotte, Sawyer, Martin and Moore for a hearing by the Supreme Court was denied January 11,1968.
Notes
After instructing the jury on the elements of assault and on general intent, the court gave the following instructions:
"In the case of certain other crimes however it is necessary that in addition to the intended act which characterizes the offense, the act must be accompanied by a specific or particular intent without which such a crime may not be committed.
"Thus in the crime of Burghuy as contained in Count One, a necessary element is the existence in the mind of the perpetrator of the specific intent to commit a felonious assault and this intent must so exist at the time of the entry; and unless such intent so exists that crime is not committed. ’ ’
"The specific intent -with which an act is done may be manifested by the circumstances surrounding its commission. But you may not find a defendant guilty of the offense charged in Count One [burglary] unless the proved circumstances not only are consistent with the hypothesis that he had the specific intent to commit a felonious assault but are irreconcilable with any other rational conclusion. ’ ’ (Italics supplied.)
The trial court instructed the jury as follows:
‘ ‘ Where a person seeks or induces a quarrel which leads to the necessity in his own defense of using force against his adversary, the right to stand his ground and thus defend himself is not immediately available to him, but, instead he first must decline to carry on the affray, must honestly endeavor to escape from it, and must fairly and clearly inform his adversary of his desire for peace and of his abandonment of the contest unless the attack is so sudden and perilous that he cannot withdraw. Only when he has done so will the law justify him in thereafter standing his ground and using force upon his antagonist.” (Italics supplied.)
The codefendants appe'ar to have been members of the Hell's'Angels Organization, Kanzler was not,