People v. Perez CA2/3 ( 2021 )

Filed 1/28/21 P. v. Perez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B296242
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA113936)
v.
ERIK ARMENTA PEREZ and OMAR
VALENZUELA PEREZ,
Defendants and Appellants.
APPEAL from judgments of the Superior Court of Los
Angeles County, Mike Camacho, Judge. Judgments affirmed.
Maxine Weksler, under appointment by the Court of
Appeal, for Defendant and Appellant Erik Armenta Perez.
Theresa Osterman Stevenson, under appointment by the
Court of Appeal, for Defendant and Appellant Omar Valenzuela
Perez.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Michael C. Keller, Deputy
Attorneys General, for Plaintiff and Respondent.
________________________
Defendants and appellants Omar Valenzuela Perez (Omar)
and Erik Armenta Perez (Erik)1 appeal their convictions for first
degree murder. Appellants contend: the evidence was
insufficient to support the verdicts; the trial court committed
instructional and evidentiary errors, and abused its discretion by
refusing the defense request for a mid-trial continuance; the
prosecutor committed misconduct during closing argument; and
the cumulative effect of the purported errors was prejudicial.
Discerning no reversible error, we affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
1. Background information
Appellant Omar is appellant Erik’s uncle, and is three
years older than Erik. Approximately a month and a half before
the charged murder, Erik moved to California from Arizona and
began staying in Omar’s home. Prior to that time, the men had
met only twice.
The victim, Alberto Calvillo, and Karen Salinas were
engaged to be married and had two young children together.
2. People’s evidence
a. The murder
On the evening of November 6, 2016, Calvillo and Salinas,
accompanied by Salinas’s cousin Ernesto and her friend Lizeth,
went to the Mariscos Uruapan restaurant in Baldwin Park
1
Because appellants share the same last name, for the sake
of convenience, and with no disrespect, we hereinafter refer to
them by their first names.
2
(hereinafter “Mariscos”). In addition to serving food, Mariscos
offered live music. Mariscos was equipped with a video
surveillance system, with cameras both inside and outside of the
restaurant.
Erik and Omar also patronized Mariscos that evening, and
sat at a table near Calvillo’s group. Juan Serrano, another
restaurant patron, spent approximately a half hour drinking,
dancing, and eating at appellants’ table after his original dining
companions left for the evening. He had not met either appellant
previously. Erik and Omar had no confrontation or issue with
Calvillo while inside the restaurant.
Shortly before 11:00 p.m., Salinas began feeling unwell.
She and Calvillo stepped outside so she could get some fresh air.
In front of the restaurant’s entrance was a small, tiled area. A
ramp led down from the entrance to the parking lot.
Perpendicular to the ramp, some stairs led out to Ramona
Boulevard. Calvillo and Salinas stood on the stairs, with Calvillo
a step from the top.
As Calvillo and Salinas talked on the stairs, Erik, Omar,
and Serrano came outside and stood near them at the top of the
ramp. Omar loudly made derogatory remarks about women,
including that all women were “gold diggers” and “whores” who
only wanted money. He appeared angry and agitated. Calvillo
told the men several times, “Shut up. You guys are drunk.”
Someone from Omar’s group said that they were not talking
about Salinas. But, one of the men then pointed at Salinas, and
one of them said, “Well, look at your girl. Look at what she’s
wearing.” Omar said to Erik several times, “Go get the 9.” Erik
left the group and went to the parking lot.
3
Calvillo stepped up to the top of the ramp where Omar and
Serrano were, approximately three feet away from them.
Serrano tried to calm Omar down. Salinas stepped in front of
Calvillo and tried to convince him to go inside. He refused,
saying he was not going to fight and was not going to start
anything, but was not going to “go inside and look like a bitch,”
either. He told Salinas to go back in the restaurant and get her
cousin Ernesto. She did.
Meanwhile, Erik walked through the parking lot, entered a
Toyota Camry, and drove it to the driveway in front of the
restaurant. He left the engine running, and remained in the car.
When the Camry pulled up, Omar ran down the ramp to the car.
Erik opened the door and handed Omar a gun. Omar then ran
back up the ramp to the front of the restaurant, shot Calvillo
multiple times, ran back down the ramp to the Camry, and
entered the front passenger seat. Erik drove them from the
scene.
Salinas heard screaming and went back outside, where she
found Calvillo on the ground, having difficulty breathing. Her
friend Lizeth attempted to put pressure on Calvillo’s gunshot
wounds, while Salinas held Calvillo’s hands. Calvillo was
transported to a hospital, but did not survive.
The entire incident, from when appellants came outside
until the shooting, lasted just over three minutes.
b. The investigation
Police officers stopped the Camry within 15 minutes of the
murder. In a field show-up, Salinas identified both appellants,
who were arrested.
Police found 9 nine-millimeter Aguila casings at the scene.
Three additional nine-millimeter casings were found in the
4
Camry.2 A Browning Arms, high-powered, nine-millimeter
semiautomatic handgun was found hidden in the center console
beneath the gearshift. A firearms examiner opined that the gun
in the Camry discharged all the casings found at the murder
scene and inside the car, as well as three bullet fragments
recovered from Calvillo’s body. Gunshot residue was found on
both appellants’ hands. Erik’s DNA was found on the gun’s grip,
as well as on the three casings found in the Camry.
After appellants’ arrests, Erik was seated in a police car for
10 to 15 minutes. On the floor in front of Erik’s seat, officers
found four small baggies containing methamphetamine. A
detective opined that the methamphetamine was possessed for
the purpose of sale, but acknowledged that “users also sell.”
Omar had in his possession two baggies containing cocaine.
Calvillo suffered five gunshot wounds to his shoulder, left
chest, abdomen, and right leg. The shoulder and chest wounds
were fatal. His toxicology report tested negative for alcohol but
positive for methamphetamine and its metabolite.
3. Defense evidence
a. Erik’s testimony
Erik testified in his own behalf, as follows. On the day of
the shooting, at 3:00 p.m., he and Omar consumed approximately
a half bottle of tequila while at home. At about 4:00 p.m., they
went to Ramada, a “dance place” in Baldwin Park, to drink and
celebrate the impending birth of his child. Erik drove them
there. At Ramada, the men drank beer and used “a lot” of
2
Erik testified that earlier on the day of the shooting, Omar
had fired the gun several times while in the Camry. The casings
found in the car were a result of that shooting.
5
cocaine in the restroom; they also ingested methamphetamine.
They met two women, Guadalupe M. and her friend, whom they
had never met before. The women declined their requests to
dance because the music was not good. The men suggested the
women accompany them to a different restaurant, but they
refused and said they were going to Mariscos. When the women
left, Erik and Omar also went to Mariscos.
At Mariscos, Guadalupe and her friend sat at Omar and
Erik’s table. Erik flirted and danced with Guadalupe, while
Omar directed his attentions to the friend. Erik and Omar
bought the women drinks, and Omar bought them flowers. At
some point thereafter, the women left the restaurant. Erik
walked with them to their car, unsuccessfully trying to persuade
them to stay.
While at Mariscos, Omar and Erik ordered several buckets
of beer. Omar ingested cocaine at the table. Erik also used
cocaine, but in the restroom. The men also used
methamphetamine. They had no “problems” with anyone while
inside the restaurant.
Around 11:00 p.m., Omar, Erik, and Serrano walked
outside and stood at the top of the ramp, near Calvillo and
Salinas. Omar was upset that Guadalupe and her friend had left.
Referring to the women, Omar loudly talked about women being
“completely worthless” and only caring about money. Calvillo got
upset because he believed Omar was talking about Salinas. He
began arguing with Omar. Omar apologized and stated he was
not referring to Salinas. Calvillo, who was a big man and looked
angry, stepped toward them, stood over Erik, and threatened to
“beat the fuckin’ shit out of” them. Erik thought Calvillo wanted
to hit them and fight, and was afraid. Salinas tried to separate
6
Calvillo from the men and convince him to go inside, but he
refused. Calvillo told Salinas to go get her cousin. Omar told
Erik to “go get the 9,” which Erik understood to mean Omar’s
nine-millimeter firearm that was hidden inside the Camry’s
center console. Omar did not say that he intended to kill Calvillo.
Erik went to get the gun. He walked to the Camry in the
parking lot, during which time he could hear Omar and Calvillo
arguing loudly. He sat inside the Camry for approximately a half
minute, retrieving the gun. He then executed a three-point turn
in order to get to the front of the restaurant and drove to the
driveway area near the bottom of the ramp. When Omar ran
down to the car, Erik handed him the gun and remained inside.
He heard multiple gunshots. Omar returned to the car, and Erik
drove them away from the scene.
Erik explained he retrieved the gun because he was afraid
Calvillo was going to “do something” to him and Omar, and
“because of the drugs.” He did not know or intend that Omar
would kill Calvillo.
b. Expert testimony
Dr. John Budny, an expert in the fields of toxicology,
pharmacology and biochemistry, testified regarding the effects of
drugs and alcohol on the human body. Alcohol, cocaine, and
methamphetamine affect cognitive and psychomotor functions.
Alcohol lessens a person’s “control mechanisms,” and
methamphetamine can cause aggression and paranoia. All three
substances affect a person’s ability to reason and reflect on their
actions. Persons under the influence of alcohol,
methamphetamine, and cocaine would have “grossly impaired”
cognitive functions and would be impulsive, unable to think
through their actions, and unable to carefully consider prior to
7
making a decision. The effect of such substances on any
individual user depends on numerous variables, including the
person’s metabolism, how much they have eaten, and their
tolerance for the substance. A person could be cognitively
impaired yet still be able to drive a car. Budny could not
definitively opine as to appellants’ level of impairment or how the
drug and alcohol use affected them. However, based on the
amounts of alcohol appellants reported consuming, they would
have been under the influence for purposes of California’s driving
laws.
Calvillo’s autopsy report indicated he had levels of
methamphetamine in his blood that could cause behavioral
changes such as agitation and restlessness.
4. Procedure
A jury convicted both Erik and Omar of the willful,
deliberate, and premeditated first degree murder of Calvillo.
(Pen. Code, § 187, subd. (a).)3 The jury found Omar personally
and intentionally discharged a firearm, proximately causing
great bodily injury and death. (§§ 12022.53, subds. (b), (c), (d),
12022.5, subd. (a)(1)). As to Erik, it found a principal armed
allegation true. (§ 12022, subd. (a)(1)).
Omar admitted serving a prior prison term within the
meaning of section 667.5, subdivision (b). After denying
appellants’ motions for a new trial, the court sentenced Omar to
25 years to life in prison for the murder, plus a consecutive term
of 25 years to life for the section 12022.53, subdivision (d) firearm
3
All further undesignated statutory references are to the
Penal Code.
8
enhancement.4 The court sentenced Erik to 25 years to life in
prison.5 It imposed a restitution fine, a suspended parole
revocation restitution fine, a criminal conviction assessment, and
a court operations assessment on both defendants, but stayed all
such fines and fees based upon its finding that they lacked the
ability to pay.
Appellants filed timely notices of appeal.
DISCUSSION
1. The evidence was sufficient to prove first degree murder
Appellants contend the evidence was insufficient to prove
the elements of first degree murder. We disagree.
a. Applicable legal principles
When determining whether the evidence was sufficient to
sustain a criminal conviction, “ ‘ “we review the entire record in
the light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.” [Citation.]’ ” (People v. McCurdy (2014) 59 Cal. 4th 1063,
1104; People v. Vargas (2020) 9 Cal. 5th 793, 820.) We presume
the existence of every fact the trier of fact could reasonably
deduce from the evidence. (People v. Morales (2020) 10 Cal. 5th
76, 88.) The same standard of review applies to cases in which
the prosecution relies primarily on circumstantial evidence.
(People v. Vargas, at p. 820.)
4
The court struck the prior prison term enhancement.
5
The court imposed but stayed the section 12022 arming
enhancement.
9
Murder is of the first degree when it is willful, deliberate
and premeditated. (§ 189, subd. (a); People v. Morales, supra,
10 Cal.5th at p. 88.) Premeditation and deliberation require
more than a showing of intent to kill. (People v. Mendoza (2011)
52 Cal. 4th 1056, 1069.) A killing is premeditated and deliberate
if it is considered beforehand and occurred as the result of
preexisting thought and reflection, rather than as the product of
an unconsidered or rash impulse. (People v. Morales, at p. 88;
People v. Pearson (2013) 56 Cal. 4th 393, 443.) “Deliberation”
refers to careful weighing of considerations in forming a course of
action; “premeditation” means thought over in advance. (People
v. Pearson, at p. 443; People v. Disa (2016) 1 Cal. App. 5th 654,
664.) It is “not necessary to prove the defendant maturely and
meaningfully reflected upon the gravity of the defendant’s act.”
(§ 189, subd. (d).) The “ ‘ “process of premeditation and
deliberation does not require any extended period of time.” ’ ”
(People v. Salazar (2016) 63 Cal. 4th 214, 245.) “ ‘The true test is
not the duration of time as much as it is the extent of the
reflection. Thoughts may follow each other with great rapidity
and cold, calculated judgment may be arrived at quickly . . . .’
[Citation.]” (People v. Potts (2019) 6 Cal. 5th 1012, 1027.)
Three categories of evidence are especially probative to
establish premeditation and deliberation: planning activity,
motive, and manner of killing. (People v. Dalton (2019) 7 Cal. 5th
166, 248; People v. Potts, supra, 6 Cal.5th at p. 1027; People v.
Anderson (1968) 70 Cal. 2d 15, 26–27.) These so-called Anderson
factors are not all required, are not exclusive, and need not be
accorded any particular weight; instead, they are a framework to
guide appellate review. (People v. Morales, supra, 10 Cal.5th at
p. 89.)
10
b. Sufficiency of the evidence as to Omar
Omar argues that the evidence was insufficient to prove he
premeditated and deliberated before killing Calvillo. We
disagree.
First, the evidence clearly showed planning—the most
important of the Anderson factors. (See People v. Alcala (1984)
36 Cal. 3d 604, 627.) Omar did not impulsively pull a gun that
was already on his person. Instead, he told Erik—several
times—to go retrieve the gun for him. Courts have repeatedly
held that evidence a defendant arms himself before an attack
supports an inference of planning. In People v. Salazar, supra,
63 Cal. 4th 214, our Supreme Court reasoned that the defendant’s
act of telling his companion to get a gun amounted to “substantial
evidence of planning.” (Id. at p. 245.) The same is true here.
(See also, e.g., People v. Elliot (2005) 37 Cal. 4th 453, 471
[evidence defendant armed himself prior to accosting the victim
supported finding of planning activity]; People v. Thomas (1992)
2 Cal. 4th 489, 517 [planning shown by evidence defendant
returned to his car to get a rifle before committing murders];
People v. Wright (1985) 39 Cal. 3d 576, 593 & fn. 5 [“obtaining [a
deadly weapon] in advance of a killing is one fact that has been
held to support an inference of planning activity”]; People v.
Adcox (1988) 47 Cal. 3d 207, 240 [the “ ‘fact that defendant
brought his loaded gun’ ” to the scene of the shooting “ ‘and
shortly thereafter used it to kill an unarmed victim reasonably
suggests that defendant considered the possibility of murder in
advance’ ”].) Omar argues that it cannot reasonably be inferred
he had the gun in his car because he planned to use it against
Calvillo or anyone else. But the salient point is that he ordered
Erik to go get the gun and armed himself with it in order to shoot
11
the victim, not that he simply had it in the car when he arrived at
the restaurant.
The manner of killing also supported the jury’s finding of
premeditation and deliberation. Omar fired nine rounds at
Calvillo from a few feet away, with no hesitation, hitting him in
the torso and leg and inflicting two fatal wounds. (See People v.
Wright, supra, 39 Cal.3d at pp. 593–594 [fact defendant shot
victim at close range four times without hesitation “could well
support an inference by the jury that the manner of killing was
‘particular and exacting’ ”]; People v. Gonzales and Soliz (2011)
52 Cal. 4th 254, 295 [multiple gunshots at close range, without a
struggle or provocation sufficient to reduce murders to
manslaughter, supported inference of premeditation and
deliberation]; People v. Thompson (2010) 49 Cal. 4th 79, 114–115
[where three gunshots were fired from a few feet away, “[t]his
manner of killing, a close-range shooting without any provocation
or evidence of a struggle, reasonably supports an inference of
premeditation and deliberation”]; People v. Francisco (1994) 22
Cal. App. 4th 1180, 1192 [six shots fired from five feet away
supported a finding of premeditation and deliberation].)
The People argue that there was also evidence of motive:
Omar was angry at Calvillo based on the way Calvillo spoke to
appellants. In support, they cite People v. Miranda (1987) 44
Cal. 3d 57. There, the victims refused to sell beer to the
defendant. The defendant testified he became angry because he
believed the men were being rude to him. “The conversation
between defendant and his victims suggests that defendant acted
with conscious motive and had time to reflect upon his plan to
shoot the victims. ‘[T]he law does not require that a first degree
murderer have a “rational” motive for killing. Anger at the way
12
the victim talked to him . . . may be sufficient.’ [Citations.]”
(Id. at p. 87, disapproved on another point in People v. Marshall
(1990) 50 Cal. 3d 907, 933, fn. 4; People v. Jackson (1989) 49
Cal. 3d 1170, 1200 [evidence that defendant became angry when
approached by officer demonstrated motive].)
Omar points to People v. Boatman (2013) 221 Cal. App. 4th
1253, for the proposition that anger arising from a confrontation
does not prove a premeditated motive to kill. In Boatman, the
defendant and the victim, his girlfriend, had been embroiled in a
“ ‘loud screaming argument’ ” a “couple of minutes” before he shot
her. (Id. at pp. 1258, 1261, 1268.) Boatman rejected the view
that the argument showed a preexisting motive suggesting
careful thought and reflection. Rather, the evidence indicated a
motive to kill based on an unconsidered or rash impulse. (Id. at
p. 1268.)
The facts of this case more closely resemble Miranda than
Boatman. But even assuming arguendo that Boatman’s rationale
applies, that does not negate the jury’s finding of premeditation
and deliberation here. California law “has ‘ “never required the
prosecution to prove a specific motive before affirming a
judgment, even one of first degree murder. A senseless, random,
but premeditated, killing supports a verdict of first degree
murder.” [Citation.]’ [Citation.]” (People v. Halvorsen (2007)
42 Cal. 4th 379, 421–422; People v. Orozco (1993) 20 Cal. App. 4th
1554, 1567.)
Omar advances several arguments in support of his
contention that the evidence was insufficient. He points out that
the whole incident transpired within approximately three
minutes. But a plan may be “rapidly and coldly formed” (People
v. Mendoza (2011) 52 Cal. 4th 1056, 1070), and “planning activity
13
occurring over a short period of time is sufficient to find
premeditation.” (People v. Sanchez (1995) 12 Cal. 4th 1, 34,
disapproved on another ground by People v. Doolin (2009) 45
Cal. 4th 390, 421, fn. 22; People v. Solomon (2010) 49 Cal. 4th 792,
812–813; People v. Brady (2010) 50 Cal. 4th 547, 563–564
[defendant killed officer during the course of a traffic stop lasting
only a few minutes; jury could find he rapidly and coldly formed
the idea to kill and acted after reflection rather than on an
unconsidered impulse]; People v. San Nicolas (2004) 34 Cal. 4th
614, 658.) Omar had ample time to consider his actions while
Erik walked to the parking lot and pulled the Camry to the front
of the restaurant. Furthermore, Serrano testified that after Erik
left to retrieve the gun, he talked to Omar to try to calm him
down; the video of the incident corroborates this account. The
jury could infer that Omar must have given thought to his plan to
kill when he rejected Serrano’s advice.
Omar also relies on the principle that an especially brutal
killing may be as consistent with an explosion of rage as with
premeditation. (See People v. Alcala, supra, 36 Cal.3d at
p. 626; People v. Nazeri (2010) 187 Cal. App. 4th 1101, 1118.) But
the gunshots in this case are not comparable to the type of
injuries courts have characterized as brutal or frenzied. (See
People v. Alcala, at p. 627 [victim was “ ‘all cut up’ ” by multiple
stab wounds and had been hit in the head with a blunt object];
People v. Nazeri, at p. 1109 [each victim had been stabbed
multiple times in the neck, torso, and other areas].) The
gunshots in the instant case were purposeful and controlled. The
video does not show Omar shot in a frenzy. Instead, he
purposefully ran to the car, retrieved the gun, ran back up the
ramp, fired shots directly at Calvillo in quick succession—
14
managing to avoid hitting Serrano in the process—and then ran
back down the ramp, to the waiting car. And, a restaurant
employee who saw the shooting testified that she observed
Omar’s facial expression as he was firing the gun; he looked like
he was “there with a purpose.”
Omar further argues that he was intoxicated and had
consumed drugs, which—according to testimony by the defense
expert—would have caused him to behave impulsively, rather
than with premeditation. While there was evidence that Omar
ingested drugs and alcohol and was intoxicated, there was also
evidence showing that he was not so affected by his drug and
alcohol use that he failed to form the requisite mental states.
Serrano, who spent at least a half hour with appellants
immediately before the shooting, testified that Omar did not
appear drunk, did not need help walking, and spoke clearly.
Sergeant Jorge Huerta testified that when he stopped the Camry,
both appellants obeyed instructions, gave appropriate responses
to his questions, and did not display any bizarre behavior. Most
significantly, the video footage suggested Omar was not
impaired; he purposefully retrieved the gun, managed to
disengage its safety features, and sufficiently aimed at the victim
to hit him five times, while avoiding hitting Serrano or any of the
other persons in the vicinity. Thus, the effect of his voluntary
intoxication was a question for the jury. (See People v. Lewis
(2001) 25 Cal. 4th 610, 643–644.)
The same is true in regard to Omar’s argument that he
only wanted the gun as a display of authority and control, or for
protection if Calvillo attacked him. For one thing, this argument
is completely at odds with the undisputed evidence: Omar ran to
get the gun, returned to the restaurant entrance, and shot
15
Calvillo without warning. For another, this argument amounts
to a request that this court reweigh the evidence and substitute
our judgment for the jury’s. The fact the evidence might have
been reconciled with a contrary finding does not warrant
reversal. (People v. Vargas, supra, 9 Cal.5th at p. 820.)
c. Sufficiency of the evidence as to Erik
It was undisputed that Erik was not the actual killer. To
prove his guilt of first degree murder as an aider and abettor, the
People had to show: (1) he knew of Omar’s unlawful purpose;
(2) he intended to commit, encourage, or facilitate the murder;
(3) by act or advice he aided, promoted, encouraged, or instigated
the crime; and (4) he did so willfully, deliberately, and with
premeditation. (People v. Penunuri (2018) 5 Cal. 5th 126, 146–
147; People v. Chiu (2014) 59 Cal. 4th 155, 166–167, superseded
by statute on another point as stated in People v. Gentile (2020)
10 Cal. 5th 830, 849; People v. Lara (2017) 9 Cal. App. 5th 296,
318.)
There is no question Erik’s actions aided and encouraged
the murder: he handed Omar the gun, waited with the car’s
engine on while Omar committed the murder, and drove Omar
away seconds after the murder. Thus, the only questions were
whether he knew Omar intended to kill Calvillo, intended to
assist him in that goal, and premeditated the killing.
Intent and knowledge generally must be proved
circumstantially. (See People v. Thomas (2011) 52 Cal. 4th 336,
355 [“Mental state and intent are rarely susceptible of direct
proof and must therefore be proven circumstantially.”].) There
was ample circumstantial evidence to prove those elements here.
Erik knew Omar was angered by Calvillo’s comments. Omar
ordered Erik, several times, to “go get the 9.” From this evidence
16
alone, the jury could infer Erik knew of Omar’s intent to kill:
why else would Omar need his gun under these circumstances?
Serrano and Salinas both testified that Calvillo did not make any
threats to Omar or Erik, undercutting any inference that Omar
thought he might need the gun for self-defense.
Further, Erik did not simply go retrieve the gun from the
car and bring it to Omar, as would be expected if he thought
Omar intended to use it in a non-homicidal fashion. Instead,
Erik drove the Camry to the front of the restaurant and
positioned it at the driveway. He did not turn the motor off or
join Omar on the ramp. As Omar ran back up the ramp with the
gun, Erik stepped partially out of the driver’s seat; when shots
were fired, he immediately sat down and closed the door, without
any visible show of surprise or dismay. The most logical
inference from this evidence was that Erik knew he and Omar
would need to make a quick getaway because Omar intended to
shoot Calvillo. And, Erik had sufficient time to premeditate the
murder as he walked to the car, sat inside while getting the gun,
and drove to the front of the restaurant.
The jury was not required to credit the defense’s voluntary
intoxication theory. As with Omar, there was evidence from
which the jury could conclude that, despite Erik’s use of alcohol
and drugs, he premeditated and intended the killing. Erik
testified that cocaine usually made him “wanna keep drinking,”
but that night “the cocaine was not doing its effect anymore.”
Serrano testified that both appellants “looked fine to me. They
didn’t look drunk or nothing.” In preparation for the killing, Erik
was able to find the Camry in the parking lot, make a three-point
turn, and position the car for escape without difficulty. Sergeant
Huerta followed the Camry for approximately three minutes
17
before stopping it; he observed nothing suggesting that Erik was
having difficulty driving. When stopped, Erik obeyed
instructions, gave appropriate responses to Huerta’s questions,
and did not display any bizarre behavior. Thus, while there was
significant evidence that Erik had consumed alcohol and drugs,
the jury was not required to accept the defense theory that he
lacked the requisite mental states as a result.
As to Erik’s contention that any showing of intent and
premeditation was negated by Calvillo’s purported provocation,
the jury was entitled to reject this argument. Erik acknowledges
that he did not argue with Calvillo, and there was no evidence he
“shared Omar’s anger.” Salinas testified that it was not fair to
characterize the interchange as a “heated conversation.” Omar,
not Calvillo, precipitated the confrontation by making derogatory
remarks about women. Serrano testified that he did not feel
intimidated by Calvillo, and did not expect the situation to
escalate. Significantly, Erik left to get the gun within 40 seconds
after he and Omar went outside the restaurant. In short, there
was evidence the jury could have relied on to reject the argument
that Erik’s reason was clouded due to provocation.
Erik further argues that he had only known Omar for six
weeks prior to the shooting, and had no reason to believe Omar
had violent tendencies; he could not have known Omar intended
to kill, rather than merely assault or “subdue” Calvillo; there was
no evidence he told Omar to shoot; and he was not personally
involved in the argument, and therefore had no motive to kill.
These arguments amount to a request that this court reweigh the
evidence and substitute our judgment for the jury’s. This we
cannot do. As noted above, where, as here, the evidence
reasonably justifies the jury’s findings, the judgment may not be
18
reversed simply because the circumstances might also reasonably
be reconciled with a contrary finding. (People v. Solomon, supra,
49 Cal.4th at p. 816; People v. Harris (2013) 57 Cal. 4th 804, 849–
850.)
2. Denial of continuance
Appellants contend that the trial court abused its
discretion by declining to grant a mid-trial continuance to allow
the defense to secure the attendance of a witness, in violation of
their rights to present a defense, the effective assistance of
counsel, due process, and a fair trial. We disagree.
a. Additional facts
On Wednesday, October 17, 2018, during Erik’s testimony,
counsel for Omar advised the court that Guadalupe M., one of the
women who had been with appellants at the Ramada and
Mariscos restaurants, and who had been expected to appear as a
witness for the defense, had been admitted to the hospital earlier
that morning and was having emergency surgery the next day.
Joined by Erik’s counsel, he averred that Guadalupe was a
necessary witness because “she was the topic of cross
examination” by the prosecutor, and “she was with Erik Perez
and saw the conduct and various things that happened inside the
bar.” It was unknown when she would be available to testify.
Appellants asked the court to continue the trial until she became
available at some unspecified point in the future, or grant a
mistrial.
The trial court denied the requests, explaining it would not
“recess a trial in hopes that a witness who is undergoing surgery
will somehow be medically cleared to testify at some unknown
date in the future and keep this case ongoing until that is
known.” Observing that Guadalupe was not a witness to any of
19
the events outside the restaurant and her testimony appeared
somewhat cumulative, the court reasoned that her absence would
not deny appellants a fair trial. Before the defense rested, Erik’s
counsel renewed the request, arguing that Guadalupe had
relevant information regarding appellants’ drug and alcohol use.
The court again denied the request.
Approximately three months after trial concluded,
appellants brought motions for a new trial, based on, among
other things, the court’s denial of the continuance. Appellants
argued that Guadalupe witnessed their drug use, the extent of
which had been questioned by the prosecutor. Omar further
complained that the prosecutor had argued that appellants’ anger
that evening was due to the fact Guadalupe and her friend had
spurned their advances, and Guadalupe would be able to rebut
this contention. The trial court denied the new trial motions,
finding that Guadalupe’s testimony was cumulative and the
defense had suffered no prejudice.
b. Discussion
A continuance in a criminal trial may only be granted for
good cause, and the trial court has broad discretion to determine
whether good cause exists. (§ 1050, subd. (e); People v. Alexander
(2010) 49 Cal. 4th 846, 934; People v. Mungia (2008) 44 Cal. 4th
1101, 1118; People v. Doolin, supra, 45 Cal.4th at p. 450.)
“ ‘There are no mechanical tests for deciding when a denial of a
continuance is so arbitrary as to violate due process. The answer
must be found in the circumstances present in every case,
particularly in the reasons presented to the trial judge at the
time the request is denied.’ [Citations.]” (People v. Mungia, at
p. 1118; People v. Hajek and Vo (2014) 58 Cal. 4th 1144, 1181,
overruled on another ground in People v. Rangel (2016) 62
20
Cal. 4th 1192, 1216.) “ ‘The party challenging a ruling on a
continuance bears the burden of establishing an abuse of
discretion, and an order denying a continuance is seldom
successfully attacked.’ ” (People v. Hajek and Vo, at p. 1181.)
“Absent a showing of an abuse of discretion and prejudice, the
trial court’s denial does not warrant reversal.” (People v. Doolin,
at p. 450.) “ ‘[O]nly an unreasoning and arbitrary “insistence
upon expeditiousness in the face of a justifiable request for delay”
violates the right to the assistance of counsel.’ ” (People v. Mora
and Rangel (2018) 5 Cal. 5th 442, 508.)
When a continuance is sought to secure the attendance of a
witness, the defendant must establish that (1) he or she exercised
due diligence to secure the witness’s attendance; (2) the witness’s
expected testimony was material and not cumulative; (3) the
testimony could be obtained within a reasonable time; and (4) the
facts to which the witness would testify could not otherwise be
proven. (Jensen v. Superior Court (2008) 160 Cal. App. 4th 266,
270.) The court “must consider ‘ “ ‘not only the benefit which the
moving party anticipates but also the likelihood that such benefit
will result, the burden on other witnesses, jurors and the court
and, above all, whether substantial justice will be accomplished
or defeated by a granting of the motion.’ ” ’ [Citation.]” (People v.
Doolin, supra, 45 Cal.4th at p. 450; People v. Mora and Rangel,
supra, 5 Cal.5th at p. 509.)
There was no abuse of discretion here. Despite appellants’
characterization of their request as asking for a “short”
continuance, in fact there was no showing of when Guadalupe
might be available to testify.6
6
Erik speculates that Guadalupe’s surgery was likely to
have been performed laparoscopically, and therefore it was a
21
There was also an insufficient showing her testimony
would have been material and noncumulative. Guadalupe did
not witness the shooting, or the interaction between Calvillo and
appellants; it was undisputed that she had left the restaurant
before then. It was also undisputed that there was no conflict or
significant interaction between Calvillo and appellants inside the
restaurant, so her testimony could not have been probative in
that regard.
As to appellants’ drug use, Erik testified he used cocaine in
the restroom. Presumably Guadalupe did not follow him into the
men’s room, and therefore could not have given an account of his
actions there. There was considerable evidence in the record,
including that offered by the People, that appellants had
consumed alcohol and drugs. A detective testified that a witness
informed him that one or both of the defendants were using
methamphetamine or cocaine inside the restaurant. Salinas
testified that at Mariscos, she observed appellants go to the
restroom multiple times, with unusual frequency. The trial court
matter of “common knowledge” that she would have been
available within a few days. But when appellants requested the
continuance, they represented that they had very limited
information and did not know her medical status. Neither
defense counsel described the nature of the surgery until the
motions for new trial, months after trial concluded. Even then,
no definitive information was provided: Omar’s counsel stated
that the witness had been “having emergency surgery to remove
some type of internal organ, I don’t recall specifically what it was
but it was her gall bladder or appendix, something like that.” We
cannot properly accept speculative assumptions about her
possible recovery period, especially when they were not shared
with the trial court when the continuance request was made.
22
pointed out, in denying the new trial motion, that the video
footage showed appellants holding beers or alcoholic beverages in
their hands in the restaurant. When Calvillo encountered
appellants outside the restaurant, he said to them, “you guys are
drunk.” When Sergeant Huerta stopped the Camry shortly after
the shooting, he observed that appellants had bloodshot and
watery eyes and smelled of alcohol, and he believed they were
under the influence. When arrested, Omar had cocaine on his
person, and Erik dropped methamphetamine in the police car.
And, Erik testified at length regarding appellants’ drug and
alcohol use, as recited in the statement of facts, ante. In short,
there is little chance any additional observations by Guadalupe
would have made much difference to the defense case. The
prosecutor argued that appellants’ actions and demeanor
demonstrated they could still premeditate and deliberate,
regardless of the substances they ingested. Corroboration that
the men drank or that Omar used drugs while at the table would
have done little or nothing to rebut the prosecutor’s point.
Contrary to Omar’s argument below, Guadalupe could not
have testified as to why he was angry after she and her friend
left. Any thoughts she might have had on the subject would have
been speculative. In any event, Omar’s counsel was the one who
elicited, during examination of Erik, that Omar was upset
because he had spent money on the women, and then they left.
And, whether his ire was provoked by Guadalupe and her friend,
or by some other woman, was not significant.
In sum, the trial court’s ruling was neither arbitrary nor
unreasonable, appellants were not prevented from presenting
their intoxication defense, and no prejudice is apparent. For the
23
same reasons, the motions for new trial, insofar as they were
based on these contentions, were properly denied.
3. Admission of a photograph of the victim with his son
Appellants next contend that the trial court abused its
discretion by allowing the prosecutor to introduce a photograph of
Calvillo with his young son, in violation of their rights to due
process and a fair trial.
a. Additional facts
Near the start of Salinas’s direct examination, the
prosecutor elicited, without objection, that Calvillo was her fiancé
and they had two children together, a six-year-old son and a
three-year-old daughter. The prosecutor then offered a
photograph of Calvillo with his son, “[j]ust so the jury is aware of
who we’re talking about and [Salinas’s] relationship with that
person.” Omar’s counsel’s objected that the photo was irrelevant
and would only inflame the jury’s emotions. The court overruled
the objection, reasoning: (1) there was already evidence in the
record that Calvillo and Salinas had children together;
(2) evidence of their relationship and the fact they had children
would help explain Salinas’s demeanor and ability to perceive
and recollect events; and (3) there was “nothing prejudicial”
about the photograph, which was not inflammatory.
During closing argument, the prosecutor apparently
included the photograph of Calvillo in a power point presentation.
Omar’s counsel requested a mistrial, arguing that the photo was
“used to plead to the emotion of the jury.” The trial court
responded that it was relevant to prove Calvillo was a human
being—an element of the crime—and to explain Salinas’s
demeanor while testifying. It acknowledged, “for purposes of
closing, maybe it should not have been used in [the] way it was
24
because it was more an issue of evoking a sympathy factor which
is improper for the jury to consider.” Noting that the jury had
been instructed not to allow emotion or sympathy to shape its
verdict, the court denied the request for a mistrial.
The trial court subsequently denied Omar’s motion for a
new trial, in which he again argued that admission of the
photograph infringed his right to a fair trial.
b. Discussion
“Except as otherwise provided by statute, all relevant
evidence is admissible.” (Evid. Code, §§ 351, 210; People v. Tully
(2012) 54 Cal. 4th 952, 1010.) A trial court has broad discretion to
determine whether evidence is relevant and substantially more
prejudicial than probative. (Evid. Code, § 352; People v. Sanchez
(2019) 7 Cal. 5th 14, 54.) “Courts should be cautious . . . about
admitting photographs of murder victims while alive, given the
risk that the photograph will merely generate sympathy for the
victims. [Citation.] But the possibility that a photograph will
generate sympathy does not compel its exclusion if it is otherwise
relevant. [Citation.]” (People v. Harris (2005) 37 Cal. 4th 310,
331–332.) We review the trial court’s evidentiary rulings for
abuse of discretion. (People v. Duong (2020) 10 Cal. 5th 36, 64–
65.)
Appellants contend that the photograph was irrelevant,
cumulative, and unduly prejudicial. They argue there was no
dispute Calvillo was a human being, the photo was unnecessary
to explain Salinas’s testimony, and the depiction of Calvillo’s son
was likely to “deeply upset” jurors and “ignite emotional biases”
against appellants. The People counter that the photo was
relevant to prove Calvillo’s identity, and was not especially likely
25
to evoke sympathy beyond that which was inherent in Salinas’s
testimony.
We need not determine which party is correct because, even
assuming arguendo that the photograph should have been
excluded, any error was manifestly harmless. (See Evid. Code,
§ 353, subd. (b) [erroneous admission of evidence does not require
reversal unless the error caused a miscarriage of justice]; People
v. Richardson (2008) 43 Cal. 4th 959, 1001.) We have examined
the single photograph in question and do not find it likely to have
evoked an emotional bias against appellants. It is not
inflammatory; it simply shows Calvillo, smiling, with a young
toddler or baby, in front of a nondescript background. (See People
v. Harris, supra, 37 Cal.4th at p. 332 [short videotape of the
victim at a children’s birthday party did “not engender an
emotional reaction but [was] neutral and unremarkable.”].) The
jury was already aware, via unchallenged evidence, that Calvillo
had two young children. The photograph thus conveyed nothing
more than the jury already knew. Although the photograph was
apparently shown in a power point presentation during closing,
the prosecutor made no argument regarding it. Furthermore, the
jury was instructed not to allow bias, sympathy or prejudice to
influence its decision, a precept we presume jurors followed. (See
People v. Seumanu (2015) 61 Cal. 4th 1293, 1345; People v.
Martinez (2010) 47 Cal. 4th 911, 957.) There is no reasonable
possibility that admission of the photo lessened the reliability of
the verdict. For the same reasons, the trial court did not err by
denying Omar’s motion for a new trial insofar as it raised this
claim of error.
26
4. Alleged instructional errors
Appellants raise several claims of instructional error. None
has merit.
a. Failure to instruct on heat of passion voluntary
manslaughter
The trial court instructed the jury on first and second
degree murder, homicide in self-defense, voluntary manslaughter
on an imperfect self-defense theory, provocation, and the effect of
voluntary intoxication. It rejected appellants’ requests to
instruct on voluntary manslaughter on a heat of passion theory,
finding that there was insufficient evidence of legally sufficient
provocation. Appellants contend the trial court’s ruling was
prejudicial error that violated their rights to due process and a
fair trial. We disagree.
(i) Applicable law
A trial court must instruct on all general principles of law
relevant to the issues raised by the evidence, including lesser
included offenses. (People v. Smith (2013) 57 Cal. 4th 232,
239.) Instruction on a lesser included offense is required when
there is evidence the defendant is guilty of the lesser, but not the
greater, offense. (People v. Whalen (2013) 56 Cal. 4th 1, 68.) This
duty is not satisfied by instructing on only one theory of an
offense if other theories are supported by the evidence. (People v.
Lee (1999) 20 Cal. 4th 47, 61.) Substantial evidence is evidence a
reasonable jury could find persuasive. (People v. Williams (2015)
61 Cal. 4th 1244, 1263.) The existence of any evidence, no matter
how weak, will not justify an instruction. (People v. Whalen, at
p. 68.)
We independently review the question of whether the trial
court erred by failing to instruct on a lesser included offense.
27
(People v. Nelson (2016) 1 Cal. 5th 513, 538.) In making this
determination, we do not evaluate the credibility of the
witnesses. (People v. Wyatt (2012) 55 Cal. 4th 694, 698.) We view
the evidence in the light most favorable to the defendant. (People
v. Millbrook (2014) 222 Cal. App. 4th 1122, 1137; People v.
Larsen (2012) 205 Cal. App. 4th 810, 824.)
Voluntary manslaughter is the intentional but
nonmalicious killing of a human being, and is a lesser included
offense of murder. (§ 192, subd. (a); People v. Moye (2009) 47
Cal. 4th 537, 549.) A killing may be reduced from murder to
voluntary manslaughter if it occurs upon a sudden quarrel or in
the heat of passion on sufficient provocation. (People v. Lee,
supra, 20 Cal.4th at p. 59.) “The heat of passion sufficient to
reduce murder to manslaughter ‘exists only where “the killer’s
reason was actually obscured as the result of a strong passion
aroused by a ‘provocation’ sufficient to cause an ‘ “ordinary
[person] of average disposition . . . to act rashly or without due
deliberation and reflection, and from this passion rather than
from judgment.” ’ ” ’ [Citation.]” (People v. Landry (2016) 2
Cal. 5th 52, 97; People v. Moye, supra, 47 Cal.4th at pp. 549–550;
People v. Lee, supra, 20 Cal.4th at p. 59; People v. Manriquez
(2005) 37 Cal. 4th 547, 583; People v. Beltran (2013) 56 Cal. 4th
935, 939.)
(ii) The court correctly found there was
insufficient evidence to support the instruction
The trial court did not err by refusing the proposed heat of
passion instruction, because there was insufficient evidence to
support it. As to Erik, there was a dearth of evidence suggesting
he actually acted due to passion rather than judgment. Omar
was the one making the derogatory remarks about women; there
28
was no evidence Erik engaged in a significant verbal dispute with
Calvillo. The video showed that Erik left to get the gun less than
a minute after he and Omar encountered Calvillo and Salinas.
Nothing about Erik’s demeanor, as shown in the video, suggested
he was angry or upset. Erik testified that he retrieved the gun
because he was afraid Calvillo would fight or harm him or Omar,
not because he was angry or provoked.7 When asked what he was
thinking when he placed the loaded gun in Omar’s hand, Erik
replied, “I didn’t think anything. I was on drugs.”
There was also insufficient evidence, as to both defendants,
of legally sufficient provocation by the victim. Viewing the
evidence in the light most favorable to the defense, and crediting
Erik’s testimony, Calvillo seemed angry; said “shut up, you guys
are drunk” to the men; stepped toward them; loudly argued with
Omar; and threatened to “beat the shit out of” Erik and Omar.
On the facts of this case, none of these actions amounted to
sufficient provocation. The video shows that the argument lasted
for less than a minute before Omar told Erik to get the gun.
7
Erik argues that the jury might have concluded his
purported fear established heat of passion. It has been held that
strong fear or panic can, in an appropriate case, provide evidence
a defendant’s reason was obscured by “extreme emotion,” even
though such evidence is more consistent with imperfect self-
defense. (See People v. Thomas (2013) 218 Cal. App. 4th 630, 645;
People v. Millbrook, supra, 222 Cal.App.4th at pp. 1140–1141.)
But the evidence of fear, panic, and provocation in this case bears
no resemblance to the much stronger evidence in Thomas and
Millbrook. In any event, the jury was instructed that provocation
could reduce the degree of murder; had it believed Erik was
acting rashly because of his fear, it would have convicted him of
second degree murder or voluntary manslaughter.
29
Simply confronting Omar about his derogatory comments
regarding women does not amount to legally sufficient
provocation. Legally sufficient provocation “must go beyond
‘mundane annoyances,’ even if they might make an ordinary
person ‘act[ ] imprudently or out of anger.’ [Citation.] Heat of
passion requires ‘extreme intensity.’ ” (People v. McShane (2019)
36 Cal. App. 5th 245, 255–256, rev. granted on another ground,
Sept. 18, 2019, S257018, rev. dismissed Aug. 26, 2020.) Legally
adequate provocation cannot be based on mere hard looks and
taunting words. (People v. Gutierrez (2009) 45 Cal. 4th 789, 826
[voluntary manslaughter instruction not warranted where the act
that allegedly provoked the killing was no more than taunting
words, a technical battery, or slight touching].) Even a simple
assault, such as a tussle, does “not rise to the level of provocation
necessary to support a voluntary manslaughter instruction.”
(People v. Gutierrez, at p. 827; see People v. Manriquez, supra,
37 Cal.4th at p. 586 [calling defendant a “ ‘mother fucker,’ ” and
daring him to use his weapon if he had one, “plainly were
insufficient to cause an average person to become so inflamed as
to lose reason and judgment”]; People v. Najera (2006) 138
Cal. App. 4th 212, 216, 226 [being called a “ ‘faggot’ ” would “not
drive any ordinary person to act rashly or without due
deliberation”].)
There was no preexisting history of animosity between the
victim and appellants that might have suggested heat of passion;
they had never met before. It was undisputed that the victim did
not physically accost, touch, or lunge at either Erik or Omar; he
simply took a step toward them with his arms at his sides. The
video shows that after Erik left to retrieve the gun, Calvillo took
no action toward Omar that could be considered hostile or
30
aggressive.8 Legally sufficient provocation “requires more than
evidence that a defendant’s passions were aroused. The facts and
circumstances must be ‘ “sufficient to arouse the passions of the
ordinarily reasonable man.” ’ [Citation.]” (People v. Nelson,
supra, 1 Cal.5th at p. 539.) Accordingly, there was insufficient
evidence to support a heat of passion instruction.
(iii) Even if error, omission of the instruction
was harmless
Further, assuming for the sake of argument that the
instruction should have been given, the jury’s first degree murder
verdicts demonstrate that its omission was harmless. Error in
failing to instruct on a lesser included offense is harmless when
the jury necessarily decides the factual questions posed by the
omitted instructions adversely to the defendant under other,
properly given instructions. (People v. Manriquez, supra, 37
Cal.4th at p. 582; People v. Lewis, supra, 25 Cal.4th at p. 646;
People v. Peau (2015) 236 Cal. App. 4th 823, 830.)
Appellants’ jury was instructed with CALCRIM No. 522
that “[p]rovocation may reduce a murder from first degree to
second degree and may reduce a murder to manslaughter. The
8
Appellants argue that Calvillo was “pacing back and forth
in an agitated manner as he argued loudly and moved closer to
the group.” We have examined the videotape of the murder, and,
viewing it in the light most favorable to the defense, it simply
does not show that Calvillo was moving in a hostile or menacing
fashion. Appellants also argue that provocation existed because
Calvillo told Salinas to go get her cousin, which appellants
assumed meant Calvillo was “getting backup.” While this fact is
relevant to a self-defense or imperfect self-defense theory, it has
little bearing on the question of provocation.
31
weight and significance of the provocation, if any, are for you to
decide. [¶] If you conclude that the defendants committed
murder but were provoked, consider the provocation in deciding
whether the crime was first or second degree murder. Also,
consider the provocation in deciding whether the defendant
committed murder or manslaughter.” It was also instructed in
regard to premeditated and deliberate murder—the only theory
of first degree murder at issue—that it could not find
premeditation and deliberation unless the People proved beyond
a reasonable doubt that appellants “carefully weighed the
considerations for and against his choice and, knowing the
consequences, decided to kill.” The instruction further advised
that a “decision to kill made rashly, impulsively, or without
careful consideration is not deliberate and premeditated.”
(CALCRIM No. 521.)
In People v. Wharton (1991) 53 Cal. 3d 522, the jury was
given comprehensive instructions on provocation and heat of
passion, but the trial court improperly refused a defense request
that it also instruct that provocation could arise over time. (Id. at
pp. 569–572.) Wharton found the error harmless, explaining:
“By finding defendant was guilty of first degree murder, the jury
necessarily found defendant premeditated and deliberated
the killing. This state of mind, involving planning and deliberate
action, is manifestly inconsistent with having acted under the
heat of passion—even if that state of mind was achieved after a
considerable period of provocatory conduct—and clearly
demonstrates that defendant was not prejudiced by the failure to
give his requested instruction.” (Id. at p. 572.) Other cases are
in accord. (People v. Franklin (2018) 21 Cal. App. 5th 881,
894; People v. Peau, supra, 236 Cal.App.4th at p. 830 [first-degree
32
murder conviction rendered any failure to give heat-of-passion
instruction harmless]; People v. Speight (2014) 227 Cal. App. 4th
1229, 1246; People v. Millbrook, supra, 222 Cal.App.4th at
p. 1138 [verdict that a murder was willful, premeditated, and
deliberate is manifestly inconsistent with heat of passion].)9
The same analysis applies here. “We cannot see how a
determination that [defendant] carefully weighed his choice to act
and did not decide rashly or impulsively can coexist with the heat
of passion, which ‘arises when “at the time of the killing, the
reason of the accused was obscured or disturbed by passion to
such an extent as would cause the ordinarily reasonable person of
average disposition to act rashly and without deliberation and
reflection, and from such passion rather than from judgment.” ’
[Citation.]” (People v. Franklin, supra, 21 Cal.App.5th at p. 894.)
9
In People v. Berry (1976) 18 Cal. 3d 509, a case predating
Wharton, the court found the failure to give a heat of passion
instruction was not rendered harmless despite the fact the
defendant was convicted of first degree murder. (Id. at p. 518;
see People v. Ramirez (2010) 189 Cal. App. 4th 1483, 1488
[rejecting argument that conviction of first degree murder
rendered the failure to give a heat of passion instruction
harmless in light of Berry].) People v. Peau, acknowledging that
there was “some tension” between Berry and Wharton, reasoned
that the cases could “be reconciled and that Wharton’s more
recent reasoning” applied. (People v. Peau, supra, 236
Cal.App.4th at p. 831.) Relying on the principle that cases are
not authority for propositions not considered, Peau explained that
Berry never analyzed the question of whether the error was
harmless in light of the first degree murder finding. (Peau, at
pp. 831–832.) People v. Franklin agreed with Peau. (People v.
Franklin, supra, 21 Cal.App.5th at p. 894.) We do the same.
33
Given that the trial court properly declined to instruct the
jury on heat of passion voluntary manslaughter, and omission of
the instruction was harmless in any event, the court also
properly denied appellants’ motions for new trial insofar as they
were premised on this contention.
b. Failure to instruct on unanimity regarding the degree of
murder
Appellants argue that the trial court erred by failing to
instruct the jury that it must unanimously agree on the degree of
murder. This claim lacks merit.
We independently review a claim of instructional error.
(People v. Mitchell (2019) 7 Cal. 5th 561, 579.) We “must consider
whether there is a reasonable likelihood that the trial court’s
instructions caused the jury to misapply the law in violation of
the Constitution. [Citations.] The challenged instruction is
viewed ‘in the context of the instructions as a whole and the trial
record to determine whether there is a reasonable likelihood the
jury applied the instruction in an impermissible manner.’
[Citation.]” (Ibid.; People v. O’Malley (2016) 62 Cal. 4th 944, 991.)
The People are correct that this claim has been forfeited
because appellants did not object or seek a clarifying instruction
below. (See People v. O’Malley, supra, 62 Cal.4th at p. 991.)
Although a defendant may raise a claim that his substantial
rights were affected by instructions to which he did not object
(see § 1259; People v. Anderson (2007) 152 Cal. App. 4th 919, 927),
as we explain, appellants fail to make such a showing here.10
10
Appellants fail to persuade us that the trial court had a sua
sponte duty to give a unanimity instruction in addition to the
instructions it provided. (See People v. Kozel (1982) 133
Cal. App. 3d 507, 528–529.) The cases cited pertain to situations
34
In general, jurors need not unanimously agree on the
theory underlying a first degree murder verdict (People v. Potts,
supra, 6 Cal.5th at p. 1048), but they must unanimously agree on
the degree of murder. (People v. Taylor (2010) 48 Cal. 4th 574,
626; People v. Johnson (2016) 243 Cal. App. 4th 1247, 1278.) Here,
the trial court provided adequate instructions to inform the jury
of that principle. CALCRIM Nos. 520 and 521 informed jurors
that if they found a defendant committed murder, it was in the
second degree unless the People proved otherwise beyond a
reasonable doubt. CALCRIM No. 3550 informed jurors that
“Your verdict on each count and any special findings must be
unanimous. This means that, to return a verdict, all of you must
agree to it.” (Italics added.) The verdict form set forth the jury’s
finding regarding the degree of murder separately from its
finding of murder, stating: “We further find willful, deliberate
and premeditated murder in the FIRST DEGREE to be: TRUE.”
After the verdicts were read—including the finding that the
murder was in the first degree, using the verdict form’s
language—the jurors were polled. Each stated that this was his
or her verdict. Nothing in the parties’ arguments at trial
suggested the jury could find the murder to be in the first degree
if all jurors did not agree. We presume jurors are intelligent
in which the People presented evidence of more than one discrete
act that could have been the basis for a single count. In that
situation, either the court must instruct the jury that it must
unanimously agree on which specific act constituted the crime, or
the prosecutor must elect the specific act relied upon to prove the
charge to the jury. (See People v. Jo (2017) 15 Cal. App. 5th 1128,
1178.) But that was not what transpired here: there was only
one act that constituted murder.
35
persons, capable of understanding and correlating the
instructions given. (People v. O’Malley, supra, 62 Cal.4th at
p. 991.) Reasonable jurors in this case would have understood
they had to unanimously agree on the degree of murder.
People v. Thomas (2012) 53 Cal. 4th 771, is instructive. The
defendant there argued that the trial court erred by failing to
timely instruct with CALJIC No. 8.74, which stated that the jury
must unanimously agree on the degree of murder. Thomas
concluded that the instructions initially given properly informed
the jury of the unanimity requirement. (Thomas, at pp. 815–
816.) Those instructions—that the jury had to state in the
verdict form whether “ ‘you find the murder to be of the first or
second degree,’ ” and that all jurors must “agree to the decision
and to any finding you have been instructed to include in your
verdict”—are similar to those given here. (Id. at p. 816.)
Appellants’ citations to People v. Sanchez (2013) 221
Cal. App. 4th 1012, and People v. Johnson, supra, 243 Cal. App. 4th
1247, do not assist them. In those cases, the juries were
instructed that they need not unanimously agree on the theory of
murder, where the two theories presented led to different degrees
of murder. (People v. Sanchez, at p. 1024; People v. Johnson, at
pp. 1279–1280.) Here, in contrast, the jury was only given one
theory of first degree murder: premeditation and deliberation.
And, it was never instructed that its verdict on the degree of
murder need not be unanimous.11
11
For the first time in his reply brief, Erik asserts that the
trial court incorrectly instructed with a modified version of
CALCRIM No. 642, rather than with CALCRIM Nos. 640 or 641,
which he suggests would have more clearly stated the unanimity
requirement. Erik has forfeited this claim by failing to raise it in
36
c. Response to jury questions
Erik next asserts that the trial court improperly responded
to several questions posed by the jury during deliberations. Erik
has forfeited this claim, and fails to establish ineffective
assistance of counsel.
(i) Additional facts
During deliberations, the jury sent the following note to the
court: “Is Eric guilty of Murder 2 now? [¶] Is there a[n] option of
Murder 2 besides 1st degree & voluntary manslaughter? [¶]
What is imperfect manslaughter?”
Observing that the questions were “a little confusing,” the
trial court met with the parties to formulate appropriate
responses. The court expressed concern that asking the jury to
elaborate on what the questions meant might invade the jury’s
province and “get into . . . issues that they are experiencing in the
deliberation room.” It proposed to refer the jury to the
instructions given, explain that there is no such crime as
imperfect manslaughter, reiterate the principle that a defendant
is presumed innocent, and confirm that Erik was not guilty
unless the jury unanimously found him so.
Omar’s counsel concurred that the jury should be referred
to the instructions and reminded of the presumption of innocence.
Erik’s counsel stated, “I would ask that the court go with the
his opening brief. (People v. Bryant, Smith and Wheeler (2014)
60 Cal. 4th 335, 408; People v. Tully, supra, 54 Cal.4th at p. 1075;
People v. Montelongo (2020) 55 Cal. App. 5th 1016, 1030, fn. 8.)
For the same reason, Erik has also forfeited his contention that
the language in the verdict form does not show the jury actually
found he personally premeditated and deliberated, because the
form uses “the passive, not active, voice.”
37
response that I heard Your Honor articulate, which [as to the
first question] is no, not unless you unanimously decided he’s
guilty of second degree murder without a reasonable doubt.”
Counsel expressed concern that referring jurors to specific
instructions might signal that some instructions were more
significant than others; therefore, counsel asked the court to
avoid specifically referencing the instruction regarding aider and
abettor liability.
When the jury was brought into the courtroom, the trial
court responded to the first question by reminding jurors that
“the defendants are presumed to be not guilty. They are
presumed to be innocent,” and could be convicted only if “a jury is
convinced beyond a reasonable doubt that a defendant is guilty of
the charged crime. In this case, murder which has been charged.
So to answer the question, ‘is [Erik] guilty of Murder two now?’
My simple response is . . . only unless the jury finds otherwise
beyond a reasonable doubt. And until or unless a unanimous
decision is made by that jury as to [Erik] in the crime of murder,
he is presumed to be not guilty.”
As to the second question, the court provided this response:
“[I]s there a[n] option besides murder two, first-degree, or
voluntary manslaughter and the . . . simple answer is yes, and
it’s not guilty if the jury finds that the evidence of the trial leaves
you with a reasonable doubt as to whether either one or both
defendants are guilty of murder, first degree, second degree, or
voluntary manslaughter. So there is an option and it would be
not guilty.”12
12
Regarding the third question, the court stated that there is
no such crime as imperfect manslaughter, and gave a brief
explanation of voluntary manslaughter based on imperfect self-
38
While answering the questions, the court twice reiterated
that the jury could ask additional questions if it wanted further
clarification. It also advised that the jury could also ask for
readback of testimony, or additional argument from the parties
on specific points. Neither defense counsel expressed any concern
about or objection to the court’s responses. The jury did not pose
additional questions or ask for further argument.
(ii) Discussion
Erik contends the trial court provided “misleading and
prejudicial” responses to the jury’s questions. In his view,
implicit in the queries was the issue of whether Erik could be
convicted of second degree murder, even if Omar was guilty of a
greater offense. (See People v. Amezcua and Flores (2019) 6
Cal. 5th 886, 917 [an actual killer and an aider/abettor are not
always guilty of the same offense]; People v. Nero (2010) 181
Cal. App. 4th 504, 518 [aider and abettor can be guilty of a lesser
offense than the perpetrator].) He argues that the court should
have recognized the true import of the questions, and his counsel
should have offered clarifying instructions.
When a jury asks a question after retiring for deliberations,
section 1138 requires that the court provide information the jury
desires on points of law, and help it understand the legal
principles it is asked to apply. (People v. Hodges (2013) 213
Cal. App. 4th 531, 539; People v. Montero (2007) 155 Cal. App. 4th
1170, 1179.) “ ‘This does not mean the court must always
elaborate on the standard instructions. Where the original
instructions are themselves full and complete, the court has
defense. Erik does not challenge the court’s response to this
question.
39
discretion under section 1138 to determine what additional
explanations are sufficient to satisfy the jury’s request for
information. [Citation.] Indeed, comments diverging from the
standard are often risky.” [Citation.]’ ” (People v. Montero, at
p. 1179; People v. Williams (2015) 61 Cal. 4th 1244, 1267.) “ ‘We
review for abuse of discretion any error under section 1138’ ”
(People v. Hodges, at p. 539), and review de novo the accuracy of
any supplemental instructions provided. (People v. Franklin,
supra, 21 Cal.App.5th at p. 887.)
Erik has forfeited any claim of error. “ ‘When the trial
court responds to a question from a deliberating jury with a
generally correct and pertinent statement of the law, a party who
believes the court’s response should be modified or clarified must
make a contemporaneous request to that effect; failure to object
to the trial court’s wording or to request clarification results in
forfeiture of the claim on appeal.’ ” (People v. Boyce (2014) 59
Cal. 4th 672, 699; People v. Dykes (2009) 46 Cal. 4th 731, 802.)
People v. Shoals (1992) 8 Cal. App. 4th 475, 489, and People v.
Ross (2007) 155 Cal. App. 4th 1033, 1048–1049, cited by Erik, do
not suggest a different conclusion. In both cases, the court
provided a response to the jury’s questions without consulting
defense counsel. For obvious reasons, under those circumstances,
there was no forfeiture, but such is not the case here. Defense
counsel not only remained silent, but expressly approved of the
court’s responses.
In light of this forfeiture, Erik contends his attorney
provided ineffective assistance. To establish such a claim, a
defendant must show that counsel’s representation fell below an
objective standard of reasonableness under prevailing
professional norms, and there is a reasonable probability that,
40
but for counsel’s errors, the result of the proceeding would have
been different. (People v. Bell (2019) 7 Cal. 5th 70, 125–126;
People v. Brown (2014) 59 Cal. 4th 86, 109.)
Contrary to Erik’s argument, it was not “obvious” that the
jury intended to ask whether an aider and abettor could be
convicted of a lesser offense than the perpetrator. This meaning
is not readily apparent from the text of the jury’s questions,
which were less than straightforward. Erik nonetheless argues
that his counsel should have understood that the jury’s first
question reflected its belief that Erik was less culpable than
Omar, but was unsure whether it could convict him of a lesser
offense. As to the second question, he argues that the court’s
response indicated the only options were acquittal or first degree
murder, thereby “direct[ing] a finding of first degree murder.”
Thus, according to Erik, counsel provided ineffective assistance
by failing to request clarifying instructions.
We disagree. Erik’s contention that the court’s response
directed a verdict of first degree murder is inaccurate. The court
expressly stated that the jury must find Erik not guilty if it had a
reasonable doubt whether “either one or both defendants” were
guilty of “first degree, second degree, or voluntary manslaughter.”
The court thus conveyed that defendants could be convicted of
several different offenses, and also telegraphed that second
degree murder was an option for Erik. Counsel thus had no basis
to object on this ground.
Counsel’s failure to request amplification of the
instructions was a legitimate tactical choice. A reviewing court
will reverse a conviction based on ineffective assistance grounds
only if there is affirmative evidence that counsel had no rational
tactical purpose for an action or omission, was asked for a reason
41
and failed to provide one, or there could be no satisfactory
explanation. (People v. Hoyt (2020) 8 Cal. 5th 892, 958; People v.
Mai (2013) 57 Cal. 4th 986, 1009.) We accord great deference to
tactical decisions and presume that counsel’s actions fell within
the broad range of reasonableness and can be explained as a
matter of sound trial strategy. (People v. Mickel (2016) 2 Cal. 5th
181, 198; People v. Bell, supra, 7 Cal.5th at p. 125.)
Erik’s primary argument was that the killing was
manslaughter, based on defendants’ intoxication and an
imperfect self-defense theory; he also contended that he was not
an aider and abettor because he did not know and did not share
Omar’s murderous intent. In light of the defense theories,
counsel may have wished to avoid highlighting or seeming to
agree that Erik could be convicted of second degree murder,
hoping instead the jury would go with a voluntary manslaughter
verdict, or acquittal. We cannot say this tactical choice was
unreasonable. Thus, even assuming arguendo that Erik’s counsel
should have intuited a deeper meaning in the jury’s questions,
his choice to forgo further instruction on second degree murder
was not unreasonable.
5. Prosecutorial misconduct
Appellants contend the prosecutor committed prejudicial
misconduct during argument by improperly conflating the issues
of intent and premeditation, using a misleading example, and
suggesting premeditation could occur in an instant, all in
violation of their rights to due process, a fair trial, and a reliable
jury verdict. We discern no reversible error.
a. Applicable legal principles
“In California, the law regarding prosecutorial misconduct
is well settled: ‘When a prosecutor’s intemperate behavior is
42
sufficiently egregious that it infects the trial with such a degree
of unfairness as to render the subsequent conviction a denial of
due process, the federal Constitution is violated. Prosecutorial
misconduct that falls short of rendering the trial fundamentally
unfair may still constitute misconduct under state law if it
involves the use of deceptive or reprehensible methods to
persuade the trial court or the jury.’ [Citation.]” (People v.
Masters (2016) 62 Cal. 4th 1019, 1052.) When a claim of
misconduct is based on the prosecutor’s arguments, we consider
whether there is a reasonable likelihood the jury construed or
applied the challenged remarks in an objectionable
fashion. (People v. Woodruff (2018) 5 Cal. 5th 697, 755.) We
consider the statements in context, and view the argument and
instructions as a whole. (People v. Centeno (2014) 60 Cal. 4th 659,
667.) An advocate has “significant leeway in discussing the legal
and factual merits of a case during argument,” but it is
misconduct for a prosecutor to misstate the law. (Id. at p. 666;
People v. Bell, supra, 7 Cal.5th at p. 111.)
b. Forfeiture
To preserve a claim of prosecutorial misconduct, a
defendant must make a timely and specific objection and ask the
trial court to admonish the jury to disregard the improper
argument. (People v. Powell (2018) 6 Cal. 5th 136, 182.) Here,
neither defense counsel objected to the challenged portions of the
prosecutor’s argument, and appellants’ claims have been
forfeited. (People v. Covarrubias (2016) 1 Cal. 5th 838, 893–894;
People v. Centeno, supra, 60 Cal.4th at p. 674.) In light of this
forfeiture, appellants contend their attorneys provided ineffective
assistance. We have set forth the relevant principles regarding
such a claim, ante.
43
c. Statements during argument
During argument, the prosecutor argued that where intent
to kill was proven, “the crime can . . . be elevated to first-degree
murder if you have the additional elements of deliberation and
premeditation.” She explained the killer “doesn’t need to be deep
in thought for a set period of time for that killing to be
deliberate,” and a “cold calculated decision to kill can be reached
quickly.” Here, the killing “was intended. It was thought about.
It was executed.” She continued: “Now, we ask was the killing
premeditated? What premeditation is is did Omar decide to kill
before he committed the act that essentially killed [Calvillo]? Did
he decide he was going to kill before pulling the trigger nine
times? [¶] Now, Omar had to take many steps in order to reach
the desired outcome in order to kill [Calvillo].” The prosecutor
then detailed, at some length, each action leading to the murder.
She also referenced the firearms examiner’s testimony that the
gun had safety features that had to be disengaged, and the
trigger required considerable pressure to fire. After listing these
“steps,” she continued, “deliberation and premeditation often go
hand in hand. When you think about killing somebody, you
decide you’re going to kill them before you actually shoot them.
In this case, Omar thought about killing [Calvillo], thought about
all of the steps he would have to take in order to do so, went
through all of those steps because he formed the decision to kill
him before he did. That killing was premeditated.”
The cited portions of the prosecutor’s argument did not
impermissibly conflate the concepts of intent and premeditation.
The gist of the argument was that, because Omar had to engage
in a sequence of steps to commit the shooting, he had thought
about his actions and made a considered decision to kill. Jurors
44
would not have gathered, from the cited statements, that mere
intent to kill was the equivalent of premeditation and
deliberation. We “ ‘ “do not lightly infer” that the jury drew the
most damaging rather than the least damaging meaning from the
prosecutor’s statements.’ [Citation.]’ ” (People v. Covarrubias,
supra, 1 Cal.5th at p. 894.) Because the argument was not
objectionable, defense counsels’ performance was not objectively
unreasonable. “Failure to raise a meritless objection is
not ineffective assistance of counsel.” (People v. Bradley (2012)
208 Cal. App. 4th 64, 90.)
Nor are we convinced by appellants’ argument that the
prosecutor improperly argued the fact Omar fired multiple
rounds was sufficient, by itself, to prove premeditation and
deliberation. For one thing, the number and manner of shots
fired is relevant to the question of premeditation. (See People v.
Son (2020) 56 Cal. App. 5th 689, 692 [“There certainly are cases
where the number of shots fired can indicate premeditation, but
not always”]; People v. Francisco, supra, 22 Cal.App.4th at
p. 1192.) For another, the prosecutor did not state or imply that
the number of shots, by itself, was sufficient to prove
premeditation. No misstatement of the law is apparent.
d. Text messaging illustration
Appellants further contend that an illustration the
prosecutor used in closing was misleading. In that argument,
which we set forth in the margin, the prosecutor analogized
premeditation to the decision to text while driving.13 The
13
The prosecutor argued as follows: “To give you an example
of an act that is intentional, premeditated, deliberate, we’ll take
for example, texting while driving. When you text while on the
road, it’s an act that you do intentionally. It’s something that you
45
do on purpose. . . . . Not only is it an intentional act, it’s also a
premeditated act, meaning you decide to do it before you actually
do it. That’s all that means. You pick up your phone because you
decide you’re going to text while you’re driving. So the fact that
you pick up your cellphone to [send] a text message while you’re
on the road means that act was premeditated. You decided you
were going to do it before actually doing the act of texting. Now,
whether it’s deliberate or not. Now, the defense has kind of
described a deliberate act as something that requires extensive
consideration and that simply is not the case. You do have to
consider the action that you’re about to take and what may be
involved. So say, for instance, when you’re driving, and you think
about texting with your cellphone, you know that texting while
driving is likely dangerous. It’s likely against the law, and you
know that if you get caught by a police officer, you’ll likely get
pulled over. We know all of these things and your mind processes
these thoughts very quickly. I mean, in less than a second, you
can form the thought. You see your phone[,] you see it light up,
you grab it, and you want to [send] a text. This happens within
seconds. Where you intend to send a text message, you decide
you’re going to send it, and you deliberate about, am I going to
send it? Knowing the fact that it could be dangerous while
driving. It could cause you to get a ticket if an officer were to see
you. But our minds process many thoughts in very short
amounts of time. We’re able to do these things very quickly,
sometimes even simultaneously. So it doesn’t require what might
be described as in Lord of the Rings there’s a character called . . .
Gollum. How he sits at the pond and he’s talking to himself and
he says, oh, I want to get the ring, and then another side says, no.
You can’t but he’s your friend and then the other side says, oh,
but I still want—that’s not what we’re talking about here, ladies
and gentlemen. It doesn’t require you to make a—as the defense
described—a mental list of every single consequence that can
come from your action and think of what may be affected and
their families and who their families may be. That is not what
46
argument was aimed at showing that the process of
premeditation and deliberation did not need to be lengthy or
extensive.
Much of the information conveyed in the prosecutor’s
remarks was accurate. Premeditation and deliberation can occur
rapidly. (People v. Salazar, supra, 63 Cal.4th at p. 245; People v.
Potts, supra, 6 Cal.5th at p. 1027.) The type of “extensive
consideration” and “mental list” the prosecutor referenced are, as
she argued, not required. (See § 189.) The text message analogy
resembled, to some extent, an illustration found permissible in
People v. Avila (2009) 46 Cal. 4th 680. There, the prosecutor
“used the example of assessing one’s distance from a traffic light,
and the location of surrounding vehicles, when it appears the
light will soon turn yellow and then red, and then determining
based on this information whether to proceed through the
intersection when the light does turn yellow, as an example of a
‘quick judgment’ that is nonetheless ‘cold’ and ‘calculated.’ [The
prosecutor] then immediately said, ‘Deciding to and moving
forward with the decision to kill is similar, but I’m not going to
say in any way it’s the same. There’s great dire consequences
that have a difference here.’ ” (Id. at p. 715; see also People v.
Son, supra, 56 Cal.App.5th at pp. 692, 698–699 [yellow light
analogy to illustrate premeditation and deliberation was not
improper].)
Similarly, here, the prosecutor’s point was that when
considering whether to text and drive, one must evaluate a
variety of factors, such as safety and the potential consequences.
the law requires. So that, in fact, is a very simple example of an
intentional premeditated and deliberate act that people do . . . .”
47
Unlike in Avila, the prosecutor did not include a disclaimer that
the consequences of texting and driving were less dire than the
choice to commit a murder; however, this difference is
insignificant, given that it would have been obvious to jurors.
Arguably, the prosecutor gave a less detailed discussion of the
hypothetical texter’s decision-making process. But, the
prosecutor acknowledged that, “You do have to consider the
action that you’re about to take and what may be involved.” She
did not argue that appellants premeditated in a split second.
And, she voiced her agreement with defense counsel’s statement
that the test is the extent of the reflection, not the time, and a
decision to kill made impulsively or without careful consideration
is not premeditated and deliberate. Considering the argument in
context, we cannot say that the prosecutor’s illustration
amounted to a deceptive or reprehensible method, or infected the
trial with such a degree of unfairness as to render the subsequent
conviction a denial of due process.
To the extent the texting illustration was not a model
analogy in some respects, any misstep was harmless. There is no
reasonable probability that, had the challenged remarks been
excluded, a more favorable result for appellants would have
resulted. The jury was properly instructed on premeditation and
deliberation. “ ‘When argument runs counter to
instructions given a jury, we will ordinarily conclude that
the jury followed the latter and disregarded the former, for “[w]e
presume that jurors treat the court’s instructions as a statement
of the law by a judge, and the prosecutor’s comments as words
spoken by an advocate in an attempt to persuade.” [Citation.]’ ”
(People v. Centeno, supra, 60 Cal.4th at p. 676.) The jury was
instructed that the arguments of counsel were not evidence, that
48
it had to follow the law as the court explained it, and that if the
attorneys’ comments on the law conflicted with the court’s
instructions, it had to follow the instructions. The prosecutor
reiterated these points during her closing, stating: “please refer
to the jury instructions, not an attorney’s characterization of
them because the law is in the jury instructions.” Although
appellants attempt to attribute the jury’s questions, discussed
ante, to the prosecutor’s argument, we see no link. In sum, there
is no reasonable probability that, had the text messaging analogy
been excluded, the result of the proceeding would have been
different.
6. Cumulative error
Appellants assert that the cumulative effect of the
purported errors requires reversal, even if they were individually
harmless. As we have “ ‘either rejected on the merits
defendant[s’] claims of error or have found any assumed errors to
be nonprejudicial,’ ” we reach the same conclusion with respect to
the cumulative effect of any purported errors. (People v.
Cole (2004) 33 Cal. 4th 1158, 1235–1236.)
49
DISPOSITION
The judgments are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
DHANIDINA, J.
50