Filed 10/1/14 P. v. Riser CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

THE PEOPLE,                                                          B245327

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. YA075152)
         v.

DEANDRE BRANDON RISER et al.,

         Defendants and Appellants.




         APPEALS from judgments of the Superior Court of Los Angeles County. Mark
S. Arnold, Judge. Affirmed.
         Robert Franklin Howell, under appointment by the Court of Appeal, for Defendant
and Appellant Deandre Brandon Riser.
         Richard D. Miggins, under appointment by the Court of Appeal, for Defendant
and Appellant Olton Vernell Drake.
      John A. Colucci, under appointment by the Court of Appeal, for Defendant and
Appellant Helen Eva Spry.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Margaret E. Maxwell and
Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
       Defendants and appellants (defendants) Deandre Brandon Riser (Riser), Olton
Vernell Drake (Drake), and Helen Eva Spry (Spry), appeal from their convictions of
murder and attempted murder. Each defendant joins in any applicable arguments of their
codefendants. Challenging the admission of three surreptitiously recorded conversations
between Riser and Drake while sharing a jail cell, defendants assert violations of the
Fourth Amendment, the confrontation clause, and the hearsay rule. In addition, Spry
contends that the trial court erred in failing to give the jury accomplice instructions and
that the prosecutor argued an improper theory of guilt. Drake contends that the evidence
was insufficient to support a finding that he harbored an intent to kill. Drake and Spry
contend that a sentence enhancement must be stricken as unauthorized due to defective
pleading. We find defendants’ contentions to be without merit or forfeited, and affirm
the judgments.
                                     BACKGROUND
Procedural history
       All three defendants were named in each count of the nine-count information.
Count 1 charged them with the murder of Amador Cendejas-Cortes (Cendejas-Cortes), in
violation of Penal Code section 187, subdivision (a).1 Counts 2 through 9 charged
defendants with the attempted, willful, deliberate, and premeditated murder in violation
of sections 664 and 187, subdivision (a), of the following persons, respectively: Juan
Carlos Laben (Laben);2 Maribel Magallon (Magallon); Jesus Rodriguez Negrete (Jesus);
Hugo Sanchez (Sanchez); Jorge Cantu (Cantu); Mitsuhiro Nakano (Nakano); Jesus
Rodriguez Torres (Torres); and Bryan Rodriguez Negrete (Bryan).
       The information alleged with regard to counts, 1, 2, 3, 4, 5, and 6, that a principal
and Riser personally used and intentionally discharged a rifle, causing great bodily injury
or death to Cendejas-Cortes, Cantu, Laben, Magallon, Jesus, and Sanchez, within the

1      All further statutory references are to the Penal Code, unless otherwise indicated.

2    Laben spelled his name when he testified at trial, but the information was not
amended. We use his spelling.


                                              2
meaning of section 12022.53, subdivisions (b), (c), (d), and (e)(1). As to counts 7, 8, 9,
the information alleged that a principal and Riser personally used and intentionally
discharged a rifle, within the meaning of section 12022.53, subdivisions (b), (c), and
(e)(1). With regard to all nine counts, it was alleged pursuant to section 186.22,
subdivisions (b)(1)(C) and (b)(4), that the crimes were committed for the benefit of, at the
direction of, and in association with a criminal street gang, with the specific intent to
promote, further and assist in criminal conduct by gang members. The information
further alleged pursuant to the “Three Strikes” law (§§ 1170.12, subd. (a)-(d), 667, subd.
(b)-(i)), that Riser and Drake had each suffered a prior serious or violent felony
conviction or juvenile adjudication. For purposes of section 667.5, subdivision (b), Riser
was alleged to have suffered two prior convictions with qualifying prison terms.
       Defendants were jointly tried, and a jury found each defendant guilty of all nine
counts as charged, found the murder to be in the first degree, and as to Spry and Riser,
found all the attempted murders to have been willful, deliberate, and premeditated.
Through inadvertence the willful, deliberate, and premeditated finding was omitted from
Drake’s verdict forms for counts 2 and 6. Thus the jury made true findings on that
allegation only as to counts 3, 4, 5, 7, 8, and 9. The jury found true the gang and firearm
allegations as to all nine counts, including the allegation under section 12022.53,
subdivision (d), which had been alleged in the information only as to counts 1 through 6.
       Drake admitted a prior juvenile adjudication for robbery for purposes of the Three
Strikes law. Riser stipulated to the admission of conviction records, and the trial court
found that he had been convicted as alleged. Riser and Drake were sentenced November
6, 2012, and Spry was sentenced January 7, 2013. The trial court sentenced defendants to
aggregate prison terms as follows: Riser’s total term was 395 years to life; Drake’s total
term was 338 years 8 months to life; and Spry’s total term was 50 years to life. The trial
court awarded presentence custody credits, imposed mandatory fines and fees, ordered
defendants to provide DNA samples, and ordered defendants to pay victim restitution of
$52,925.43 as a joint and several liability.
       Defendants filed timely notices of appeal.


                                               3
Prosecution evidence
       The shootings and investigation
       On April 29, 2009, at approximately 10:30 p.m., Jaime Carpio (Carpio) was
cooking inside his taco truck at its usual location on Inglewood Avenue near its
intersection with Lennox Boulevard, with about 15 customers outside. When Carpio
heard gunshots and saw people collapsing or throwing themselves onto the ground, he
looked out the window, saw an African-American man wearing a black hooded
sweatshirt and blue pants, shooting a rifle toward his customers. When the shooting
stopped, the man walked quickly away toward Lennox Boulevard.
       Los Angeles County Deputy Sheriff Ernesto Castaneda and his partner arrived
within minutes and found a chaotic scene and six gunshot victims, including Cendejas-
Cortes who was soon declared dead by paramedics. He died when a bullet perforated his
brain and entered his brain stem. The surviving victims suffered the following wounds:
Laben was shot in the head; Cantu was shot in his right hip; Magallon was shot in the
chest as she stood next to Nakano; and Jesus was shot in the upper back as he stood next
to his father, his brother Bryan, and his cousin Sanchez, who was shot in his shin and
thigh. All the victims were customers of the taco truck.
       At the time of the shooting Detective John Sanchez was patrolling with his partner
Deputy Colter about a block from the crime scene. They heard what sounded like
fireworks and then saw a white two-door car pass them at a high rate of speed, eastbound
on Lennox Boulevard. The headlights of the patrol car illuminated the interior of the
white car as it passed, and Detective Sanchez could see a white female driver and an
African-American man in the front passenger seat. The deputies proceeded to the area of
Inglewood Avenue and Lennox Boulevard, where a man later identified as Fred Meza
(Meza) flagged them down, saying excitedly, “They just shot at us, they just shot at us,
they just shot up the taco truck.” When Meza described the shooter as a Black man who
retreated into the passenger seat of a white two-door car, the deputies asked Meza to
come with them in search of the car. Detective Sanchez went back on Lennox Boulevard
the way they came. As they searched the area they soon saw a white Camaro, the same


                                            4
white car they had seen earlier, coming out of the parking lot of the Top Value Market.
After Meza exclaimed from the backseat, “That’s the car, that’s the car,” the deputies
followed it, stopped it as backup arrived, and detained the occupants, later identified as
Riser, Drake, and Spry.
       About an hour later, Deputy Silvio Paz brought Carpio to the place where the
Camaro had been stopped. Carpio identified the pants worn by Riser as being the same
as worn by the shooter, but noted that he was not wearing the same shirt. Carpio
identified the black “hoodie” worn by Drake as resembling what the shooter had been
wearing.
       Witness Ramiro Huerta (Huerta) was also brought to the suspects’ location.
Huerta had been parking his van near the taco truck when he heard about 10 gunshots and
saw the shooter, whom he described as a man wearing a black hoodie and dark blue
jeans, shooting a long .22-caliber rifle toward a group of people near the taco truck.
Huerta then saw the shooter leave on Inglewood Avenue toward Lennox Boulevard.
When the deputies at the field show up showed him two African-American men, one by
one, he said the second person resembled the shooter and was wearing blue jeans similar
to the shooter’s, but the first person was wearing a black hoodie similar to the shooter’s.
       Since no weapon was found in the Camaro, deputies searched the nearby area. A
.22-caliber rifle was found under the tire of a water truck in the parking lot of the Top
Value Market. The overall length of the rifle was 40 inches and it had a magazine that
held 18 cartridges. Scratches on the rifle were consistent with it having been thrown
from a moving vehicle. An analysis of the DNA later extracted from the rifle identified
four people as possible contributors of the DNA: Drake, Spry, Riser, and Jamaine
Sumner. A fingerprint analysis of rifle and bullets revealed no latent prints. Firearms
experts determined that the expended casings found at the crime scene had been fired
from the rifle and that the rifle had misfired and jammed, leaving an unexpended bullet
with a strike mark in the chamber and eight rounds in the magazine. Particles consistent
with gunshot residue (GSR) were recovered from Drake’s hand and the black T-shirt
worn by Riser at the time of his arrest.


                                              5
       Surveillance video obtained from a market near the crime scene was located and
portions of it were played for the jury. The tape showed a dark figure emerge from a
white two-door car and then move westbound across the parking lot before disappearing
from view. The same dark figure is seen running eastbound through the parking lot and
disappearing two seconds before the white car is seen pulling away from the curb and
driving east on Lennox Boulevard. A black-and-white Sheriff’s car comes into view 29
seconds later, traveling west on Lennox Boulevard, stopping as a person approaches.
Moments later, the person gets into the patrol car behind the driver. The patrol car makes
a U-turn and then moves out of view.
       Eucalyptus Park incident and gang evidence
       At the time of the shootings, Riser and Drake were members of the West Side
118th Street Eucalyptus Gangster Crip gang, known as the Eucalyptus Mob, or for short,
“U-Mob” or “Eumob.” Spry was not a member, but she associated with the gang.
Favessi Peni Samatua (Samatua) testified that he was a Eumob member at that time,
although he later left the gang and moved out of state after being shot several times.
Samatua knew fellow Eumob members Riser and Drake and typically saw them several
times per week in 2009. Samatua had known Spry since high school, and during 2009
she would “hang out” with Eumob members occasionally. Samatua also knew Eumob
gang member Jamaine Sumner, who went by the nickname “J-Dog.” Samatua’s gang
name was “S” or “S-Loc.”
       Samatua testified that he spent much of the day of the shooting in Eucalyptus Park
in the City of Hawthorne, drinking with Drake and Riser. At one point a group of
Lennox 13 gang members (a despised rival gang) walked by the park “throwing” gang
hand signs and yelling their gang name. This made Samatua angry, and resulted in a
fistfight between the three Eumob members and the Lennox 13 members. Samatua
admitted that his group was outnumbered by the Lennox 13 group, but denied they were
beaten and claimed he did not know how the fight stopped. A few hours later, a car
containing four or five Lennox 13 gang members was driven back and forth on the street
next to the park. Again, the Lennox 13 members yelled out “Lennox” and made their


                                             6
gang’s hand signs. They were soon joined by a second group of Lennox 13 gang
members, more than 10, who arrived on foot, calling out “Lennox” and displaying their
gang’s hand signs. Another fight ensued, which ended when police arrived.
       Spry was also at the park with Riser and Drake sometime that day, but Samatua
did not know whether she was there at the time of the fights. Later, Riser was so upset
about the fight that he and Samatua nearly fought each other while discussing it. In the
evening Samatua left his companions and went home. The next morning he heard about
a shooting near a taco truck in the area of Inglewood Avenue and Lennox Boulevard,
which Samatua knew to be Lennox 13 gang territory. He testified that no Eumob
member would walk into that area without expecting to have problems with the Lennox
13 gang.
       The prosecution’s gang expert was Detective Keith Chaffin of the Hawthorne
Police Department. Detective Chaffin testified that Eumob’s primary activities included
robbery, burglary, narcotics offenses, weapons possession, drive-by and walk-up
shootings, and other violent crimes. Eumob’s territory consisted of a northwest corner of
the City of Hawthorne, including Eucalyptus Park, where its members often congregated.
The territory was bounded on the north by Imperial Highway, which also formed the
southern boundary of the rival Lennox 13 gang. The Lennox 13 gang’s territory included
the area around Inglewood Avenue and Lennox Boulevard, where the shooting took
place. Like most gangs, Eumob and Lennox 13 were both very territorial. Detective
Chaffin explained that gang members viewed their territory much as a nation would view
its sovereignty. As a result of the two gangs’ rivalry, both have committed violent
attacks on each other, usually in the form of shootings and other assaults.
       Detective Chaffin also explained the importance to gang members of “respect.” In
gang culture respect meant “everything” to gang members. Gang members believe the
more people fear them, the more respect they would have; thus respect is earned through
intimidation. For rival gang members to enter “enemy” territory to “stir things up” by
yelling out their own gang’s name and flashing their own gang’s hand signs would be a



                                             7
challenge to the rival gang and a show of disrespect. A gang member could lose the
respect of his gang if he were beaten by a rival gang member in a fistfight.
       Gang members gain status within the gang by “putting in work” or “going on
missions” for the gang, meaning committing crimes that benefit the gang. Gang
members, especially younger members, were expected to put in work for the gang, to be
active in gang activities, and to contribute money to the gang. This way, members earned
greater status within the gang and the gang itself earned greater respect.
       In response to a hypothetical question using facts mirroring the facts of this case,
Detective Chaffin gave his opinion that such a crime was committed in retaliation for the
fights that day in the park, which would benefit the Eumob gang by helping it to protect
its territory from the rival gang. It would also benefit the Eumob gang by increasing its
violent reputation, increasing respect for the gang, and making citizens afraid to
cooperate with the police. As long as the attack took place in Lennox 13 territory, it did
not matter that none of the victims was a gang member; the crime would still benefit the
gang and raise the status of the two members involved in its commission.
       Jailhouse conversations
       Spry was released about a day after her arrest and then rearrested five or six weeks
later. Drake and Riser remained in custody throughout the investigation. The lead
detectives in this case, Sergeant Shannon Laren and Sergeant William Cotter, arranged to
have Drake and Riser placed together in a cell with a recording device, on April 30, 2009,
the day after the shootings, and then again on May 5 and June 12. Three hours of
recordings were excerpted from the three sessions and played for the jury. Riser and
Drake discussed their participation in the crime, Spry’s involvement, the evidence,
witnesses, potential prison terms, and whether Spry and others would provide
information to law enforcement.
       Though Spry was not mentioned by name, Riser and Drake discussed a female
driver; for example, early in the April 30 conversation, Riser said, “She won’t get out just
cause she was the driver.” Drake complained that the route driven caused their arrest: “I
don’t know what the fuck she went that way for anyway. Straight towards the God damn


                                             8
[Sheriff] station. Well, if we wouldn’t have (Yawn) turned up in there in the first place,
we would have been down Hawthorne already.” Later, he said: “She should have went
the other way. We should a made that lap and gone down Century man. But it’s always
too late”; and, “Damn, wish we would’ve got in the car with J-Dog low key.” When
Riser said, “I hope she stays solid,” Drake thought the chances of that were “real slim,”
adding, “Ol’ bitch don’t look like she’s ready to do no fucking life.” Drake also
expressed concern that Samatua would talk: “Everybody know about that and they know
who did this shit. You know, S-Loc’s stupid ass gonna be at the park gibbering and shit.”
       Among other subjects in the April 30 conversation, Riser and Drake also
speculated about the evidence law enforcement had against them. Referring to the rifle,
Drake said, “They ain’t got no burner.” When Riser told him that the rifle had been
found and that he had seen photographs of it on the ground on the construction site,
Drake replied, “Oh, terrible.” When Riser complained that his DNA had been taken,
Drake said, “That shit ain’t gonna do nothing. You didn’t touch nobody.” Riser replied,
“I didn’t even touch nothing.” Drake expressed the opinion that there would be no
fingerprints on the gun and unless they found gun powder on Riser, there would be no
evidence against them.
       Riser admitted he was the shooter after Drake asked him: “Was you walking
forward or backing up when you was shootin?” Riser replied, “I was just standing there.”
Drake said he did not know whether a “deuce deuce rifle” would eject gunpowder close
to the shooter.3 Drake said it “didn’t even sound like no six shots,” but added, “Five got
hit and one got killed,” and concluded, “So that means, ever single bullet hit somebody.
There wasn’t no leftover bullets.” Riser corrected him: “There was in the gun.”
       In the May 5 conversation, Drake expressed his belief that Spry had talked to the
police because “The bitch went home.” Riser disagreed and believed that Spry was
released because “She got a DA reject.” But Drake insisted: “There’s no way in the

3      Sergeant Laren explained that the term “deuce deuce” was street vernacular for a
.22-caliber weapon. Sergeant Cotter testified that when he told Riser that they had
recovered a rifle, he did not specify the caliber or type of rifle.

                                             9
world that bitch could have a DA reject and we can’t if she was the fucking driver,”
adding, “[S]he can’t say we fucking forced her to do it. She just can’t.” Drake later said
that “the shooting isn’t what was sloppy. It’s that bullshit ass getaway . . . .” Drake said
he knew he “would be doing some type of time just for sitting in the back seat,” and
believed that Spry would do time because she was in the driver’s seat. When Drake said
“you’re going to do time, especially with her been in the fucking driver’s seat,” Riser
replied, “[Redacted] she knew. She knew -- before she turned the car on [redacted] she
knew.”
       Apparently discussing witness statements or a report, Drake said that he was
identified as the shooter, because witnesses said that the shooter was wearing a black
hoodie and he “was the only nigga with a hoodie on.” He said that “they didn’t have no
witnesses to say who did this . . . so they wrote that shit up theirself.” Drake later told
Riser that he had thrown his gloves out of the window on Hawthorne Boulevard as cars
passed by, and asked Riser whether he had thrown his; Riser replied that the police did
not recover gloves.
       Drake and Riser were again placed together on June 12, and were told that they
were there for a deputy to take photographs of their tattoos. Riser told Drake that he was
“not in no gang” and was going to tell them that a particular tattoo was for a “party
crew.” By the time of the June 12 conversation, the two defendants’ attorneys had told
them about the two prior recorded conversations. Referring to the prior recordings, Riser
said, “I don’t think they going be able to use that,” and Drake agreed. Drake later said, “I
don’t talk to no one,” and Riser said that he had not used the telephone because “I don’t
know when they recording some shit and when they ain’t recording some shit. You got
to speak in fucking . . . different languages . . . .”
       Riser and Drake again discussed the possibility that Spry was cooperating with
law enforcement. Riser said, “You know she’s snitchin’ too. She’s snitchin’.” Drake
agreed, and after describing her behavior in court and on the jail bus, he said, “I already
knew she’s going start telling.”



                                                10
       Riser had learned that GSR had been detected on his shirt and on the hoodie, and
that Drake’s DNA was found on the rifle. When he told Drake this, Drake replied,
“That’s impossible.” Riser suggested that it happened when Drake “was loading it up
that night.” He explained, “You was touching that shit,” referring to “[t]he piece that you
put the back of the shells at.” Drake replied that he had used a napkin not his bare hands.
       Riser then said that he was trying to learn who the witnesses were and to obtain
reports. He suggested that Drake have his “girl or whatever” find out the names of
people she knew, and “tell ‘em don’t come to court.” Riser knew that Meza, the owner of
the taco stand was the “main” witness. He explained, “That’s the one that told on us that
night. He’s the one that flagged the motherfuckers down,” and “He was in the back of
that cop car the night we seen him off the boulevard.”
       After discussing the possibility of attempt charges, Riser observed, “We fucked
up. We fucked up when we started talking.” Drake suggested that he ask his attorney
whether the recorded conversations could be used against them. Drake said that his
attorney told him that the detectives had tricked him. Riser replied, “Damn, they . . . [h]e
probably didn’t even know about me. Oh, god.”
       Riser told Drake that “she” had said that “it all started” with the “park incident
where we caught them coming from the school,” and that was “the reason we all went
over there.” Drake pointed out, “But see, you look, this gang shit we can’t buy because
none of them was gang members, none of them.” He added, “None of them . . . . That’s
what we was hoping it was. But they wasn’t.”
       Riser said that when he saw Spry crying in court, he gave her a look that indicated
“you was with it, bitch, you was with it.” Drake remarked, “You the dumb ass bitch that
drove up past the fucking police station.”
Defense evidence
       Defendants did not testify. Riser called Sergeant Cotter, who testified that he had
interviewed Samatua in July 2009 about the Eucalyptus Park incidents, and had asked
whether Drake or Riser appeared angry afterward. Samatua did not recall. Sergeant



                                             11
Cotter explained that Samatua was somewhat guarded in the interview, and that he had
been shot in the stomach just a month earlier.
       Carpio’s preliminary hearing testimony was read concerning his identification of
the shooter during the field show up the day of the shooting and later when he identified
Drake in court as the person he identified at the field show up.
                                       DISCUSSION
I. Jailhouse conversation
       A. Riser’s Fourth Amendment challenge
       Other than joining in his codefendant’s arguments to the extent they might benefit
him, Riser’s sole contention on appeal is that the jailhouse recordings were made in
violation of the Fourth Amendment. As respondent observes, Riser has forfeited this
contention, as he did not raise a Fourth Amendment claim in the trial court. (See People
v. Zepeda (2001) 87 Cal.App.4th 1183, 1192-1193.)
       Moreover, the contention lacks merit: pretrial detainees, like convicted prisoners
lack any legitimate expectation of privacy in jail cells. (People v. Davis (2005) 36
Cal.4th 510, 527; see Hudson v. Palmer (1984) 468 U.S. 517, 526-527.)
       Riser relies on dictum in an earlier case, that “‘it is conceivable that in a given
case the police might make representations to even an incarcerated defendant that would
cause him to have a right of privacy.’” (North v. Superior Court of Riverside County
(1972) 8 Cal.3d 301, 310-311.) In that case, a detective lulled the defendant into
believing that his conversation with his wife in a private office would be confidential.
(Id. at p. 311.) Here, Riser and Drake were codefendants, not spouses; they were in a jail
cell, not a private office, and no representations were made to them regarding privacy.
       Riser also suggests that defendants retain a limited expectation of privacy that
precludes jailhouse recordings for the purpose of collecting evidence, rather than for
legitimate security reasons. He relies on a line of cases that was expressly rejected by the




                                              12
California Supreme Court in People v. Davis, supra, 36 Cal.4th at pages 526-527.4 We
must do so as well. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.)
        B. Crawford
        Drake and Spry contend that the admission of the jailhouse conversations violated
the confrontation clause of the Sixth Amendment under the principles set forth in
Crawford v. Washington (2004) 541 U.S. 36 (Crawford). Their contention lacks merit, as
the confrontation clause applies only to testimonial hearsay. (Id. at p. 51; Davis v.
Washington (2006) 547 U.S. 813, 823-826 (Davis); People v. Gonzales (2012) 54 Cal.4th
1234, 1270.) An inmate’s surreptitiously recorded jailhouse conversation during which
there has been no law enforcement interrogation is not testimonial. (People v. Arauz
(2012) 210 Cal.App.4th 1394, 1401-1402; see Davis, supra, at p. 825, citing Bourjaily v.
United States (1987) 483 U.S. 171, 181-184 [statements unwittingly made to government
informant], and Dutton v. Evans (1970) 400 U.S. 74, 87-89 [conversation between
prisoners].)
        Spry and Drake both contend that because the recordings were made expressly for
use at trial, they are testimonial. This argument is apparently derived from the following
possible formulation of “testimonial” in Crawford: “‘[S]tatements . . . made under
circumstances which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.’” (Crawford, supra, 541 U.S. at p.
52.) A broad construction of that language has been rejected by the California Supreme
Court, as it “could apply to virtually every out-of-court statement purporting to describe
the circumstances of a crime or to identify its perpetrator, insofar as a reasonable person


4      E.g. United States v. Cohen (2d Cir. 1986) 796 F.2d 20; United States v. Friedman
(2d Cir. 2002) 300 F.3d 111; United States v. Willoughby (2d Cir. 1988) 860 F.2d 15;
Rogers v. State (Fla. 2001) 783 So.2d 980; McCoy v. State (Fla.Dist.Ct.App. 1994) 639
So.2d 163; State v. Henderson (1999) 271 Ga. 264 [517 S.E.2d 61]; Lowe v. State (1992)
203 Ga.App. 277 [416 S.E.2d 750]; State v. Jackson (1999) 321 N.J. Super. 365 [729
A.2d 55]; United States v. Hearst (9th Cir. 1977) 563 F.2d 1331.


                                             13
could conceive that the statement might later become criminal evidence.” (People v.
Cage (2007) 40 Cal.4th 965, 984, fn. 14.) Thus, as confirmed by Davis, “the proper
focus is not on the mere reasonable chance that an out-of-court statement might later be
used in a criminal trial. Instead, we are concerned with statements, made with some
formality, which, viewed objectively, are for the primary purpose of establishing or
proving facts for possible use in a criminal trial.” (People v. Cage, supra, at p. 984, fn.
14.) That formality is not present in a secretly recorded conversation between inmates.
(See People v. Arauz, supra, 210 Cal.App.4th at pp. 1401-1402; People v. Jefferson
(2008) 158 Cal.App.4th 830, 842-844.)
       C. Bruton
       Drake and Spry contend that the jailhouse recordings were admitted in violation of
the rule of Bruton v. United States (1968) 391 U.S. 123 (Bruton), which generally
precludes the admission of a statement or confession of a nontestifying defendant that
inculpates another defendant when the defendants are jointly tried. (Id. at pp. 127-128;
see also People v. Aranda (1965) 63 Cal.2d 518, 529.) Because Bruton is premised on
the Confrontation Clause, it does not apply to nontestimonial statements. (People v.
Arceo (2011) 195 Cal.App.4th 556, 571.) As we have already concluded that the
recorded conversations were not testimonial we reject this contention as well.5
       D. Declarations against interest
       Spry contends that the trial court abused its discretion in ruling that the jailhouse
conversations were declarations against interest and thus admissible under Evidence
Code section 1230. As relevant here, Evidence Code section 1230 provides an exception
to the hearsay rule when the “declarant is unavailable as a witness and the statement,
when made, . . . so far subjected him to the risk of civil or criminal liability, or . . .
created such a risk of making him an object of hatred, ridicule, or social disgrace in the

5       If the conversations had been testimonial, Drake’s contention would be meritless
for the additional reason that the rule does not apply to joint interrogations in which both
defendants implicate themselves. (People v. Osuna (1969) 70 Cal.2d 759, 765; see
People v. Jennings (2010) 50 Cal.4th 616, 662 (Jennings).)


                                               14
community, that a reasonable man in his position would not have made the statement
unless he believed it to be true.”6
         The court’s ruling was made in a pretrial hearing on Riser’s motion to sever
defendants’ trials and the prosecutor’s motion to admit the jailhouse recordings. Riser
objected to the admission of the conversations in a joint trial, challenging the entirety of
the conversations as a violation of the confrontation clause and the Bruton rule. Spry’s
counsel joined in the objection. Spry concedes that Riser and Drake implicated
themselves in some parts, but now for the first time on appeal, challenges particular
passages which implicate her without being specifically disserving to either Riser or
Drake.
         As Spry notes, a “hearsay statement ‘which is in part inculpatory and in part
exculpatory (e.g., one which admits some complicity but places the major responsibility
on others) does not meet the test of trustworthiness and is thus inadmissible.’
[Citations.]” (People v. Duarte (2000) 24 Cal.4th 603, 612.) Thus, “this hearsay
exception does not apply to collateral assertions within a declaration against penal
interest -- i.e., any portion of a statement that is not itself specifically disserving to the
declarant’s interests [citation] . . . .” (People v. Valdez (2012) 55 Cal.4th 82, 144
(Valdez).) However, in exercising its discretion in making this determination, each
challenged statement must be viewed in context. (Ibid.) “‘The trial court must look to
the totality of the circumstances in which the statement was made, whether the declarant
spoke from personal knowledge, the possible motivation of the declarant, what was
actually said by the declarant and anything else relevant to the inquiry. [Citations.]’
[Citation.]” (People v. Arauz, supra, 210 Cal.App.4th at p. 1400, quoting People v.
Greenberger (1997) 58 Cal.App.4th 298, 334.)
         Spry did not object to any particular statement or statements within the recordings
and did not ask the trial court to look at any particular statement either in isolation or in
context. A judgment may not be reversed by reason of the erroneous admission of

6    It is undisputed that Riser and Drake were unavailable because they could not be
compelled to testify. (See People v. Fuentes (1998) 61 Cal.App.4th 956, 961-962.)

                                               15
evidence unless: “(a) There appears of record an objection to or a motion to exclude or to
strike the evidence that was timely made and so stated as to make clear the specific
ground of the objection or motion; and [¶] (b) The [reviewing] court which passes upon
the effect of the error or errors is of the opinion that the admitted evidence should have
been excluded on the ground stated and that the error or errors complained of resulted in
a miscarriage of justice.” (Evid. Code, § 353.)
       A confrontation clause objection does not preserve a state law hearsay objection.
(Jennings, supra, 50 Cal.4th at p. 652.) Moreover, “it is settled law that where evidence
is in part admissible, and in part inadmissible, ‘the objectionable portion cannot be
reached by a general objection to the entire [evidence], but the inadmissible portion must
be specified.’ [Citations.]” (People v. Harris (1978) 85 Cal.App.3d 954, 957.) Where
the requirements of this rule were not observed, the appellant may not claim error in the
admission of the full statement. (People v. Romano (1961) 197 Cal.App.2d 622, 637.) A
trial court does not err “in failing to conduct an analysis it was not asked to conduct.”
(People v. Partida (2005) 37 Cal.4th 428, 435.)
       Spry has thus forfeited her hearsay claim. Moreover, even where hearsay
evidence was the only direct evidence of the defendant’s guilt, any alleged error in
admitting it will be found harmless when “‘profuse circumstantial evidence’” established
guilt. (Jennings, supra, 50 Cal.4th at p. 654, quoting People v. Gutierrez (2009) 45
Cal.4th 789, 813.) Here, the circumstantial evidence of Spry’s guilt was overwhelming.
Eucalyptus Park was in Eumob territory and members often congregated there. The
shooting was in the territory of Lennox 13, Eumob’s rival. Both gangs were violent and
territorial, and it was common knowledge in the Eumob gang that if one of its members
went into Lennox 13 territory, trouble was to be expected. Spry regularly associated with
Eumob gang members, and had been at Eucalyptus Park during that day when Lennox 13
members invaded Eumob territory, picked a fight, and humiliated gang members Riser
and Drake. Riser was visibly angry and faced the loss of respect from his gang. Spry
was certainly with Riser and Drake at the end of the evening: Detective Sanchez saw a
white female driver with an African-American man in the front passenger seat, speeding


                                             16
away from the area of the shooting moments after the crime and when he stopped the car
shortly thereafter, Spry was driving.
       Spry was thus most likely the driver who waited in the car while one of her
companions got out of her car in Lennox 13 territory, to walk around the corner looking
for trouble. She could not have overlooked the 40-inch-long rifle with an 18-cartridge
magazine he took with him and carried back to the car after several gunshots, nor was she
likely to have missed it when the rifle was thrown from the window. With such evidence,
the prosecution amply established that Spry was the getaway driver, that she knew why
she was driving Riser and Drake into Lennox 13 territory, knew the purpose of the rifle,
and knew what it was used for when shots were fired and the shooter came back to her
car. In their jailhouse conversations, Riser and Drake merely confirmed Spry’s knowing
participation in the crime.
       Spry acknowledges that the erroneous admission of hearsay evidence is tested for
prejudice under that standard enunciated in People v. Watson (1956) 46 Cal.2d 818, 836:
reversal is required only if the appellant shows a reasonable probability that without the
error, she would have obtained a more favorable result. Not only have we found no error,
we find no reasonable probability that exclusion of the jailhouse conversations would
have produced a more favorable result for Spry.
II. CALCRIM No. 335
       Spry contends that the trial court erred in refusing to instruct the jury with
accomplice instructions.7 Because a conviction may not be based on the uncorroborated
testimony of an accomplice (§ 1111), the trial court must instruct the jury sua sponte to




7      Spry’s counsel requested CALCRIM No. 334, which instructs the jury to
determine whether a witness was an accomplice and if so to view his testimony with
caution. Spry now contends that the court should have instructed with CALCRIM No.
335, that Riser and Drake were accomplices as a matter of law and to view their
testimony with caution. We assume for this discussion that Riser and Drake were
accomplices as a matter of law.


                                             17
view with caution the testimony of an accomplice and to require corroboration. (People
v. Verlinde (2002) 100 Cal.App.4th 1146, 1157.)
       “‘“[T]estimony” within the meaning of . . . section 1111 includes all oral
statements made by an accomplice or coconspirator under oath in a court proceeding and
all out-of-court statements of accomplices and coconspirators used as substantive
evidence of guilt which are made under suspect circumstances. The most obvious
suspect circumstances occur when the accomplice has been arrested or is questioned by
the police.’ [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 245; see also People
v. Carrington (2009) 47 Cal.4th 145, 190-191.)
       Circumstances are suspect when they are such that the accomplice is likely to have
had self-serving motives that could influence his credibility, such as a desire to shift the
blame. (People v. Howard (2008) 42 Cal.4th 1000, 1022-1023; People v. Belton (1979)
23 Cal.3d 516, 525-526.) Statements that “‘are not given under suspect circumstances,
. . . do not qualify as “testimony” and hence need not be corroborated under . . . section
1111.’ [Citations.]” (People v. Williams, supra, 16 Cal.4th at p. 245.) Examples of
circumstances that are not suspicious have included a surreptitious recording of two gang
members at a gang meeting incriminating themselves (People v. Maciel (2013) 57 Cal.4th
482, 527), noncustodial statements to a fellow drug user, made with no motive to
dissemble (People v. Williams (1997) 16 Cal.4th 153, 246), and declarations against
penal interest (People v. Brown (2003) 31 Cal.4th 518, 555-556). Under such
circumstances, statements are considered sufficiently reliable to require no corroboration,
and the trial court is not required to instruct the jury to view the accomplice’s statements
with caution and to require corroboration. (Brown, at p. 556.)
       Here, the trial court found that the jailhouse conversations were declarations
against penal interest. Further, although Drake and Riser were in custody, the statements
were not formal confessions or made in response to interrogation, and most of the
statements incriminating Spry were made during the first two conversations, before
Drake and Riser knew they had been recorded. They thus had little motive to dissemble,
the circumstances were not suspicious, and the trial court was not required to instruct.


                                             18
       Moreover, the omission of the instruction was harmless. Error in failing to
instruct “on accomplice liability under section 1111 is harmless if the record contains
‘sufficient corroborating evidence.’ [Citation.] Corroborating evidence may be slight,
entirely circumstantial, and entitled to little consideration when standing alone.
[Citations.]” (Valdez, supra, 55 Cal.4th at pp. 147-148.)8
       We reject Spry’s suggestion that unless the corroborative evidence established her
state of mind, it must be deemed insufficient to connect her to the crime. Corroborating
evidence must implicate the defendant, and to do so must relate to an element of the
crime. (People v. Boyer (2006) 38 Cal.4th 412, 467.) However, “[i]t need not be
sufficient to establish every element of the charged offense or to establish the precise
facts to which the accomplice testified. [Citations.] It is ‘sufficient if it tends to connect
the defendant with the crime in such a way as to satisfy the jury that the accomplice is
telling the truth.’ [Citation.]” (Valdez, supra, 55 Cal.4th at pp. 147-148.)
       In any event, we have already found overwhelming evidence of Spry’s knowing
participation apart from the codefendants’ statements: Spry was seen driving the car
shortly after the shooting; she was a regular associate of members of the Eumob gang, a
violent, territorial gang; in gang culture, respect was valued above all and trouble was to
be expected when entering enemy territory; Riser was visibly angered by the disrespect
shown by Lennox 13 members earlier in the day; Spry’s passenger held a 40-inch-long
rifle when he got out of the car; surveillance video showed that she waited for him to
return; and she sped away from the scene to an area where the rifle was dumped. The
corroborating evidence of her participation and her state of mind was thus sufficient, and
any error was harmless.


8      Spry acknowledges this test for harmless error set forth by the California Supreme
Court, but contends that the evidence lightened the prosecution’s burden, and she asks
that we instead deem it structural error which is reversible per se, or at the very least,
review prejudice under the test of Chapman v. California (1967) 386 U.S. 18, 24 [to
determine whether error was harmless beyond a reasonable doubt].) We decline, as our
Supreme Court is the highest court to have considered the issue, and we follow its
directive. (See Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)

                                              19
III. Theory of guilt
       Spry contends that she was denied a fair trial and due process because the
prosecution argued an improper theory of guilt and the trial court did not give a
preclusive instruction. Spry contends that the prosecutor told the jury, in effect, that facts
showing no more than liability as an accessory after the fact were sufficient for aider and
abettor liability.
       “A person aids and abets the commission of a crime when he or she, (i) with
knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose
of committing, facilitating or encouraging commission of the crime, (iii) by act or advice,
aids, promotes, encourages or instigates the commission of the crime. [Citation.]”
(People v. Cooper (1991) 53 Cal.3d 1158, 1164.) The jury was correctly instructed as to
the elements of aiding and abetting with CALCRIM No. 401.
       There was no instruction with regard to liability as an accessory. An accessory is
a “person who, after a felony has been committed, harbors, conceals or aids a principal in
such felony, with the intent that said principal may avoid or escape from arrest, trial,
conviction or punishment, having knowledge that said principal has committed such
felony or has been charged with such felony or convicted thereof, is an accessory to such
felony.” (§ 32.) Thus a getaway driver who was unaware of the crime until after all the
acts constituting it have been committed, but who assists in the escape after learning of
the crime, is an accessory after the fact. (People v. Cooper, supra, 53 Cal.3d at p. 1168.)
       Spry describes the challenged argument by paraphrasing part of it as follows:
“The prosecutor argued that even if . . . appellant Spry was unaware of the intentions of
the shooter that she would be liable as an aider and abettor because she drove the shooter
from the scene knowing what he had done.” (Italics added.) We agree with respondent
that Spry has taken the prosecutor’s remarks completely out of context and that she has
incorrectly paraphrased them. In fact, the prosecutor argued: “[The Camaro is] a very
small car. There is no way a person in the driver’s seat could have overlooked or not
seen that rifle. . . . Assuming arguendo, though, that, well, what if she didn’t see it?
We’ll give her that. Right? . . . But when they finally got to the taco truck, she saw Mr.


                                             20
Riser get out of the Camaro, heard gunshots, and at that point she should have know that
Mr. Riser just did some shooting. Why then didn’t she take off? Why then doesn’t she
leave? . . . She stayed there. Not only did she stay there . . . , she waited until [Riser] got
in the car and sped off. That conclusively proves that [Spry] knew what was going to
happen and she was down for the cause and did her role.”
       The prosecutor’s theory was not that merely driving away made Spry and aider
and abettor. The prosecutor argued that dropping Riser off, waiting for him even after
the gunshots, and then speeding away showed that she “knew what was going to happen.”
Thus the argument was not that Spry had the requisite state of mind because she knew
what had happened, as demonstrated by her driving to the scene and her conduct once
there. This was not improper argument. Facts that suggest aiding and abetting include
“‘presence at the scene . . . , companionship, and conduct before and after the crime,
including flight.’” (People v. Medina (2009) 46 Cal.4th 913, 924.) Thus, “among the
factors which may be considered . . . is the presence of the accused . . . at the scene of the
crime and his conduct afterwards. [Citation.]” (People v. Hawkins (1968) 268
Cal.App.2d 99, 104.)
       Moreover, as the prosecutor did not misstate the law and no objection was made to
her argument, Spry has forfeited this challenge. (See People v. Morales (2001) 25
Cal.4th 34, 43-44.) Spry contends that defense counsel’s representation was deficient
due to his failure to object. To prevail on a claim of ineffective assistance of counsel, a
defendant must demonstrate both defective performance and prejudice. (Strickland v.
Washington (1984) 466 U.S. 668, 688-694; People v. Rodrigues (1994) 8 Cal.4th 1060,
1126.) As the prosecutor’s argument did not incorrectly state the law, any objection
would have been overruled. Failing to make meritless objections is not defective
performance. (People v. Ochoa (1998) 19 Cal.4th 353, 463.)
       Further, defendant has shown no prejudice. The trial court instructed the jury that
an aider and abettor must know of the perpetrator’s unlawful purpose and must
“specifically intend[] to, and does, in fact, aid, facilitate, promote, encourage, or instigate
the perpetrator’s commission of that crime.” The court also instructed that “the fact that a


                                              21
person is present at the scene of a crime or fails to prevent the crime does not by itself
make him an aider and abettor.” We agree with respondent that there was “no reasonable
likelihood any juror would have applied the prosecutor’s comments erroneously.
[Citation.]” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 93.)
IV. Intent to kill
       Drake contends that there was insufficient evidence to support his attempted
murder convictions.9
       When a criminal conviction is challenged as lacking evidentiary support, “the
court must review the whole record in the light most favorable to the judgment below to
determine whether it discloses substantial evidence -- that is, evidence which is
reasonable, credible, and of solid value -- such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.” (People v. Johnson, supra, 26 Cal.3d at
p. 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) We must presume in
support of the judgment the existence of every fact the jury could reasonably deduce from
the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “The same standard applies
when the conviction rests primarily on circumstantial evidence. [Citation.]” (Ibid.) We
do not reweigh the evidence or resolve conflicts in the evidence. (People v. Young
(2005) 34 Cal.4th 1149, 1181.) Reversal on a substantial evidence ground “is
unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18
Cal.4th 297, 331.)
       “Attempted murder requires the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended killing. [Citations.] . . . [T]o
be guilty of attempted murder as an aider and abettor, a person must give aid or

9      More precisely, defendant contends that the evidence was insufficient to support
the prosecutor’s argument in summation. We review the record for substantial evidence
to support the judgment. (People v. Johnson (1980) 26 Cal.3d 557, 578.) Defendant
does not claim prosecutorial misconduct and cites no authority that would otherwise
require a review of the evidence supporting the prosecutor’s argument.


                                             22
encouragement with knowledge of the direct perpetrator’s intent to kill and with the
purpose of facilitating the direct perpetrator’s accomplishment of the intended killing --
which means that the person guilty of attempted murder as an aider and abettor must
intend to kill. [Citation.]” (People v. Lee (2003) 31 Cal.4th 613, 623-624.) “‘[I]t is well
settled that intent to kill or express malice, the mental state required to convict a
defendant of attempted murder, may . . . be inferred from the defendant’s acts and the
circumstances of the crime.’ [Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 701.)
       Initially, we observe that Riser’s intent to kill was well established. Riser
admitted in his conversation with Drake that he was the shooter. At least six rounds were
fired, as six victims were hit. A “shooter’s purposeful ‘use of a lethal weapon with lethal
force’ against the victim, if otherwise legally unexcused, will itself give rise to an
inference of intent to kill. [Citation.]” (People v. Smith (2005) 37 Cal.4th 733, 742.)
“That the shooter had no particular motive for shooting the victim is not dispositive,
although . . . where motive is shown, such evidence will usually be probative of proof of
intent to kill.” (Ibid.) Riser had been disrespected by enemy gang members earlier that
day, and a motive to kill may be reasonably inferred from the hatred of rival gang
members. (People v. Rand (1995) 37 Cal.App.4th 999, 1001-1002.) When a gang
member fires multiple shots at a group of people in rival gang territory it is reasonable to
infer that he harbored an intent to kill. (See People v. Francisco (1994) 22 Cal.App.4th
1180, 1192.)
       Drake’s motive may be inferred from the same facts: Drake was also a Eumob
gang member; he was also at the park earlier that day with Riser and Samatua, and was
subjected to the disrespect of rival gang members. As the gang expert testimony
demonstrated, Drake had reason to accompany Riser, his fellow gang member, on the
“mission” into Lennox 13 territory. Because the rival gang had effectively challenged
Drake’s gang, causing it to lose respect, Drake would face the loss of status within his
gang if he did not rise to the challenge.
       Drake claims that he made no statement in the jailhouse conversations indicating
that he knew of Riser’s intent beforehand. We disagree. First, Drake did not correct


                                              23
Riser or indicate any disagreement with him when Riser said that “it all started” with the
“park incident where we caught them coming from the school,” and that was “the reason
we all went over there.” Drake then indicated that their intent was to shoot rival gang
members when he said that “none of them was gang members,” and added, “None of
them. . . . That’s what we was hoping it was. But they wasn’t.” Drake said “we”; he did
not simply say that Riser was hoping they were gang members. The jury was instructed
on the law of adoptive admissions, and could reasonably have inferred Drake’s motive
and intent from his own words and reactions to Riser’s words. (See Evid. Code, § 1221;
People v. Riel (2000) 22 Cal.4th 1153, 1189.)
       Drake also argues that the following facts prove nothing: merely loading the rifle,
his DNA on the rifle, the GSR on his hand, and his admission that he had gloves. He also
suggests that his conduct after the shooting cannot provide substantial evidence of his
intent prior to the shooting. Such arguments might have more force if each such fact is
viewed in isolation. However, intent to kill must be inferred from all the circumstances
and all defendant’s conduct. (People v. Chinchilla (1997) 52 Cal.App.4th 683, 690.) An
aider and abettor’s mental state may be inferred from his “‘presence at the scene . . . ,
companionship, and conduct before and after the crime, including flight.’” (People v.
Medina, supra, 46 Cal.4th at p. 924.) Thus, the jury could reasonably infer an intent to
kill by considering not only the act of loading the rifle, the DNA on it, and the GSR on
Drake’s hand, but also Drake’s use of a napkin to avoid fingerprints and GSR, his
throwing his gloves out the window soon after the shooting, his expressed intent to shoot
rival gang members, his membership in the same gang as Riser and their companionship
during that day, his presence in the car at the crime scene, and his flight with Riser after
the shooting.
       We conclude from consideration of all the evidence in the light most favorable to
the judgment that substantial evidence supported the judgment, and further, that any
rational jury would have found beyond a reasonable doubt that Drake possessed the
requisite intent to kill.



                                             24
V. Pleading variance
       Drake and Spry contend that the sentence enhancement imposed as to counts 7, 8,
and 9 pursuant to section 12022.53, subdivision (d), must be stricken as unauthorized due
to defective pleading.10
       Section 12022.53 provides sentence enhancements for the discharge of a firearm
in the commission of enumerated crimes, and under subdivision (d) of that section, an
enhancement of 25 years to life is applicable when discharging the firearm has caused
great bodily injury or death. The information alleged with regard to counts 1, 2, 3, 4, 5,
and 6, that a principal personally and intentionally discharged a rifle, causing great bodily
injury or death to a victim within the meaning of subdivisions (b), (c), (d), and (e)(1). As
to counts 7, 8, 9, the information alleged that a principal personally used and intentionally
discharged a rifle, within the meaning of subdivisions (b), (c), and (e)(1).
       As the attempted murders were the result of the same incident that caused great
bodily injury and death to Cendejas-Cortes, the enhancement under section 12022.53,
subdivision (d) could have been properly alleged as to all counts, even as to counts 7, 8,
and 9, involving victims who did not suffer great bodily injury. (See People v. Oates
(2004) 32 Cal.4th 1048, 1055-1057.) The information alleged in counts 1 through 6 all
the facts necessary to the enhancement under subdivision (d), but not in counts 7, 8, and
9.
       “‘No principle of procedural due process is more clearly established than that
notice of the specific charge, and a chance to be heard in a trial of the issues raised by
that charge, if desired, are among the constitutional rights of every accused in a criminal
proceeding in all courts, state or federal.’ [Citation.]” (People v. Thomas (1987) 43
Cal.3d 818, 823, quoting Cole v. Arkansas (1948) 333 U.S. 196, 201.) Thus, for
example, a court lacks jurisdiction to convict the defendant of an uncharged offense that
is not necessarily included in the alleged offense. (People v. Lohbauer (1981) 29 Cal.3d
364, 368.)


10     All further references to statutory subdivisions are to section 12022.53.

                                             25
       “‘“Due process of law requires that an accused be advised of the charges against
him in order that he may have a reasonable opportunity to prepare and present his defense
and not be taken by surprise by evidence offered at his trial.” [Citation.]’ [Citation.]”
(People v. Lohbauer, supra, 29 Cal.3d at p. 368.) Such notice need not necessarily be
given “by a factually detailed information” but may also be given by preliminary hearing
evidence and obtained through discovery. (People v. Jennings (1991) 53 Cal.3d 334,
358.) “‘The test of the materiality of variance in an information is whether the pleading
so fully and correctly informs a defendant of the offense with which he is charged that,
taking into account the proof which is introduced against him, he is not misled in making
his defense.’ [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 427.) Thus, striking
an enhancement is unwarranted where defendant has had sufficient notice that it will be
imposed if proven, and the defendant has not been misled to his prejudice. (People v.
Thomas, supra, 43 Cal.3d at pp. 830-831.)
       Relying on People v. Mancebo (2002) 27 Cal.4th 735, People v. Botello (2010)
183 Cal.App.4th 1014, and People v. Arias (2010) 182 Cal.App.4th 1009, Drake
contends that the issue cannot be forfeited by a failure to raise it in the trial court, even
where the defendant is on notice of the facts supporting the enhancement and the jury has
found those facts to be true. We need not decide whether defendants have forfeited the
issue, as it is apparent they received sufficient notice to satisfy due process. We also
agree with respondent that the cited cases are distinguishable. There, sentences were
imposed without sufficient notice to satisfy due process, as the enhancements were
neither specially alleged nor presented to the jury to make a specific finding. (See
Mancebo, at pp. 743, 747-749; Arias, at p. 1017; Botello, at pp. 1017, 1021.)
       Here, preliminary hearing testimony included the facts of the shooting and
Detective Laren’s description of arriving at the crime scene and finding Cendejas-Cortes
dead from an apparent gunshot wound to the head. The facts necessary to support a
section 12022.53, subdivision (d) enhancement were then alleged in the information with
regard to counts 1 through 6. After the parties rested at trial, the trial court instructed the
jury to determine as to all counts whether a principal personally and intentionally


                                              26
discharged a firearm and caused great bodily injury or death, and the court expressly
referred to counts 1 through 9. The verdict forms for counts 7, 8, and 9, like the verdict
forms for counts 1 through 6, directed the jury to find true or not true “the allegation,
pursuant to Penal Code section 12022.53(d), that a principal discharged a firearm, to wit,
a rifle that proximately caused great bodily injury or death to Amador Cendejas-Cortes.”
The jury found the allegations true.
       Under nearly identical circumstances, an appellate court held that the defendant
was afforded sufficient notice that the enhancement applied to all counts. (People v. Riva
(2003) 112 Cal.App.4th 981, 1001.) The court pointed out that section 12022.53,
subdivision (d) requires pleading necessary facts, but does not specify where in the
information the facts must be alleged. (Riva, at p. 1001.)11 The defendant thus had fair
notice of the facts of the enhancement, and a failure to plead the same facts in all counts
did not interfere with his ability to defend against them. (Id. at p. 1002.)
       Here moreover, defendants do not claim to have been misled by the variance. The
death of Cendejas-Cortes was at issue regardless, and defendants do not claim that their
defense would have been any different or that they would have proceeded in any other
way. Defendants’ counsel each stated on the record that they had reviewed the proposed
jury instructions and had no objection to any of them. The record reflects that all counsel
expressly agreed to the verdict forms, including the finding on subdivision (d) on each of
the nine counts. After the jury reached their verdicts but before it was pronounced, a
juror questioned the verdict forms because the same victim appeared in the special
allegations. The trial court also questioned whether the subdivision (d) enhancement

11      The pleading requirements, which are set out in subdivision (j) of section
12022.53 and remain unchanged since Riva was published, are as follows: “(j) For the
penalties in this section to apply, the existence of any fact required under subdivision (b),
(c), or (d) shall be alleged in the accusatory pleading and either admitted by the
defendant in open court or found to be true by the trier of fact. When an enhancement
specified in this section has been admitted or found to be true, the court shall impose
punishment for that enhancement pursuant to this section rather than imposing
punishment authorized under any other provision of law, unless another enhancement
provides for a greater penalty or a longer term of imprisonment.” (Italics added.)

                                             27
could be applied to all counts based upon the death of a single victim. The prosecutor
explained the rule, and later supplied the citation to People v. Oates, supra, 32 Cal.4th
1048. She and Drake’s counsel represented to the court that all counsel had agreed to the
verdict forms. Spry brought a motion for new trial, but did not mention the variance.
Finally, none of the defendants objected when the trial court included the enhancement in
their sentences.
       We construe counsels’ actions as an acknowledgement that notice to the
defendants was sufficient, they had not been misled, and their defense had not been
affected. Indeed, any objection would most likely have led to an amendment to conform
to proof, as defendants did not have to defend against any new facts, and had been given
sufficient notice by the preliminary hearing, the information, discovery, trial, instructions,
the verdict forms, and their conference regarding the verdict forms. (See § 1009.) The
sentence enhancements are thus not unauthorized and striking them is unwarranted.
                                      DISPOSTION
       The judgments are affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                                  ____________________________, J.
                                                  CHAVEZ
We concur:


__________________________, P. J.
BOREN


__________________________, J.*
FERNS



________________________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


                                             28
