Filed 12/30/14 P. v. Williams CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE



THE PEOPLE,                                                          B252407

         Plaintiff and Respondent,                                   (Los Angeles County Super. Ct.
                                                                      No. GA077852)
         v.

DEXTER PAUL WILLIAMS,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles, Janice C. Croft,
Judge. Affirmed.
         J. Kahn, under appointment by the Court of Appeal, for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Chung Mar, Deputy Attorney General, and Jessica C. Owen, Deputy Attorney
General, for Plaintiff and Respondent.
                                              __________________
       The jury convicted defendant and appellant Dexter Paul Williams of first degree
murder (Pen. Code, § 187),1 and found true the allegation of personal use of a firearm (§
12022.53, subd. (d)).2 In a bifurcated proceeding, the court found true the allegations
that defendant sustained two prior convictions under section 667, subdivision (a), and the
three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and served four prior
prison terms under section 667.5, subdivision (b).
       The trial court sentenced defendant to 110 years-to-life in state prison, comprised
of 25 years-to-life on the murder conviction, tripled under the three strikes law, 25 years-
to-life for the gun enhancement, and 10 years for the two prior convictions pursuant to
section 667, subdivision (a).
       Defendant contends that the trial court abused its discretion in admitting
prejudicial gang evidence and a recording of a “jail call” between defendant and his
mother. Alternately, he argues that cumulative error deprived him of a fair trial.
       We affirm the judgment.


                                           FACTS3


       On August 28, 2004, Gabriela Ruiz and her brother Angel had a party at their
parent’s house in Monrovia. Angel was a member of Monrovia Nuevo Varrio (MNV), a
predominantly Hispanic gang that also had some White and Black members. Gabriela
did not associate with a gang. Because the siblings had different friends the partygoers
split into two groups, with Gabriela’s friends mostly hanging out on the patio, and



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

       2 This was defendant’s second jury trial. The first was declared a mistrial after the
jury declared it was deadlocked.

       3The facts are as presented by the prosecution. The defense did not present any
evidence.

                                               2
Angel’s friends congregating in the alley. The party was attended mostly by Hispanics,
but a few Blacks were also present.
       Many MNV gang members attended, including Derrick Charles (aka
Travieso), Jorge Mendez (aka Snuffy), and Teddy Tamayo (aka Valente). The murder
victim, Ernesto Granado (aka Baby Face), also a gang member, arrived with Tamayo. A
few hours after Mendez got to the party, defendant arrived in a light-colored car, which
he parked off to the side in the alley. Defendant was an older MNV member, and had the
moniker “Sombra,” which is Spanish for “Shadow.” Defendant said hello to some of the
gang members in the alley and headed toward the house, where some of Gabriela’s
friends were congregated.
       Defendant walked up to a group that included Joseph Escobar, Amanda
Arredondo, Shannon Nevarez-Garcia, and Gabriela’s older brother, Jose. No one in the
group knew defendant. Defendant asked Escobar for a cigarette and was given a
Marlboro Red. Escobar then left, because he did not know defendant and he felt
awkward. Arredondo and Nevarez-Garcia also felt uncomfortable. Eventually, all of
Gabriela’s friends left defendant to go inside. Defendant appeared to be offended by this,
and Arredondo tried to “diffuse the situation,” but defendant appeared to be getting
angry. Gabriela went over to defendant and asked if he was looking for his friends. She
indicated that Angel’s group was in the alley.
       Later in the evening, Mendez saw defendant and Granado standing in the alley in a
confrontational way. Tamayo initially told police that he heard someone yell a racial
epithet, although he denied making that statement at trial. Granado threw his arms up at
defendant in a challenging manner, and then turned away from defendant. Defendant
then pulled out a gun and fatally shot Granado once in the back of the head. After the
shooting, everyone scattered, but Gabriela, who was in the house, ran out to the alley.
She thought the gun shot was a loud firecracker, and assumed her brother was setting off
fireworks. Gabriela then noticed Granado’s body lying on the ground near defendant’s
car. She thought that Granado was drunk or had gotten in a fight. Defendant got into the
car and tried to leave, but Granado’s body was behind his left tire and blocked him from

                                             3
driving away. Defendant tried to back over the body. Gabriela tried unsuccessfully to
revive Granado, so she banged on the car and yelled for defendant to stop driving because
there was a body behind his car. She screamed for someone to call the police. Defendant
told her not to call. She was able to move Granado with her brother’s help. Once
Granado’s body was clear of defendant’s car, Gabriela saw blood on his head. Defendant
drove off.
       Detective Robert Manuel of the Monrovia Police Department’s Crimes Against
Persons Unit was initially assigned to investigate. Despite his efforts, the crime remained
unsolved in 2008. The investigation was reopened by a multi-agency task force assigned
to unsolved gang cases. Monrovia Detective Stewart Levin and Los Angeles County
Sheriff’s Detective Timothy Brennan investigated Granado’s murder. Witnesses to the
crime were reinterviewed as part of the investigation. In the course of one such
interview, Escobar stated for the first time that he had given defendant a Marlboro
cigarette. Detective Levin had Marlboro cigarette butts found at the crime scene tested
for DNA. Defendant’s DNA was found on one cigarette from the scene.
       Detective Brennan heard that Mendez had information about the murder, and
picked him up on a possible probation violation. Mendez denied being at the party
initially, but then said that he saw defendant shoot Granado. He recanted his statement at
defendant’s first trial, but decided to testify in the second trial because he “would never
want [his] daughter’s life to be taken away from [him] as a father in the way that
[Granado’s] life was taken away from him . . . .” At the retrial, Detective Levin testified
that Mendez told him he was afraid for his family a few days prior to the first trial.
Mendez had relocated, but a brick had been thrown through his window after he moved.
Mendez testified under a grant of immunity.
       Detective Brennan interviewed Charles, who said that “Shadow smoked Baby.”
       Detective Brennan also interviewed defendant. Defendant denied being at the
party several times and said that he attended a family funeral that weekend. During the
trial, Detective Levin began to listen to calls that defendant had made from jail. In one
call defendant made during the first trial, he told his mother, “You guys are going to have

                                              4
to communicate more about this and get it together so when the questions are asked like
that or when you’re talking to [the investigator], everybody can have the same thing to
say pretty much you know what I mean?”


                                      DISCUSSION


Gang Evidence


       Prior to trial, defense counsel moved to exclude all gang evidence and gang
membership evidence in the absence of a gang allegation under section 186.22, citing to
People v. Cardenas (1982) 31 Cal.3d 897 (Cardenas). He argued that the murder motive
was just as likely personal as gang motivated, and that gang evidence would be
marginally relevant, highly prejudicial, and entail significant consumption of time.
Alternately, he sought to exclude the testimony of Detective Brennan, in his capacity as
an expert witness on gangs. Defense counsel stated that the evidence could be brought in
through other witnesses, including Charles, who had been “very forthright” about what
can happen to a gang member who comes to trial to testify. If the trial court allowed
Detective Brennan to testify as an expert, defense counsel requested that his curriculum
vitae be pared down to exclude testimony that he traveled to be involved in other
investigations, which was “somewhat over the top and unnecessary.”
       The prosecution argued that the gang evidence was extremely probative to the
case. Defendant was significantly older than most of the partygoers, and the fact that he
was a gang member and that there were other members of his gang present would explain
his presence there. The gang testimony would also explain why people scattered after the
shooting and did not come forward to testify, despite the fact that there was a crowd and
likely many witnesses. Mendez said that a brick had been thrown through his window
prior to him changing his testimony in the last trial. Detective Brennan could explain the
fear and intimidation caused when one gang member shoots another. Detective
Brennan’s curriculum vitae should not be pared down because it was important to show

                                             5
why the task force chose to review the unsolved case again in 2009. Detective Brennan
has specialized training in the area of gangs and it would be important for the jury to
know that. He had numerous local contacts that he could utilize to track down potential
witnesses.
       The trial court ruled that the gang evidence was “very probative,” and allowed it to
be admitted for the purposes of motive, intent, and witness credibility. The trial court
forbade any testimony on predicate acts or crimes of the gang. It limited the purpose of
such evidence with a jury instruction that had been given at the previous trial. The
instruction stated:
       “You may consider evidence of gang activity only for the limited purpose of
deciding whether the defendant had a motive to commit the crime charged. [¶] You may
also consider this evidence when you evaluate the credibility or believability of a witness
and when you consider the facts and information relied on by an expert witness in
reaching his or her opinion. [¶] You may not consider this evidence for any other
purpose. You may not conclude from this evidence that the defendant is a person of bad
character or that he has a disposition to commit crime.”
       Detective Brennan testified as the prosecution’s gang expert at the trial. He
explained that he was part of a multi-agency task force formed in 2008 to respond to the
approximately 90 gang-related shootings that occurred in Monrovia between 2006 and
2008. He explained that gang loyalty is very important, and that if a gang member
snitches to police it is considered disloyal and disrespectful. Gang members may retaliate
against the “snitch” or his family members by violently assaulting or killing them. Gang
culture is hierarchical, and if an older member is disrespected, he must respond forcefully
to maintain respect, especially if other gang members are present. This is critical to
showing that the gang member will back up other members when they commit crimes,
which they are encouraged to do to gain respect.
       In closing argument, the prosecutor explained that it was not easy for witnesses to
come forward “in a gang case” because with the label of “snitch” hanging over them,
they could get into big trouble if they were sentenced to prison. The prosecutor urged the

                                             6
jury to keep this in mind when evaluating Mendez’s credibility. The prosecutor argued
that loyalty was critical to the gang’s survival, and that members had to show how tough
they were. Defendant acted the way that he did to maintain respect in front of other gang
members.
       On appeal, defendant contends that the trial court abused its discretion in
admitting the gang evidence because it was highly inflammatory and prejudicial, and
only minimally probative. We disagree.4
       In general, evidence is admissible if its probative value is not substantially
outweighed by the probability that it will unduly consume time, “create substantial
danger of undue prejudice,” confuse the issues, or mislead the jury. (Evid. Code, § 352.)
The courts recognize that gang evidence may have a “highly inflammatory” impact.
(People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167 (Samaniego).) Where no gang
enhancement is involved “evidence of gang membership is potentially prejudicial and
should not be admitted if its probative value is minimal.” (People v. Hernandez (2004)
33 Cal.4th 1045, 1049 (Hernandez).) Nevertheless, gang evidence may be admitted in
the absence of a gang allegation “if it is relevant to a material issue in the case other than
character, is not more prejudicial than probative, and is not cumulative.” (Samaniego,
supra, at p. 1167.) “[E]vidence of gang membership is often relevant to, and admissible
regarding, the charged offense. Evidence of the defendant’s gang affiliation—including
evidence of the gang’s territory, membership, signs, symbols, beliefs and practices,
criminal enterprises, rivalries, and the like—can help prove identity, motive, modus
operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt



       4   In support of his contention, defendant cites to defense counsel’s objections and
the trial court’s rulings in the first trial. We note that the trial court inquired whether the
parties made any stipulations that these objections and rulings stay in effect at the second
trial, and defense counsel responded that there was no stipulation and the issues would
need to be relitigated. We will not consider the objections and rulings made at the prior
trial, as “[either] party [may] elect different trial tactics at a second trial, [and] the trial
court being more fully informed must be given the opportunity to reconsider the prior
ruling.” (People v. Clark (1990) 50 Cal.3d 583, 624, fn. omitted.)

                                               7
of the charged crime.” (Hernandez, supra, at p. 1049.) “Evidence that a witness is afraid
to testify or fears retaliation for testifying is relevant to the credibility of that witness and
is therefore admissible. [Citations.] An explanation of the basis for the witness’s fear is
likewise relevant to [his] credibility and is well within the discretion of the trial court.
[Citations.]” (People v. Burgener (2003) 29 Cal.4th 833, 869.) “[T]he decision on
whether evidence, including gang evidence, is relevant, not unduly prejudicial and thus
admissible, rests within the discretion of the trial court.” (People v. Albarran (2007) 149
Cal.App.4th 214, 224-25 (Albarran).)
       We find no abuse of discretion in the trial court’s decision to admit the gang
evidence. Mendez, the only percipient witness to the murder to come forward, had
recanted at the first trial soon after a brick was thrown through his window. Evidence
that other gang members retaliate against a “snitch” by seriously assaulting or killing him
or his family, tended to show Mendez’s motivation for recanting. This strong incentive
not to testify to witnessing the murder mitigated in favor of finding Mendez’s testimony
at the second trial credible. It also explained why, in a situation where many people were
potential witnesses, no others came forward.
       Additionally, the gang evidence provided a motive for the shooting. Defendant’s
argument that there were personal reasons that could have motivated the shooting is
unpersuasive. Racial epithets alone are not generally enough to motivate a murder. The
trial court could reasonably conclude that it is more believable that a gang member would
shoot another person to maintain his reputation within the gang. The prosecution was
entitled to present this evidence to help explain why the crime was committed. Under
these circumstances, the gang evidence was relevant to motive and to the credibility of a
key witness. It had substantial probative value, thus outweighing any prejudice.
       The facts of this case are entirely different from Cardenas, supra, 31 Cal.3d 897,
and People v. Avitia (2005) 127 Cal.App.4th 185 (Avitia), cited by defendant. In those
cases, the gang membership had no tendency to prove disputed facts.
       In Avitia, the gang evidence was graffiti found in the defendant’s bedroom. No
gang enhancement was alleged and there was no evidence the offenses charged

                                                8
(discharging a firearm and possession of assault weapon) were related to gang activity.
The graffiti evidence was proffered to show that the gun used in the crime belonged to
the defendant. But the graffiti was cumulative evidence since the defendant offered to
stipulate to the ownership of the weapon. (Avitia, supra, 127 Cal.App.4th at p. 193.)
       In Cardenas, the admission of gang evidence was offered to show that the defense
witnesses were biased. But evidence had already been admitted that the defendant and
the witnesses were neighborhood friends, and thus the fact that they were all members of
the same gang was cumulative and more prejudicial than probative. (Cardenas, supra, 31
Cal.3d at pp. 904-905.)
       Here, the evidence was relevant to motive, intent, and the credibility of the
witnesses. Defendant’s assertion that there was sufficient evidence that the motivation
was personal is of no moment. The prosecution is not restricted to a single motive to
support its theory of the case, and should not be prevented from presenting a theory
strongly supported by the facts. The trial court weighed the probative value of the gang
evidence against the potential for prejudice, and we cannot say that it abused its
discretion in deciding to admit the evidence.
       Defendant’s claim that admission of gang evidence violated his federal due
process rights, citing Albarran, supra, 149 Cal.App.4th at pp. 228-229, is without merit.
Albarran involved an extreme situation in which the jury was presented with “[e]vidence
of threats to kill police officers, descriptions of the criminal activities of other gang
members, and reference to the Mexican Mafia [that] had little or no bearing on any other
material issue relating to [the defendant’s] guilt on the charged crimes and approached
being classified as overkill.” (Albarran, supra, at p. 228, fn. omitted.) In finding
reversible error, the Albarran court held the trial was rendered fundamentally unfair and
it was not convinced beyond a reasonable doubt that the admission of gang evidence did
not contribute the jury’s verdict when taking into consideration the “nature and amount of
this gang evidence at issue, the number of witnesses who testified to [the defendant’s]
gang affiliations and the role the gang evidence played in the prosecutor’s
argument . . . .” (Id. at p. 232.)

                                                9
       Nothing remotely similar to Albarran occurred in this case. Evidence of
extraneous gang activities was not introduced. The trial court precluded evidence of
predicate gang offenses which would have been required had a gang enhancement been
alleged under section 186.22. No reference was made to a notorious prison gang. The
gang evidence was tailored to the relevant issues of intent, motive, and credibility. No
due process violation occurred.
       With respect to defendant’s claim under state law, any error was harmless in light
of the strength of the prosecution evidence. Defendant’s presence at the party was
established by multiple witnesses, and by DNA evidence obtained from a cigarette butt,
which one witness testified he gave to defendant. Mendez testified that he saw defendant
shoot the victim. Charles told detectives that that “Shadow smoked Baby.” Gabriela
witnessed defendant attempting to drive over the victim’s body to leave the party.
Defendant told her not to call the police after the murder, showing no concern for the
person behind his car, and trying to discourage intervention by law enforcement.
Defendant’s flight from the scene is indicative of guilt. Given this evidence, it is not
reasonably probable that a result more favorable to defendant would have been reached in
the absence of Detective Brennan’s expert witness testimony.


Jail Call


       During trial, the prosecution sought to admit a recorded telephone call between
defendant and his mother, which defendant made while in custody in February 2012. In
the call, defendant told his mother that he needed to know the date that a family
member’s wife had died. Defendant was adamant that he needed to know the exact date,
and stated, “See, I don’t want you listening to half of what I’m saying. . . I want the
number, the date. I want to write it down. [¶] . . . Because look, look, look, listen to me.
‘Cause I’m gonna give you a few more, look. ‘Cause all you guys are gonna have to
come together a little closer. . . you, Roger. . . see Vera knows a lot of this how a lot of
this was stated from the beginning because the conversations I guess they had with the

                                              10
last lawyer and how they wrote that down. [¶] [¶] . . . I went up there when she was ill
and stayed until after we buried her and came back because I hadn’t seen my brother in
years you know so I stayed with him and spent more time. I didn’t come back until early
September. But, know, ‘cause we trying to get the conversations or in the timing exact.
Everybody saying the same thing. You understand me? [¶] And that needs to be record,
so we need that to be pretty much the simulations that to everybody who saying what.
Because there’s gonna be a time when the investigator needs to speak to everybody. And
you gonna have to accord, be in accordance. Everybody on the same note. [¶] [¶] [¶] . . .
You guys are going to have to communicate more about this and get it together so when
the questions are asked like that or when you’re talking to him . . . everybody can have
the same thing to say pretty much you know what I mean?”


       Timeliness of discovery


       The purpose of the criminal discovery statutes is “[t]o promote the ascertainment
of truth.” (§ 1054.) The statute requires the prosecution to provide all relevant evidence
to the defense. (§ 1054.1.) The discovery statutes contemplate that discovery “shall be
made at least 30 days prior to the trial,” however “[i]f the material and information
becomes known to, or comes into the possession of, a party within 30 days of trial,
disclosure shall be made immediately, unless good cause is shown why a disclosure
should be denied, restricted, or deferred.” (§ 1054.7.) Various remedies for late
disclosure of evidence are left to the discretion of the trial court (§ 1054.5, subd. (b)),
however, “[t]he court may prohibit the testimony of a witness pursuant to subdivision (b)
only if all other sanctions have been exhausted.” (Id. at subd. (c).)
       There was no violation of the timeliness requirements of the discovery statutes,
because the records relating to the jail calls were obtained within 30 days of trial and
were turned over in a timely fashion. Detective Levin stated that he requested the records
from the sheriff’s department in early March 2013. He had just been made aware that the
sheriff’s department had the capability to search inmate calls by a personal identification

                                              11
number (PIN) to obtain target phone numbers that would allow them to retrieve specific
calls. He believed the sheriff’s department turned the calls over to him during the week
of March 8, 2013. Detective Levin went through the calls and prepared a report
immediately. He turned everything over to the district attorney right after the report was
completed. The trial court confirmed that the defense received the calls on March 13,
2013.
        Both sides announced that they were ready for trial on March 13, 2013, the day
discovery of the contents of the calls was provided. A continuance was not requested by
the defense. Two weeks later, on March 27, 2013, defense counsel objected on grounds
of late discovery and relevance. Defense counsel stated that at the time he received the
compact disc with the recorded calls, he was under the impression that there were about
10 hours of audio recordings. In fact, there were approximately 316 calls relating to
defendant and 27 calls relating to Charles, which he estimated represented about 150
hours of audio. Defense counsel admitted that he announced that he was ready for trial
after he received the discovery, but explained that he was under the impression that the
amount of audio was manageable. Counsel did not know when Detective Levin became
aware of the calls or obtained the recordings, but he had just been given calls that were as
recent as March 21, 2013, so he believed that access must not be difficult. The calls were
hearsay that defendant could impeach with hearsay. The defense would need the
opportunity to review all of them. Defense counsel also argued the call would be
confusing to the jury under Evidence Code section 352. The jurors would not understand
why defendant had not presented an alibi after introduction of the jail call. It was not
clear from the call whether defendant was suborning perjury, or just making sure
everyone had their stories straight, which could be misleading.
        The prosecutor explained that in the previous trial, the defense presented him with
two relatives who would testify as alibi witnesses. As trial progressed, it became clear
that the witnesses would not be called. The prosecution told the trial court that it had
intended to impeach the witnesses to show that defendant was fabricating evidence. The
trial court asked if the prosecution had impeachment evidence. At that point the

                                             12
prosecution did not have impeaching testimony, and when the prosecution called the
witnesses to the testify, they denied that defendant attempted to present false alibis. The
prosecution then contacted Detective Levin to see if he could begin listening to jail calls,
but at that time the sheriff’s department could not retrieve calls without target phone
numbers. Within the last few months, however, technology had improved, and calls
could be retrieved using inmates’ PINs. Detective Levin retrieved all calls with
defendant’s PIN and obtained target phone numbers, which he could associate with
specific calls. Detective Levin culled through the calls and made a report. A copy of the
calls and the report were immediately given to the defense. The calls were
straightforward in their content, and probative. It was clear that defendant was
attempting to construct an alibi, which showed consciousness of guilt.
       The trial court ruled that the call could be admitted, but only if Detective Brennan
testified that defendant originally stated that he was out of town for a funeral the night of
the party. Without that explanatory testimony, the call would not be relevant. The court
found there was no late discovery. Technology had improved, the detective took
advantage of the technological advance, the calls were reviewed immediately, and
everything was turned over to the defense promptly. Detective Brennan testified that
defendant told him he was at a relative’s funeral at the time of the murder, and the
recorded call was presented to the jury.
       The trial court’s ruling on the timeliness of discovery is supported by substantial
evidence. Upon receiving new information regarding the calls, Detective Levin compiled
the information and drafted his report, which was immediately provided to the defense.
Discovery was provided as contemplated by section 1054.7, subdivision (b), when new
evidence is developed within 30 days of trial. Moreover, the defense did not seek a
continuance, and the drastic remedy of exclusion of a witness’s testimony would not have
been warranted until all other remedies were exhausted. (§ 1054.5, subd. (c).)




                                             13
       Exclusion under Evidence Code section 352


       The recorded call had probative value, because it tended to show a consciousness
of guilt by fabrication of evidence. “Deception, falsehood, and fabrications as to the facts
of the case are treated as tending to show consciousness of guilt, and are admissible on
the same theory as flight and concealment of the person when charged with crime.”
(People v. Cole (1903) 141 Cal. 88, 89-90.) Defendant argues that falsity must be
demonstrated by the defendant’s own testimony, and that because defendant did not
testify here, it was an abuse of discretion to admit the jail call. Defendant’s reliance on
People v. Thomas (1979) 96 Cal.App.3d 507, and People v. La Salle (1980) 103
Cal.App.3d 139 is misplaced, as both were expressly overruled in People v. Kimble
(1988) 44 Cal.3d 480, 496 (Kimble). The Kimble court reasoned that “although the fact
that a defendant has—on the witness stand—contradicted a prior statement that he made
relating to the crime provides one basis for the jury to determine that the earlier statement
was false, it simply does not follow that the jury would necessarily be engaging in ‘rank
speculation’ if it relied on other evidence to determine that the prior statement was false.
In many cases, such other evidence—which may consist of physical evidence like
fingerprints, or the testimony of trustworthy witnesses—will be equally, if not more,
reliable than defendant’s own in-court testimony.” (Id. at p. 498.) Moreover, “‘[f]alse
statements deliberately made by defendants to arresting officers concerning matters
within [defendants’] own knowledge, and relating to the issue of guilt or innocence,
“cogently evidence consciousness of guilt and suggest that there is no honest explanation
for incriminating circumstances.”’ (Witkin, Cal. Evidence (2d ed. 1966) § 512, at p. 482,
and cases cited.)” (Id. at p. 496, fn. omitted.)
       Defendant told Detective Levin that he was out of town at a relative’s funeral on
the night of the shooting. Eyewitnesses saw him at the party, and at least one witness
saw him shoot Granado. Evidence was presented that defendant smoked a cigarette at the
party, and one of the cigarette butts collected matched defendant’s DNA. The jail call
indicating that defendant was attempting to arrange for his family to provide a single

                                              14
account of his whereabouts on the night of the party tends to evidence a consciousness of
guilt. The trial court did not abuse its discretion in determining the evidence was relevant
under Evidence Code 352.


Cumulative Error


       Finally, defendant contends that cumulative errors at trial deprived him of due
process. As we have concluded that the trial court did not err, the contention necessarily
fails. (See People v. Hines (1997) 15 Cal.4th 997, 1062.)


                                     DISPOSITION


       The judgment is affirmed.




              KRIEGLER, J.


We concur:




              MOSK, Acting P. J.




              GOODMAN, J. *




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

                                            15
