Filed 2/8/16 P. v. Martinez CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H040794
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1120909)

         v.

ROBERTO JAIME MARTINEZ,

         Defendant and Appellant.


                                           I.        INTRODUCTION
         A jury convicted defendant Roberto Jaime Martinez of first degree murder
(Pen. Code, § 187, subd. (a))1 and possession of a concealed dirk or dagger (former
§ 12020, subd. (a)(4)). As to the murder, the jury found true allegations that the crime
was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)) and
that defendant personally used a deadly weapon (§ 12022, subd. (b)(1)). The trial court
sentenced defendant to a prison term of 26 years to life.
         On appeal, defendant contends: (1) his trial counsel was ineffective for failing to
argue for suppression of defendant’s confession on the ground that defendant invoked his
right to remain silent during the interrogation and on the ground that the interrogation
tactics rendered the confession involuntary; (2) the jury instructions on murder failed to

         1
             All further statutory references are to the Penal Code unless otherwise indicated.
define second degree murder; (3) the jury instructions on murder did not require the
prosecution to prove the absence of heat of passion, provocation, and imperfect self-
defense; (4) the prosecution’s gang expert improperly relied on testimonial hearsay;
(5) there was insufficient evidence to support the jury’s finding regarding the “primary
activities” element of the gang enhancement (§ 186.22, subd. (f)); (6) the trial court erred
by admitting a voicemail message the victim left for his girlfriend on the night of the
murder; (7) the trial court erred by allowing a witness to testify about hearsay statements
by unidentified declarants; and (8) the cumulative impact of the errors violated
defendant’s federal due process rights. For reasons that we will explain, we will affirm
the judgment.
       Defendant’s appellate counsel has filed a petition for writ of habeas corpus, which
this court ordered considered with the appeal. We have disposed of the habeas petition
by separate order filed this day. (See Cal. Rules of Court, rule 8.387(b)(2)(B).)

                                   II.     BACKGROUND
       A.       The Diaz Stabbing
       On October 23, 2011, at 1:02 a.m., Luis Diaz left a voicemail message for his
girlfriend, stating, “Yea I texted you. . . . . . you text me but I guess it’s cool. . . you don’t
know what I’m going through. . . you think you do. . . I’m about to get jumped tonight
and I don’t want you to. . .inaudible. . .have you know what I’m thinking you don’t even
care about me. . . .care about what you’re doing right now. . .I’ll see you whenever I do or
whenever you want to see me alright bye. . . . . .”
       At approximately 1:39 a.m. that same day, residents of West Virginia Street in
San Jose called 9-1-1 after noticing someone who needed help out on the street.
       San Jose Police Officer Peter Szemeredi had been dispatched to a report of a
possible gang fight involving 10 people in the area of Union Street and Almaden at about
1:30 a.m. While on his way to that area, he was notified that someone needed help on



                                                2
West Virginia Street between Almaden and Vine, so he responded to that location
instead. Officer Szemeredi found Diaz lying face down and bleeding, and he determined
that Diaz had been stabbed in the abdomen.
       Diaz was taken to Valley Medical Center, where he passed away at 2:29 a.m. An
autopsy indicated that the stab wound to Diaz’s abdomen was over six inches deep.
When the stab wound was inflicted, “the entire knife blade had entered the body.” The
knife had gone through Diaz’s liver, gallbladder, kidney, pancreas, and small bowel, and
it had pierced both a major vein and the aorta. In addition to the stab wound, Diaz had
21 blunt force trauma injuries. Those injuries were to his temple, neck, knee, torso, hip,
arms, hands, and wrist. The blunt force trauma injuries included both abrasions and
bruises. The injuries would not have occurred from Diaz falling down.
       Diaz’s blood alcohol level was 0.19 percent at the time of his death. Diaz had
tattoos that are common to Northerner gang members and a Mongolian hairstyle, which is
common to Northerner gang members.
       Lilia Mendoza Naranjo was living at a residence on Union Street on October 23,
2011. The residence had “[a] lot of people coming in and out,” some of who were
Sureño gang members. At some point after midnight, a person Mendoza Naranjo knew
as “Droopy” entered the residence. He appeared nervous. Shortly afterwards, defendant,
who Mendoza Naranjo knew as “Espantos,” entered, holding a knife. The knife had
blood on it. Defendant said something like, “I fucked up.” He went to the kitchen sink
and looked for something to clean the knife with.
       Mendoza Naranjo heard Droopy comment, “Shit went down.” Other people also
came into the residence at about the time Droopy and defendant entered. These people
appeared agitated. Mendoza Naranjo heard these people say that “something had
happened.” According to Mendoza Naranjo, these people said “that they had beat up
somebody.”



                                             3
       Later that morning, the police detained everyone who was in the Union Street
residence, including defendant. Defendant had a shaved head and tattoos on his head:
one read “West Side.” Defendant told the police that “he had not seen or heard anything
in relation to the incident.”
       On November 9, 2011, an anonymous person told police that Mendoza Naranjo
might have information about the Diaz stabbing. Mendoza Naranjo was contacted and
identified defendant.
       B.     Investigation and Defendant’s Police Interview
       Defendant was arrested on November 29, 2011, in connection with a separate
assault on a Northerner gang member by multiple Sureño gang members. Defendant had
a knife in his possession at the time of his arrest.
       During his subsequent interview by the police, defendant denied participating in
the group assault, but he eventually admitted stabbing Diaz. Defendant indicated that the
stabbing was “for killing my brother[in-law],” explaining that a person who had killed his
brother-in-law had been in the “same gang” as Diaz. Defendant also claimed that Diaz
had run towards defendant “like he wanted to attack,” and he claimed that he was alone
at the time of the stabbing. Defendant declined to write an apology letter to Diaz’s
family, stating, “Yea, I feel bad, but the game is the game.”
       C.     Gang Expert Testimony
       San Jose Police Detective Juan Hernandez had worked in the Gang Investigation
Unit for approximately three years at the time of trial. Detective Hernandez had
investigated several hundred gang incidents during his career and had personally
contacted gang members in both formal and informal circumstances. He had taken a
number of gang training courses, and he interacted with other law enforcement agencies
and officers on a daily basis. He had been the lead investigator in over 50 cases
involving gang-related crimes.



                                               4
              1.     Testimony about Sureño Gangs
       Gangs display their strength through force and violence, i.e., by committing
violent crimes. A crime committed by gang members in a rival gang’s territory shows
disrespect for the rival gang. A gang will exhibit control over territory through “brutal
attacks, violent robberies, assaults up to and including homicide.” It would be a sign of
weakness for a rival gang member to come into another gang’s territory “without
anything bad happening to them.”
       Sureño gang members follow a common set of guidelines. They identify with the
color blue and the number 13, which may be represented by Roman numerals. They are
rivals of Norteños. Common gang challenges include “Do you bang?” and “Where you
from?”
       SSP is an acronym for Sur Santos Pride, a Sureño gang consisting of at least
50 members. The primary activities of the SSP include the commission of crimes such
as assault with a deadly weapon, carjacking, and murder. The areas in which SSP gang
members are most frequently contacted are on Virginia Street, including an alley that
goes between Vine Street and Almaden.
              2.     Predicate Offenses/Pattern of Criminal Gang Activity
       Detective Hernandez testified about three prior offenses committed by SSP gang
members. Certified records from the convictions were introduced into evidence.
       Domingo Santos Rojas was convicted of committing an assault with a deadly
weapon, with a gang enhancement, based on an incident that had occurred in January of
2010. The underlying incident had begun when the victims, several of whom were
wearing red, pulled into a parking lot. Someone in a vehicle with Rojas “threw up a gang
sign of 13,” and Rojas fired a gun. Detective Hernandez believed that Rojas was a
Sureño gang member at the time, based on the facts of the case.
       Marcos Ernest Lomelli was convicted of robbery, with a gang enhancement, based
on an incident that had occurred in December of 2010. Detective Hernandez knew

                                             5
Lomelli from “prior contacts during gang investigations” and from assisting in the
investigation of the robbery case. The underlying incident occurred at a pizza restaurant,
which was a known SSP gang “hangout” and the site of prior crimes, including shootings
and gang fights. Lomelli had told an employee of the restaurant that it was his “varrio,”
and he threatened to kill the employee if the employee said anything. Lomelli also
ordered a younger gang member to take items from the back of the restaurant “for the
hood.” Detective Hernandez believed that Lomelli was a Sureño gang member at the
time—specifically, a member of SSP—based on Lomelli’s prior contacts, tattoos
(which included three dots), and his prior association with other gang members.
       Diego Rafael was convicted of assault, with a gang enhancement, based on an
incident that had occurred in March of 2011. Detective Hernandez had become familiar
with Rafael during his research into Sureño gang members. The underlying incident had
occurred when Rafael approached someone he believed to be a rival Norteño gang
member, “asked him if he banged,” and then attempted to stab the victim. Rafael had
admitted that he thought the victim was “a Northerner gang member in his territory.”
Detective Hernandez believed that Rafael was a member of SSP at the time, based on
the facts of the case, Rafael’s “self-admission to law enforcement,” and Rafael’s prior
contacts, which involved frequenting gang areas and associating with other gang
members.
              3.     Defendant’s Prior Gang Contacts
       Defendant’s gang membership was shown through evidence of his prior law
enforcement contacts. During a field interview on November 12, 2003, defendant
admitted that he “kicks it” with Sureños. Defendant was wearing gang clothing and was
in a known Sureño hangout. On December 8, 2005, defendant was wearing gang
clothing and admitted being a Sureño. In March of 2009, defendant was contacted with
two other gang members in a gang area. On May 3, 2009, defendant was arrested for
carrying an illegal dirk or dagger, providing false identifying information, and a

                                             6
probation violation. Defendant stated that he was carrying the knife for protection from
Norteños, that he had been shot by Norteños, and that he was a Sureño but had not been
jumped in. The following day, during a jail classification interview, defendant again
admitted that he was a Sureño. During another jail classification interview on May 8,
2010, defendant admitted to being a Sureño “from SSP.” During a contact on July 7,
2011, in an SSP gang area, defendant was associating with another gang member.
During another contact on July 19, 2011, defendant admitted that he was a Sureño.
Asked which clique, defendant responded, “Just Sureno. I kick it with SSP.” On
November 4, 2011, during an investigation following the report of an assault with a
deadly weapon, defendant admitted he was a Sureño and that he was with SSP.
Defendant said he had gotten “jumped in” a few months earlier. During a jail
classification interview the same day, defendant again stated that he was a member
of SSP.
              4.     Gang Expert Opinions
       Detective Hernandez opined that the present offense was “in and of itself, a
predicate offense” for purposes of the gang statute. He believed that defendant was an
active gang member—specifically, a member of SSP—at the time of the offense. His
opinion was based on the facts of the instant case and defendant’s prior contacts.
Defendant had a gang tattoo—“West Side,” which refers to SSP territory—on his head,
and his head was shaved on the night of the incident, so that the tattoo was displayed.
       Detective Hernandez was given a hypothetical situation involving “LD,” a
“red gang member” walking down Union Street in a “blue gang neighborhood.” “RM,”
a person similar to defendant, saw LD and made sure he was alone. RM then charged at
LD, who realized he was “going to get jumped” and tried to run but was stabbed by RM.
A witness called 9-1-1 and said that about 10 gang members were involved in the attack.
       Regarding the hypothetical situation, Detective Hernandez explained that when
“a rival gang member is walking through another gang’s territory, it is a major sign of

                                             7
disrespect.” If the person was “allowed to freely walk” through that territory, the gang
controlling the territory would be seen as weak and would not be feared. Another gang
would likely try to take over the territory. Attacking the gang member would be a way of
asserting the gang’s “domination and control over the neighborhood.” The attack would
also show witnesses that the gang “is strong and powerful, not to be messed with.”
       Detective Hernandez opined that if there were other “blue gang members” present
when LD walked by, they would have joined in the attack. Gangs “do not fight fair,” and
if there is one rival gang member, there will be at least two or three attackers. Gangs
need to show their force and show that they are in control. However, one gang member
might take responsibility for the attack because snitching on other gang members is
“viewed negatively” and subject to discipline.
       Ultimately, Detective Hernandez opined that the actions of RM in the hypothetical
were committed for the benefit of and in association with a criminal street gang.
       D.     Defense Case
              1.     Defense Expert Witness
       Dr. Robert Perez, a clinical psychologist, evaluated defendant. He believed that
defendant had suffered from post traumatic stress disorder (PTSD) for a “considerable
period of time” prior to the Diaz stabbing. PTSD is an anxiety disorder that can arise
when someone has observed “a traumatic stress.” The incident that had caused
defendant’s PTSD happened in 2007. Defendant had been shot five or six times in the
abdomen, and his brother-in-law had been killed by a gunshot to the face. The assailants
had been gang members. At the time of the incident, defendant’s 18-month-old daughter
was present; she had been handed to the brother-in-law’s wife just before the shooting.
Defendant was very anxious following the incident, and when he was discharged from
the hospital, it was recommended that he receive follow-up psychiatric care. However,
he did not return for any treatment. Defendant had “intrusive recollections” of the
incident (i.e., “flashback[s]”). He also had auditory hallucinations (i.e., “voices in his

                                              8
head”) after the shooting. The voices often told defendant that he was mentally ill, which
increased his anger and fear.
       Another symptom of PTSD is hypervigilance: “[c]onstantly being on the lookout
for a threat.” Defendant demonstrated his hypervigilance by carrying a knife and by
becoming fearful, with an increased heartbeat and shortness of breath, when he saw a
Norteño.
       In Dr. Perez’s opinion, defendant also suffered from obsessive compulsive
disorder, which is another anxiety disorder. Defendant washed his hands 20 or more
times per day.
       Dr. Perez performed IQ testing on defendant and determined defendant to have a
verbal IQ of 76, which is in the fifth percentile. This indicated that defendant was
“borderline intellectually impaired.” Someone with such a limited verbal intellectual
ability might have trouble processing information or performing abstract reasoning.
       Defendant drank alcohol and used marijuana regularly. He also used
methamphetamine, including a few days prior to the Diaz stabbing. Use of these
substances will accelerate PTSD symptoms.
              2.     Other Defense Witnesses
       Defendant’s ex-girlfriend, Maria Virelas, testified about the shooting incident in
which defendant and his brother-in-law were shot. The incident had occurred on
December 5, 2007. At the time, Virelas was living with defendant and her brother,
Huber, who was 17 and a half years old. Virelas and defendant had a one-year-old
daughter together.
       Defendant and Huber were outside their apartment with defendant’s daughter.
A man wearing red pulled out a gun and shot defendant and Huber after saying,
“What’s up? Do you bang?” After the incident, defendant appeared to be looking over
his shoulder all the time. Defendant began carrying a knife in his pocket. He began



                                             9
using alcohol every day and using methamphetamine more frequently. Defendant was
also angrier.
         Defendant’s mother testified that after the December 5, 2007 shooting, while still
in the hospital, defendant expressed fear that someone would kill him. After he came
home, defendant did not want to go out; he wanted to stay home. Defendant’s mother
found a knife under his pillow at some point after the December 5, 2007 shooting.
Defendant told her that “it was for protection.” Defendant began to wash his hands
frequently. A few months before his arrest, defendant began to bring home friends that
looked like “gangsters.”
         Defendant’s sister also noticed defendant began to wash his hands frequently after
the December 5, 2007 incident. Defendant was also afraid to go outside, especially at
night.
         Defendant did not testify. During argument to the jury, defendant’s trial counsel
asserted that defendant had acted in “lawful self-defense” because he reasonably believed
that Diaz, a Norteño, was threatening to kill him or inflict great bodily injury.
Alternatively, defendant’s trial counsel asserted that defendant had acted with an
unreasonable but honest belief in the need to defend himself, such that defendant was
guilty, at most, of manslaughter.
         E.     Convictions and Sentence
         At a jury trial, defendant was convicted of first degree murder (§ 187, subd. (a))
and possession of a concealed dirk or dagger (former § 12020, subd. (a)(4)). As to the
murder, the jury found true allegations that the crime was committed for the benefit of a
criminal street gang (§ 186.22, subd. (b)(1)(C)) and that defendant personally used a
deadly weapon (§ 12022, subd. (b)(1)). The trial court sentenced defendant to a prison
term of 26 years to life.




                                              10
                                  III.   DISCUSSION
       A.     Ineffective Assistance of Counsel/Defendant’s Confession
       Defendant contends his trial counsel was ineffective for failing to argue for
suppression of defendant’s confession on the ground that defendant invoked his right to
remain silent during the interrogation and on the ground that the interrogation tactics
rendered the confession involuntary.
              1.     Details of the Interrogation
       After being taken into custody, defendant was interviewed by Detective Elizabeth
Checke, Detective Hernandez, and Detective Jaime Jimenez, who spoke Spanish.2
       The initial part of defendant’s interview pertained to his involvement in the group
attack for which he had been arrested. At the beginning of the interview, defendant was
offered water and the opportunity to use the bathroom. Defendant was told that the
police had some questions for him, and that “it would be better to be honest and sincere
in talking about these things.” Detective Jimenez explained that he was “Pocho,”
meaning “a Mexican person who has been born here and speaks broken Spanish,” and
that if defendant could not understand him, defendant should let him know.
       Detective Jimenez then provided the Miranda advisements in Spanish. (See
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).) Translated into English, the
advisements provided as follows: “You have the right to remain silent, do you
understand this? Anything you say can be used against you in a court of Law, you
understand? You have the right to have a lawyer present before and during an
interrogation if you want, ok? If you can not afford it, one will be appointed free of
charge to represent you before an interrogation if you want, you understand this?” After
the advisements, defendant responded, “Yes,” and agreed to talk.

       2
         We have reviewed the transcripts of the interview, which include an English
translation.


                                            11
       Defendant acknowledged that one of his nicknames was Espantos. He also
admitted that he was in a Sureño gang. Defendant informed the police about the
December 5, 2007 incident in which Norteños had shot him and killed his brother-in-law.
Defendant admitted that he hated Norteños because of that incident. Asked what he
would do if he saw a Norteño in his “hood,” defendant responded, “Then I’m jumping
that, that guy.” Defendant agreed that if he did something “in the Hood against the
Norteños,” he would be “doing it for SSP.”
       Defendant denied involvement in the group attack. Detective Jimenez told
defendant that people had identified defendant as being involved. Detective Jimenez said
that it is often “better for the suspects when they tell the truth” and that when the case
went to court, it was “going to be done the way [it] is done.” Detective Jimenez told
defendant that “what it is and what is presented, ok, can fuck you up.” Detective Jimenez
told defendant there were two options: not say anything or give his story. He explained
that if defendant did not give his story, the evidence would come from other sources.
       Detective Jimenez noted, “I’m Mexican. And you are Mexican.” Detective
Jimenez said he had “this position to help Mexican people that are victims and also those
that are suspects.” Detective Jimenez explained that a suspect often wants his help in
making “a decision that is going to be best for [the suspect’s] life.” Detective Jimenez
noted that defendant had a daughter and a girlfriend. He told defendant, “And if you do
things that you shouldn’t do and you lie, it’s a time out, it’s like a penalty, like when you
play soccer. . . . If you get a penalty they are going to give you, they are going to take
you out of the game, no?” Detective Jimenez continued, “But in this arena, that’s
criminal, ok? Depending on what you do it can be a penalty that would be longer, or if
you say the truth, it can [be] shorter.” Detective Jimenez warned that defendant was
“going to suffer the consequences” if defendant did not believe him. Detective Jimenez
went on, “Because me with my heart, I don’t like to fuck up any Mexicans and me



                                              12
knowing you are Mexican, . . . when I leave this interview I sleep well at night knowing
that, hey, I gave the victims and suspects the opportunity to say the truth.”
          Defendant continued to deny involvement with the group attack. He suggested
that if someone was accusing him, the police should “just take [him] to court” and have
the witness testify. Defendant denied even being present during the group attack.
Detective Jimenez told defendant that now was his chance to tell the truth, and that if he
waited to tell the truth until later, when he was in court, “they are going to fuck you up.”
          After a break, during which defendant was given the opportunity to have a soda or
water, the interview continued. Detective Jimenez told defendant that they would be
finished after “one more thing.” Detective Jimenez introduced defendant to Detective
Checke and explained that she was in charge of “another case,” which they would be
talking about. Detective Jimenez asked if defendant knew what DNA was and explained
it was “a test that will prove if you were there or not.”3 Defendant agreed to submit to a
DNA swab.
          After the DNA swab, Detective Jimenez informed defendant that Detective
Checke was investigating a homicide that happened on Union Street. Defendant said he
had “something to tell” the officers, and he referenced the night the police came to his
house. Defendant asserted that he had arrived at the house at around 7:00 p.m., bought
some beer, and invited some friends over. At some point, he went out to buy more beer,
and he also went out to buy some snacks. By the time the police arrived, he had fallen
asleep.
          Detective Jimenez told defendant that there was a video taken from the market
down the street. He offered defendant “a chance to say what happened.” Defendant


          3
        Lab tests revealed the possible presence of blood around the kitchen sink at the
Union Street house, where defendant had been seen with the bloody knife, but no DNA
evidence was obtained.



                                              13
responded, “I don’t know what happened.” Detective Jimenez said that the video showed
defendant running with other people after a fight “with a dude.”4 Defendant continued to
deny that he had done anything other than buy beer at the market.
       Detective Jimenez reiterated that the video showed defendant running. Detective
Jimenez told defendant that witnesses had also seen defendant arriving at his house with a
knife. Defendant said he always carried a knife for protection. Detective Jimenez told
defendant that the police had evidence that defendant did not know about and that it was
“possible” defendant’s DNA would “come out from this evidence.”
       Defendant asked what his charges were. Detective Jimenez told him that there
was a charge of assault with a deadly weapon stemming from the “homicide case.”
Defendant asked if he could be taken “upstairs.” Detective Jimenez responded, “In a
little bit.” Defendant then said, “Because I don’t know what you are talking about, I
don’t know, I don’t want [to] waste your times nor anything. I just want to go rest and
wait there. I want to wait for my court and that’s it. And then in court they can say what
they need to say about my charges or whatever. . . .” Defendant continued, “So, . . . I
don’t know about what. . . what you guys talking about.” Detective Jimenez responded,
“It is clear what we[’]re talking about.” Defendant replied, “Yes, I know, but I had
nothing to do with that,” and he denied being a “criminal.”
       Defendant told Detective Jimenez, “So, I. . . the only thing that I want to do is to
go, and rest in my cell. . . and that’s it. If you can we can talk again, and continue with
all of this. If you have questions for me or something then. . . I can answer you whatever
you want to. Then what you’re asking me, but well it is the same thing that I’m telling
you right now.” Detective Jimenez responded, “Okay.” Defendant continued, “I don’t



       4
        A surveillance video from a local market was retrieved and showed a group of
people, but no individuals were identified from the video.


                                             14
know. . . I don’t know why you guys have me here, and what you guys are saying all of
this. . . .”
         Detective Jimenez and Detective Checke asked defendant to tell them what
happened “in front of the house.” Defendant insisted that on the night of the Diaz
stabbing, he had just hung out with friends. Detective Checke told defendant that his
story did not “match up,” but defendant reiterated, “I didn’t do anything—” Defendant
told the officers, “Look you guys are accusing me of something that. . . that I didn’t
do . . . .” Defendant mentioned going “up to my cell” and asked if the officers could
bring his daughter to visit or allow him to talk to her. The officers said they would let
defendant call his daughter “[a]fter we’re done.”
         Defendant responded, “So, I don’t know. . . but I don’t want to continue with all
this. . . I want to go rest. . . .” Detective Jimenez replied, “Okay—” as defendant stated,
“I’m tired—.” Detective Jimenez said, “But [inaudible] one more thing. Okay?”
Defendant said, “Yes.”
         Detective Jimenez told defendant, “We know that you were there . . . .” He further
explained that although the police initially did not know if defendant was the person who
had stabbed Diaz, they now had a witness who had seen defendant with a bloody knife.
Defendant responded that he was “always cutting myself” with folding knives, explaining
that he would stick his hands in his pockets, where he carried the knives. He insisted, “I
didn’t do nothing.” Detective Jimenez asserted, “The evidence doesn’t lie.” Defendant
then asked to use the telephone so he could talk to his girlfriend. Detective Jimenez
responded that they would let defendant use the phone. However, defendant continued
talking, asking if the officers wanted him to lie to them. Detective Jimenez told
defendant, “I want you to tell us the truth.” Defendant continued to state that he “didn’t
do anything.”
         Detective Jimenez told defendant that as time passed, people would not believe
defendant when he told the truth. He added, “And they’re gonna fuck you up.”

                                              15
Detective Jimenez urged defendant to think of his girlfriend and family. He told
defendant, “If you weren’t the one who stabbed [Diaz], tell me, but you were there, don’t
lie[.]” Defendant continued to deny any involvement in the stabbing, and he again asked
to use the telephone to call his girlfriend. The officers agreed to take a break from the
interview.
       After the break, with Detective Jimenez translating as needed, Detective Checke
took over the interview. She told defendant the officers had only “a couple of more
questions” for him and that afterwards, they would let him make a phone call. Defendant
replied, “Ok, thank you.” Detective Checke then told defendant that she wanted to hear
defendant’s side of the story, and that she wanted him to be truthful, because otherwise it
might look like other people were telling the truth. She reminded defendant that “people
make mistakes.” She told defendant that he was “probably not going to get out” and that
he should think about “who that affects.” Defendant responded that he could not “[d]o
nothing,” and that he could not “say nothing.” Detective Checke asked, “You can’t say
anything?” Defendant then admitted, “But, I killed that person.” Asked if it was an
accident, defendant replied, “Yeah, I think so. I’m sorry.” Defendant claimed he did it
“for myself” but said he did not know why. He then suggested, “I think for killing my
brother,” explaining that the person who had killed his brother-in-law had been in the
“same gang.”
       Defendant told the officers that Diaz had “just passed by” the Union Street house
and that defendant was alone when he went out and followed Diaz. Defendant claimed
he “already knew” who Diaz was, although he did not know his name. Defendant
believed that Diaz was talking on the phone with someone from his gang. When
defendant caught up with Diaz, Diaz “wanted to run but he fell.” Diaz then “ran straight”
towards defendant, “like he wanted to attack,” but defendant “stabbed him first.”
Defendant then left. Defendant did not realize that he had inflicted a deadly wound. A



                                             16
few days later, defendant threw the knife away on a freeway after cleaning it on a shirt
and breaking it into pieces.
       When asked how he felt about killing Diaz, defendant referred to the incident in
which his brother-in-law had been killed, and he noted that the shooter had not felt bad.
Defendant indicated he felt bad but that the other gang had “looked for it first.”
Defendant declined to write an apology letter to Diaz’s family, stating, “Yea, I feel bad,
but the game is the game.”
       Asked why he had decided to tell the truth, defendant explained, “you were going
to find out that it was me, so I didn’t want to be losing more time.” He further explained,
“To get done with all this. And so that you wouldn’t be wasting your time since at the
end you have the evidence and all because you said it.” Defendant continued to insist he
did not know what happened in the case involving the group assault and that no one else
was involved in the Diaz stabbing.
              2.     Proceedings Below
       Defendant’s motions in limine included a motion to exclude his confession.
Defendant argued that his Miranda waiver had not been knowing and intelligent nor
voluntary. The trial court held an Evidence Code section 402 hearing to determine the
admissibility of defendant’s confession.
       Dr. Perez, the clinical psychologist, had interviewed defendant three times and
administered an IQ test. Defendant’s verbal IQ was 76, which put him in the fifth
percentile and indicated he was “borderline impaired,” but not developmentally disabled.
Defendant’s limitations were in the areas of thinking and reasoning, particularly about
abstract ideas.
       Dr. Perez had reviewed defendant’s Miranda rights with him and determined that
defendant could understand those rights when he was presented with them in a “calm
situation.” However, defendant had said that he did not understand his rights at the time
of his police interview. Defendant had felt “tricked” and “very, very confused.”

                                             17
       Defendant’s trial counsel argued that it was not clear defendant understood each
of his Miranda rights, because defendant had not indicated he understood each right
individually. Instead, defendant had said, “Yes,” to indicate he understood his rights
only after all of the rights had been explained.
       The trial court found that defendant “clearly understood his rights and freely
submitted to questioning by the officers.” The trial court further found that defendant’s
confession was voluntary and “[n]ot the product of any coercive police activity.”
              3.     Legal Standard: Ineffective Assistance of Counsel
       In order to establish that trial counsel was ineffective, defendant must show
(1) that counsel’s performance was deficient because it was not “the result of reasonable
professional judgment” and “outside the wide range of professionally competent
assistance” (Strickland v. Washington (1984) 466 U.S. 668, 690) and (2) prejudice, that
is, a “reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different” (id. at p. 694).
              4.     Invocation of Right to Remain Silent
       The Fifth Amendment of the United States Constitution states that no person
“shall be compelled in any criminal case to be a witness against himself.” In Miranda,
the United States Supreme Court confirmed that “the Fifth Amendment privilege is
available outside of criminal court proceedings and serves to protect persons in all
settings in which their freedom of action is curtailed in any significant way from being
compelled to incriminate themselves.” (Miranda, supra, 384 U.S. at p. 467.)
       The Miranda court set forth the required advisements, explaining that an accused
must “be adequately and effectively apprised of his [or her] rights” and also that “the
exercise of those rights must be fully honored.” (Miranda, supra, 384 U.S. at p. 467.)
The Court also set forth the procedure to be followed after the advisements have been
given: “If the individual indicates in any manner, at any time prior to or during
questioning, that he [or she] wishes to remain silent, the interrogation must cease. At

                                              18
this point he [or she] has shown that he [or she] intends to exercise his [or her] Fifth
Amendment privilege; any statement taken after the person invokes his privilege cannot
be other than the product of compulsion, subtle or otherwise.” (Id. at pp. 473-474,
fn. omitted.)
       Although a suspect is not required to use the exact words of the Miranda warnings
when invoking his or her right to silence (see People v. Carey (1986) 183 Cal.App.3d 99,
104-105), the United States Supreme Court has made it clear that, following an initial
waiver, a subsequent invocation of the right to remain silent must be unambiguous in
order to require the police to cease questioning (Berghuis v. Thompkins (2010) 560 U.S.
370 (Berghuis). In Berghuis, the court explained the reason for this rule: “A requirement
of an unambiguous invocation of Miranda rights results in an objective inquiry that
‘avoid[s] difficulties of proof and . . . provide[s] guidance to officers’ on how to proceed
in the face of ambiguity. [Citation.]” (Id. at pp. 381-382.) The California Supreme
Court has further explained that “when a suspect under interrogation makes an
ambiguous statement that could be construed as an invocation of his or her Miranda
rights, ‘the interrogators may clarify the suspect’s comprehension of, and desire to invoke
or waive, the Miranda rights.’ [Citations.]” (People v. Farnam (2002) 28 Cal.4th 107,
181 (Farnam).)
       In this case, defendant contends effective trial counsel would have argued that
defendant invoked his right to remain silent when he stated, “I don’t want to continue
with all this. I want to go rest.” Defendant contends his statements were “framed in
much the same terms” as the invocation of the right to remain silent in In re Z.A. (2012)
207 Cal.App.4th 1401. In that case, during a police interview, the minor had stated,
“ ‘I don’t want to answer anymore [sic] questions.’ ” (Id. at p. 1410, fn. omitted.) The
appellate court described this as an “unambiguous invocation of her right to remain
silent.” (Id. at p. 1419.) Defendant also compares his statement to the statement



                                             19
“ ‘I plead the Fifth,’ ” which was found to be unambiguous in Anderson v. Terhune
(9th Cir. 2008) 516 F.3d 781, 787.
       The Attorney General contends defendant’s statements were equivocal, like the
statement “ ‘I don’t want to talk about it’ ” (People v. Williams (2010) 49 Cal.4th 405,
434 (Williams)) or the statement “ ‘I don’t know if I wanna talk anymore’ ” (People v.
Wash (1993) 6 Cal.4th 215, 237).
       Viewed objectively, defendant’s statements were not an unequivocal invocation of
the right to remain silent. Defendant’s stated desire to not “continue with all this” and
“go rest” was not, in context, a clear expression of his desire to stop talking to the police.
(See People v. Musselwhite (1998) 17 Cal.4th 1216, 1239 [defendant’s statement,
“ ‘I don’t want to talk about this’ ” was “something less” than an attempt to cut off police
questioning].) In context, defendant’s statements “reflect only momentary frustration and
animosity toward [Detective Jimenez].” (People v. Jennings (1988) 46 Cal.3d 963, 978;
id. at p. 977 [defendant did not invoke right to silence when stating that he was “ ‘not
going to talk’ ”]; see also People v. Stitely (2005) 35 Cal.4th 514, 535 (Stitely)
[reasonable officer would have concluded that when defendant stated, “ ‘I think it’s about
time for me to stop talking,’ ” he “expressed apparent frustration, but did not end the
interview”].) Given the ambiguity, Detective Jimenez was entitled to attempt to clarify
defendant’s intent and desire to waive his Miranda rights by asking, if defendant would
talk about “one more thing. Okay?” (See Farnam, supra, 28 Cal.4th at p. 181.) Since
defendant responded, “Yes,” Detective Jimenez reasonably understood defendant to have
clarified that questioning could proceed. (See Stitely, supra, at p. 535.)
       Because the record does not support a finding that defendant unambiguously
invoked his right to remain silent, his trial counsel was not ineffective for failing to seek
suppression of defendant’s confession on that ground.




                                              20
              5.     Voluntariness of Confession
       Defendant next contends his trial counsel was ineffective for failing to argue that
the “tactics of the interrogators” rendered his confession involuntary. Defendant argues
that the police used several coercive techniques in this case: (1) telling defendant that his
“penalty” would be shorter if he told the truth; (2) threatening defendant with being
“fucked up” if he lied; (3) falsely implying that defendant would get help from Detective
Jimenez because they were both Mexican; (4) falsely telling defendant that DNA
evidence and a surveillance video showed defendant’s involvement in the offense; and
(5) refusing to honor defendant’s requests to terminate the interview. Defendant also
points to the evidence of his limited IQ.
       “ ‘A statement is involuntary if it is not the product of “ ‘a rational intellect and
free will.’ ” [Citation.] The test for determining whether a confession is voluntary is
whether the defendant’s “will was overborne at the time he [or she] confessed.”
[Citation.] “ ‘The question posed by the due process clause in cases of claimed
psychological coercion is whether the influences brought to bear upon the accused were
“such as to overbear petitioner’s will to resist and bring about confessions not freely self-
determined.” [Citation.]’ [Citation.] In determining whether or not an accused’s will
was overborne, ‘an examination must be made of “all the surrounding circumstances—
both the characteristics of the accused and the details of the interrogation.” [Citation.]’
[Citation.]” [Citation.]’ [Citation.]” (People v. McWhorter (2009) 47 Cal.4th 318, 346-
347 (McWhorter).)
       “ ‘A finding of coercive police activity is a prerequisite to a finding that a
confession was involuntary under the federal and state Constitutions. [Citations.] A
confession may be found involuntary if extracted by threats or violence, obtained by
direct or implied promises, or secured by the exertion of improper influence. [Citation.]
Although coercive police activity is a necessary predicate to establish an involuntary
confession, it “does not itself compel a finding that a resulting confession is involuntary.”

                                              21
[Citation.] The statement and the inducement must be causally linked. [Citation.]’
[Citation.]” (McWhorter, supra, 47 Cal.4th at p. 347.)
       Defendant’s first claim is that when Detective Jimenez referred to a “penalty,”
he made “false promises of leniency as a reward for admission or confession.” (See
People v. Holloway (2004) 33 Cal.4th 96, 115 (Holloway).) Detective Jimenez told
defendant that “if you do things that you shouldn’t do and you lie, it’s a time out, it’s like
a penalty, like when you play soccer . . . .” Detective Jimenez also told defendant that the
length of the penalty depended “on what you do” and that “if you say the truth, it can [be]
shorter.” These statements “fall far short of being promises of lenient treatment in
exchange for cooperation.” (Id. at p. 116.) Detective Jimenez “did not represent that
[the officers], the prosecutor or the court would grant defendant any particular benefit if
he told them how the killing[] happened.” (Ibid.; compare In re Roger G. (1975) 53
Cal.App.3d 198, 203 (Roger G.) [police told juvenile suspect he would have a “chance of
probation or parole” if he was honest and that “they would try to help him more” if he
was honest].) By informing defendant that his “penalty” could be shorter if he told the
truth, Detective Jimenez “did no more than tell defendant the benefit that might ‘ “flow[ ]
naturally from a truthful and honest course of conduct” ’ [citation], for such
circumstances can reduce the degree of a homicide,” which “ ‘does possess degrees of
culpability.’ ” (Holloway, supra, at p. 116; see also Cal. Rules of Court, rule 4.423(b)(3)
[for sentencing purposes, a factor in mitigation is present when the defendant “voluntarily
acknowledged wrongdoing before arrest or at an early stage of the criminal process”].)
       Even if Detective Jimenez did use an improper coercive tactic by associating a
potentially lesser “penalty” with truthfulness, that “ ‘inducement’ ” was not “ ‘causally
linked’ ” to defendant’s much later admissions. (McWhorter, supra, 47 Cal.4th at
p. 347.) The discussion of a “penalty” came during the interrogation about the group
attack, before the police began asking defendant about the Diaz stabbing. Defendant
continued to deny involvement in the group attack, and he subsequently denied

                                              22
involvement in the Diaz stabbing. Thus, the record fails to show that the discussion of a
“penalty” was “the ‘motivating cause’ of defendant’s subsequent admissions and
confession. [Citation.]” (People v. Linton (2013) 56 Cal.4th 1146, 1177.)
       Defendant’s second claim is that Detective Jimenez improperly threatened
defendant with being “fucked up” if he lied. Detective Jimenez used terms such as “fuck
you up” several times during defendant’s interrogation. First, he told defendant that the
way a case is presented “can fuck you up,” explaining that if defendant did not give his
side of the story, the evidence would come from other sources. Second, he told defendant
that he did not like to “fuck up any Mexicans,” explaining that he could sleep well at
night as long as he provided everyone with “the opportunity to say the truth.” Third, he
told defendant that if defendant was found to be lying by the time he got to court, “they
are going to fuck you up.” Fourth, he told defendant that people would not believe
defendant if he told the truth later in the process and that “they’re gonna fuck you up.”
       We disagree with defendant’s claim that the references to being “fucked up” were
improper threats. In context, the record is clear that Detective Jimenez was not implying
that defendant would be punished or subjected to violence for lying. Rather, Detective
Jimenez was informing defendant that if he did not tell his side of the story, which might
provide evidence mitigating the crime, the evidence could result in him being convicted
of a more serious offense, and that with an early admission of guilt, defendant could be
eligible for a penalty mitigation. Thus, as with the “penalty” comments discussed above,
Detective Jimenez again “did no more than tell defendant the benefit that might ‘ “flow[ ]
naturally from a truthful and honest course of conduct.” ’ ” (Holloway, supra, 33 Cal.4th
at p. 116; see also Williams, supra, 49 Cal.4th at p. 442 [police did not engage in
improper tactics when they urged defendant “not to lie, because lies would antagonize the
court and the jury”].)
       Defendant’s third claim is that Detective Jimenez falsely implied that he would
help defendant because they were both Mexican. He refers to Detective Jimenez’s

                                             23
comments about being in a “position to help Mexican people that are victims and also
those that are suspects” and not wanting to “fuck up any Mexicans.” Defendant
analogizes these comments to the improper promises of leniency in cases such as
People v. Hogan (1982) 31 Cal.3d 815, 838 (disapproved of on other grounds by
People v. Cooper (1991) 53 Cal.3d 771, 836), where the defendant was told that the
police would help him if he cooperated by making a confession, and Roger G., supra, 53
Cal.App.3d at page 203, where the police told the juvenile suspect that they would try
to help him more if he was honest. However, we find Detective Jimenez’s comments
distinguishable from the improper comments in those cases. Detective Jimenez explained
that he could “help” Mexican suspects “make a decision that is going to be best” for
them; he did not promise to help get a more lenient sentence for defendant. And, as
discussed above, Detective Jimenez did not promise leniency or threaten defendant with
more severe punishment by saying that he did not want to “fuck up any Mexicans,” since
he followed up that comment by explaining that he could sleep well at night as long as he
provided everyone with “the opportunity to say the truth.”
       Defendant’s fourth claim is that Detective Jimenez used an improper coercive
tactic when he falsely informed defendant that DNA evidence and a surveillance video
showed defendant’s involvement in the offense. “[A]though police may use deceptive
tactics in attempting to persuade a defendant to confess, such deception may be
considered in deciding whether the totality of the circumstances indicate that the
confession was involuntary. [Citations.]” (In re Shawn D. (1993) 20 Cal.App.4th 200,
213 [officer falsely represented that juvenile suspect had been implicated by a friend and
that other evidence connected him to the crimes].) “ ‘Lies told by the police to a suspect
under questioning can affect the voluntariness of an ensuing confession, but they are not
per se sufficient to make it involuntary.’ [Citations.] Where the deception is not of a
type reasonably likely to procure an untrue statement, a finding of involuntariness is
unwarranted. [Citation.]” (Farnam, supra, 28 Cal.4th at p. 182 [deception about

                                            24
defendant’s fingerprints being found on robbery victim’s wallet was unlikely to produce a
false confession].) In this case, the officers did not tell defendant that his DNA was
found, only that it was “possible” that his DNA would “come out from this evidence.”
The officers also did not tell defendant that he was seen stabbing Diaz on the surveillance
video, only that he was seen running. Under the circumstances, neither instance of
deception was “of a type reasonably likely to procure an untrue statement.” (Ibid.)
       Fifth, defendant claims that his confession was involuntary because Detective
Jimenez refused to honor defendant’s requests to terminate the interview. Defendant
argues that even if he did not unambiguously invoke his right to remain silent, he at least
made it clear that he was tired and wanted the interview to end. Although defendant
stated he was tired and that he wanted to “go rest,” the record does not indicate that
defendant was overcome by fatigue or “suffering from sleep deprivation” (People v.
Anderson (1990) 52 Cal.3d 453, 470) at any time, but rather that he “effectively parried
the officers’ accusations and questions” (Williams, supra, 49 Cal.4th at p. 442) even after
confessing to the Diaz stabbing.
       Finally, defendant claims that the evidence of his limited IQ of 76 weighs in favor
of a determination that his confession was involuntary. Under the circumstances,
defendant’s low intelligence does not support a finding of involuntariness, since the
record does not show that the police used any improper tactics that could be said to have
taken “ ‘unfair or unlawful advantage of his ignorance, mental condition, or vulnerability
to persuasion.’ ” (See In re Brian W. (1981) 125 Cal.App.3d 590, 603.)
       In sum, after considering all of the circumstances surrounding defendant’s
interrogation and confession, the record does not support a finding that the police used
coercive tactics that “ ‘ “ ‘were “such as to overbear [defendant’s] will to resist and bring
about confessions not freely self-determined.” [Citation.]’ [Citation.]” ’ ” (McWhorter,
supra, 47 Cal.4th at pp. 346-347.) And, because the record does not support a finding



                                             25
that defendant’s confession was involuntary, his trial counsel was not ineffective for
failing to seek suppression of the confession on that ground.
       B.     Jury Instructions – Second Degree Murder
       Defendant contends the jury instructions on murder failed to define second degree
murder, in violation of his rights to due process and a jury trial under the Sixth and
Fourteenth Amendments.
              1.     Instructions Given
       Pursuant to CALCRIM No. 520, the jury was instructed that defendant was
charged with “murder, in violation of Penal Code §187.” The instruction specified that
the People were required to prove that “[o]ne, the defendant committed an act that caused
the death of another person; [¶] two, when the defendant acted, he had a state of mind
called malice aforethought; [¶] and three, he killed without lawful excuse or
justification.” The instruction further provided: “If you decide that the defendant
committed murder, you must then decide whether it is murder in the first or second
degree.”
       Pursuant to CALCRIM No. 521, the jury was instructed that defendant was being
prosecuted for first degree murder “under two theories: [¶] [o]ne, the murder was
willful, deliberate, and premeditated; [¶] and two, the murder was committed by lying in
wait.” The instruction specified the findings required for both theories. The instruction
also stated, “The People have the burden of proving beyond a reasonable doubt that the
killing was first-degree murder rather than a lesser crime. If the People have not met this
burden, you must find the defendant not guilty of first-degree murder.”
       Pursuant to CALCRIM No. 522, the jury was instructed, “Provocation may reduce
a murder from first degree to second degree and may reduce a murder to manslaughter.
The weight and significance of the provocation, if any, are for you to decide. [¶] If you
conclude that the defendant committed murder but was provoked, consider the
provocation in deciding whether the crime was first- or second-degree murder. Also,

                                             26
consider the provocation in deciding whether the defendant committed murder or
manslaughter.”
               2.    Analysis
       Defendant contends that together, the above three instructions left the jury with
the “incorrect impression” that only “provocation” could reduce first degree murder to
second degree murder. Defendant notes that a more recent version of CALCRIM
No. 520 (Fall 2014) now includes the following language: “If you decide that the
defendant committed murder, it is murder of the second degree, unless the People have
proved beyond a reasonable doubt that that it is murder of the first degree . . . .”
Acknowledging that he did not object to the instructions below, defendant argues that this
court should not find the issue forfeited because the instructions were not “legally
correct.”
       The Attorney General contends the instructions were not misleading. We agree.
“ ‘When reviewing a supposedly ambiguous [i.e., potentially misleading] jury instruction,
“ ‘we inquire “whether there is a reasonable likelihood that the jury has applied the
challenged instruction in a way” that violates the Constitution.’ ” ’ [Citation.]”
(People v. Ayala (2000) 24 Cal.4th 243, 289 (Ayala).) We “ ‘ “assume that the jurors are
intelligent persons and capable of understanding and correlating all jury instructions
which are given. [Citation.]” ’ [Citation.]” (People v. Martin (2000) 78 Cal.App.4th
1107, 1111.)
       In this case, the trial court distinguished between first and second degree murder
by instructing on the concepts of premeditation, lying in wait, and provocation. Under
the instructions given, the only way the jurors could find defendant guilty of first degree
murder was if they found he acted with premeditation or while lying in wait. In fact, the
instructions made it clear that a murder committed with malice could not be first degree
murder unless defendant acted under one of those two circumstances. The obvious
implication of this was that if defendant did not commit murder with premeditation or

                                              27
while lying in wait, he was only guilty of murder in the second degree. Moreover, the
instructions specified that if the jury found defendant committed murder, it was required
to determine whether the murder was of the first or second degree. While the instructions
indeed failed to define specifically the elements of second degree murder, the instructions
did make clear that if the jury found defendant committed murder but did not find
premeditation or lying in wait, then the crime was a murder of the second degree. There
is no “reasonable likelihood” the jury applied the instructions in an impermissible manner
when determining whether defendant was guilty of murder. (See Ayala, supra, 24
Cal.4th at p. 289.)
       C.     Murder Instructions
       Defendant contends the jury instructions on murder did not require the prosecution
to prove the absence of heat of passion, provocation, and imperfect self-defense, violating
his rights to due process and a jury trial under the Sixth and Fourteenth Amendments. He
contends the error was “compounded by” statements made by the prosecutor during
closing argument.
       Defendant acknowledges that he did not object to the instructions below on this
ground, but he contends he did not forfeit this claim because the murder instructions
affected his substantial rights (§ 1259) and because the trial court had a sua sponte duty to
instruct the jury on the elements of the charged offenses and relevant defenses. We will
assume the asserted error is cognizable on appeal.
              1.      Instructions Given
       In addition to CALCRIM Nos. 520, 521, and 522, which are reproduced in
section III.B.1 above, the jury was instructed on two ways that “[a] killing that would
otherwise be murder” can be “reduced to voluntary manslaughter.”
       First, pursuant to CALCRIM No. 570, the jury was instructed that a murder is
reduced to manslaughter “if the defendant killed someone because of a sudden quarrel or
in the heat of passion.” That instruction informed the jury, “The People have the burden

                                             28
of proving beyond a reasonable doubt that the defendant did not kill as a result of a
sudden quarrel or heat of passion. If the People have not met this burden, you must find
the defendant not guilty of murder.”
       Second, pursuant to CALCRIM No. 571, the jury was instructed that a murder is
reduced to manslaughter “if the defendant killed a person because he acted in imperfect
self-defense.” That instruction informed the jury, “The People have the burden of
proving beyond a reasonable doubt that the defendant was not acting in imperfect self-
defense. If the People have not met this burden, you must find the defendant not guilty
of murder.”
              2.     Analysis
       Defendant cites Mullaney v. Wilbur (1975) 421 U.S. 684 for the proposition that
“the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the
absence of the heat of passion on sudden provocation when the issue is properly
presented in a homicide case.” (Id. at p. 704; see also People v. Rios (2000) 23 Cal.4th
450, 462.)
       Defendant points out that CALCRIM No. 520, “the instruction on murder,”
informed the jury that the prosecution had to prove defendant “killed without lawful
excuse or justification” but that it did not specify that provocation, heat of passion, and
imperfect self-defense were “defenses to the formation of malice.” He acknowledges that
CALCRIM Nos. 570 and 571 stated that the prosecution had the burden of proof to show
defendant did not kill Diaz as the result of a sudden quarrel, in the heat of passion, or in
imperfect self-defense, but he contends that the jury might not have considered those
instructions when it was considering the murder charge.
       “In reviewing a claim of instructional error, the ultimate question is whether ‘there
was a reasonable likelihood the jury applied the challenged instruction in an
impermissible manner.’ [Citation.] ‘[T]he correctness of jury instructions is to be
determined from the entire charge of the court, not from a consideration of parts of an

                                             29
instruction or from a particular instruction.’ [Citation.] ‘Moreover, any theoretical
possibility of confusion [may be] diminished by the parties’ closing arguments . . . .’
[Citation.] ‘ “ ‘Jurors are presumed to be intelligent, capable of understanding
instructions and applying them to the facts of the case.’ ” ’ [Citation.]” (People v. Hajek
and Vo (2014) 58 Cal.4th 1144, 1220 (Hajek and Vo).)
       Considering the instructions as a whole, the jury was clearly and fully instructed
that defendant could not be guilty of murder if the prosecution failed to prove that
defendant did not kill Diaz as the result of a sudden quarrel, in the heat of passion, or in
imperfect self-defense. The instructions on murder were followed immediately by
CALCRIM Nos. 570 and 571, and the jury was instructed, “Pay careful attention to all of
these instructions and consider them together.” (See CALCRIM No. 200.) Further, the
parties’ closing arguments diminished any possibility of confusion. (See Hajek and Vo,
supra, 58 Cal.4th at p. 1220.) The prosecutor discussed the concepts of murder, sudden
quarrel, heat of passion, and unreasonable defense together, and defendant’s trial counsel
reminded the jury that the prosecutor had the burden of proving that defendant did not act
in imperfect self-defense or in the heat of passion.
       In sum, in light of the instructions given and the arguments of counsel, we
conclude there is no “ ‘reasonable likelihood the jury applied the challenged instruction
in an impermissible manner.’ [Citation.]” (Hajek and Vo, supra, 58 Cal.4th at p. 1220.)
       D.     Gang Expert Testimony
       Defendant contends Detective Hernandez, the prosecution’s gang expert,
improperly relied on testimonial hearsay in forming his opinions about the primary
activities of the SSP gang and about the gang membership of the individuals who
committed the predicate offenses. Defendant acknowledges that the record is “not well
developed” regarding the information that Detective Hernandez actually relied upon, but
he argues that Detective Hernandez’s opinions appear to be based, at least in part, upon



                                             30
“evidence that is sufficient[ly] formalized to be ‘testimonial.’ ” Defendant specifically
refers to “the hearsay reports of other officers.”
              1.     Proceedings Below
       When Detective Hernandez began testifying about the group attack that led to
defendant’s arrest, defendant’s trial counsel objected on grounds of hearsay and
“[c]onfrontation.” After a bench conference, the trial court ruled “that the officer going
forward in expressing his opinion may rely on hearsay in forming his opinion.”
       Defendant’s trial counsel later objected when Detective Hernandez began
testifying about the predicate offenses showing a “pattern of criminal gang activity”
(see § 186.22, subd. (f)) on grounds of hearsay, confrontation, and foundation. The
trial court overruled the objection after the prosecutor argued that while the evidence was
hearsay, it was reliable and would be used as the basis for expert opinion. The trial court
agreed that defendant would be permitted to make “a standing objection” to Detective
Hernandez’s testimony “concerning the predicate offenses.”
       During Detective Hernandez’s testimony, the trial court gave the jury a limiting
instruction, which provided: “Throughout Det. Hernandez’s testimony, and going
forward, as an expert, he has testified, and he may testify, that he has considered
information received from other officers. Information such as contained in police reports
and field identification cards. In formulating his opinion, an expert is entitled to rely
upon certain hearsay matters. These hearsay matters are only to be considered by you in
evaluating the basis of the expert’s opinion and not to be considered for their truth.” The
prosecutor clarified that the admonition also applied “to the circumstances surrounding
the predicate offenses.”




                                              31
       The jury received another limiting instruction regarding the gang expert’s
testimony at the end of trial.5 The jury was also instructed on expert witness testimony
pursuant to CALCRIM No. 333.6
              2.     Confrontation Clause Analysis
       The Sixth Amendment to the United States Constitution guarantees the accused in
criminal prosecutions the right “to be confronted with the witnesses against him [or her].”
In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the United States Supreme
Court held that this provision prohibits the admission of testimonial hearsay unless the
witness is unavailable or there was a prior opportunity for cross-examination. (Id. at
p. 68.) In Crawford, the court held that the Confrontation Clause barred the prosecution
from introducing a statement made during a formal police interview, explaining that
“interrogations by law enforcement officers fall squarely within” the definition of
testimonial hearsay. (Id. at p. 53.)
       The high Court has returned to the subject of testimonial statements on a number
of occasions since Crawford. (See Davis v. Washington (2006) 547 U.S. 813, 828-830


       5
          The instruction provided: “Det. Juan Hernandez testified that in reaching his
conclusions as an expert witness, he considered information received from other police
officers, information documented in field identification cards, and police reports. In
formulating his opinion, an expert is entitled to rely upon certain hearsay matters. These
hearsay matters are only to be considered by you in evaluating the basis of the expert’s
opinion and are not to be considered for the truth.” (See CALCRIM No. 360.)
        6
          The instruction provided: “Witnesses were allowed to testify as experts and to
give opinions. You must consider the opinions, but you are not required to accept them
as true or correct. The meaning and importance of any opinion are for you to decide. In
evaluating the believability of an expert witness, follow the instructions about the
believability of witnesses generally. In addition, consider the expert’s knowledge, skill,
experience, training and education, the reasons the expert gave for any opinion, and the
facts or information on which the expert relied in reaching that opinion. You must decide
whether information on which the expert relied was true and accurate. You may
disregard any opinion that you find unbelievable, unreasonable, or unsupported by the
evidence.”


                                            32
[victim’s statements to a 911 operator during and immediately after the crime were not
testimonial but victim’s statements made to a police officer were testimonial]; Melendez-
Diaz v. Massachusetts (2009) 557 U.S. 305, 311 [affidavits from forensic analysis were
testimonial hearsay]; Michigan v. Bryant (2011) 562 U.S. 344, 378 [shooting victim’s
statement to the police, made while the victim lay bleeding in a parking lot, was not
testimonial ]; Bullcoming v. New Mexico (2011) 564 U.S. __, __ [131 S.Ct. 2705, 2710,
2717] (Bullcoming) [certified forensic laboratory report prepared to determine a suspect’s
blood alcohol content was testimonial]; Ohio v. Clark (2015) 576 U.S. __, __ [135 S.Ct.
2173, 2179] [three-year-old victim’s statements to preschool teachers were not
testimonial].)
       Relevant to the present case, the United States Supreme Court considered whether
“basis evidence” —that is, evidence that provides a basis for an expert opinion—is
admissible under the confrontation clause in Williams v. Illinois (2012) 567 U.S. __
[132 S.Ct. 2221]. In Williams v. Illinois, the question was, “[D]oes Crawford bar an
expert from expressing an opinion based on facts about a case that have been made
known to the expert but about which the expert is not competent to testify?” (Id. at p. __
[132 S.Ct. at p. 2227].) The Williams v. Illinois court examined whether a laboratory
expert could rely on a DNA report from a prior criminal case in rendering his opinion that
the defendant’s DNA profile matched the prior sample. In a 4-1-4 opinion, the court held
that admission of the expert’s testimony did not violate the confrontation clause.
       A plurality of the Williams v. Illinois court found that even if the “basis evidence”
was offered for its truth, it was not testimonial. (Williams v. Illinois, supra, 567 U.S. at
p. __ [132 S.Ct at p. 2228] (plur. opn. of Alito, J., joined by Roberts, C. J., Kennedy &
Breyer, JJ.).) The DNA report was “produced before any suspect was identified,” it was
sought “for the purpose of finding a rapist who was on the loose” rather than to obtain
evidence against the defendant, and it was “not inherently inculpatory.” (Id. at p. __
[132 S.Ct at p. 2228].) Justice Thomas agreed that the “basis evidence” was not

                                              33
testimonial, but for different reasons: it “lack[ed] the solemnity of an affidavit or
deposition,” and, “although the report was produced at the request of law enforcement,
it was not the product of any sort of formalized dialogue resembling custodial
interrogation.” (Id. at p. __ [132 S.Ct. at p. 2260] (conc. opn. of Thomas, J.).)
       The California Supreme Court has not yet decided whether the Confrontation
Clause prohibits a gang expert from relying on testimonial hearsay as the basis of an
opinion, nor whether a gang expert may rely on testimonial hearsay to provide evidence
of the elements of the gang enhancement.7 In People v. Gardeley (1996) 14 Cal.4th 605
(Gardeley), the court reasoned that, “[c]onsistent with [the] well-settled principles”
concerning expert witness testimony, a detective “could testify as an expert witness and
could reveal the information on which he had relied in forming his expert opinion,
including hearsay.” (Id. at p. 619.) Gardeley reasoned that a gang expert can rely on
inadmissible hearsay in rendering an opinion, because such evidence is not offered as
“ ‘independent proof’ of any fact.” (Ibid.) Gardeley did not address a Confrontation
Clause claim nor the question whether testimonial hearsay can be admitted through a
gang expert to prove elements of the gang enhancement such as the “pattern of criminal
gang activity.” (§ 186.22, subd. (f).)
              3.     Burden of Proof
       Because defendant made timely and specific Sixth Amendment objections to
Detective Hernandez’s reliance on hearsay as the basis for his expert opinions, the
prosecution, “as the proponent of evidence presumptively barred by the hearsay rule and



       7
         The California Supreme Court is currently considering whether the Sixth
Amendment right to confrontation bars a gang expert’s reliance on testimonial hearsay.
(People v. Sanchez (2014) 223 Cal.App.4th 1, review granted May 14, 2014, S216681;
see also People v. Archuleta (2014) 225 Cal.App.4th 527, review granted June 11, 2014,
S218640 [briefing deferred pending consideration and disposition of People v. Sanchez].)


                                             34
the Confrontation Clause,” had the burden of proving that the statements that Detective
Hernandez relied upon were not testimonial. (Idaho v. Wright (1990) 497 U.S. 805, 816.)
              4.     Testimonial Hearsay Analysis: Primary Activities
       The record indicates that Detective Hernandez’s opinion about the primary
activities of the SSP gang was based on his own personal knowledge. Detective
Hernandez had been working in the Gang Investigation Unit for about three years by the
time of trial. He had been involved in several hundred gang investigations during his law
enforcement career, and he had been the lead investigator in at least 50 gang cases. He
had taken numerous gang training classes and had spent at least 100 hours in training on
Hispanic street gangs. After 2010, when he became a gang detective, he received
“primarily Sureno street gang cases.” On this record, the prosecution carried its burden
of showing that Detective Hernandez’s testimony about the primary activities of the SSP
gang was principally based on his personal involvement in gang cases, rather than on the
type of information that could be categorized as testimonial hearsay.
              5.     Testimonial Hearsay Analysis: Predicate Offenses
       The record indicates that Detective Hernandez’s testimony about the gang
membership of the individuals who committed the predicate offenses was based in part
on his own personal knowledge and in part on probable testimonial hearsay.
       The first predicate offense was committed by Domingo Santos Rojas, who
Detective Hernandez believed to have been a Sureño gang member based on “the facts of
the case.” The record does not indicate that Detective Hernandez had any personal
involvement in the investigation of the Rojas crime. Thus, the prosecution did not carry
its burden to show that Detective Hernandez relied on non-testimonial hearsay, as
opposed to testimonial hearsay such as police reports. (See Bullcoming, supra, 564 U.S.
at p. __ [131 S.Ct. 2705, 2717] [holding that a document “created solely for an
‘evidentiary purpose,’ . . . made in aid of a police investigation, ranks as testimonial”].)



                                              35
       The same is true for the third predicate offense, involving Diego Rafael, who
Detective Hernandez believed to have been a member of SSP based on the “facts of the
case, his self-admission to law enforcement, and his prior contacts . . . .” The record does
not indicate that Detective Hernandez had any personal involvement in the investigation
of the underlying crime or any personal familiarity with Rafael. Nothing in the record
shows that Detective Hernandez relied on non-testimonial hearsay in forming his opinion
about Rafael’s gang membership.
       However, as to the second predicate offense, which was committed by Marco
Ernest Lomelli, the record does show that Detective Hernandez relied on non-testimonial
hearsay in forming his opinions about Lomelli’s gang membership. Detective Hernandez
was personally familiar with Lomelli from prior contacts with him during gang
investigations, and Detective Hernandez had personally participated in the investigation
of the underlying offense. Detective Hernandez referenced the prior contacts and
Lomelli’s gang tattoos in explaining the basis for his opinion about Lomelli’s
membership in the SSP gang.
       We will assume that the trial court should not have allowed Detective Hernandez
to offer evidence of Rojas and Rafael’s gang membership because the prosecution failed
to show that he was relying on information that was non-testimonial hearsay. However,
neither of those two offenses was necessary for proof of the requisite “pattern of criminal
gang activity” (§ 186.22, subds. (e) & (f)), since—as Detective Hernandez testified—the
charged crime qualified as a predicate offense (see Gardeley, supra, 14 Cal.4th at p. 625)
and Detective Hernandez’s testimony about Lomelli’s gang membership came from his
own personal knowledge. Any error in admitting the evidence of Rojas and Rafael’s
gang membership was thus harmless beyond a reasonable doubt. (See Chapman v.
California (1967) 386 U.S. 18, 24.)
       In sum, we conclude that the trial court did not commit reversible error by
admitting testimonial hearsay to show that the primary activities of the SSP gang

                                            36
included crimes enumerated in the gang statute and that SSP gang members had engaged
in a “pattern of criminal gang activity.” (§ 186.22, subds. (e) & (f).)
       E.     Sufficiency of the Evidence: Primary Activities
       Defendant contends there was insufficient evidence to support the jury’s finding
regarding the “primary activities” element of the gang enhancement. (See § 186.22,
subd. (f).)
              1.     Standard of Review
       “ ‘On appeal we review the whole record in the light most favorable to the
judgment to determine whether it discloses substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt. [Citations.]’ ” (People v. Cravens
(2012) 53 Cal.4th 500, 507.) The same standard applies to our review of evidence to
support a gang enhancement finding. (People v. Catlin (2001) 26 Cal.4th 81, 139.)
              2.     Analysis
       The phrase “criminal street gang” is defined in section 186.22, subdivision (f) as
“any ongoing organization, association, or group of three or more persons, whether
formal or informal, having as one of its primary activities the commission of one or more
of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33),
inclusive, of subdivision (e), having a common name or common identifying sign or
symbol, and whose members individually or collectively engage in or have engaged in a
pattern of criminal gang activity.” (Emphasis added.)
       “The phrase ‘primary activities,’ as used in the gang statute, implies that the
commission of one or more of the statutorily enumerated crimes is one of the group’s
‘chief’ or ‘principal’ occupations. [Citation.]” (People v. Sengpadychith (2001) 26
Cal.4th 316, 323.) “Sufficient proof of the gang’s primary activities might consist of
evidence that the group’s members consistently and repeatedly have committed criminal
activity listed in the gang statute.” (Id. at p. 324.) “Also sufficient [to show the gang’s

                                             37
primary activities] might be expert testimony,” i.e., testimony by a gang expert based on
the expert’s conversations with gang members, the expert’s personal investigations of
gang crimes, and information the expert has obtained from other law enforcement
officers. (Ibid.; see Gardeley, supra, 14 Cal.4th at p. 620.)
       The evidence in this case was similar to the evidence that supported a primary
activities finding in People v. Martinez (2008) 158 Cal.App.4th 1324 (Martinez). In
Martinez, the gang expert was familiar with the defendant’s gang “based on regular
investigations of its activity and interaction with its members.” (Id. at p. 1330.) He
testified that the gang’s primary activities included “robbery, assault—including assaults
with weapons, theft, and vandalism,” and he testified about two prior gang offenses, both
robberies, which had occurred in separate years. (Ibid.) The Martinez court held that the
gang expert’s testimony was sufficient “to prove the gang’s primary activities fell within
the statute.” (Ibid.)
       Here, the prosecution’s gang expert, Detective Hernandez, was familiar with
defendant’s gang, the SSP. He had been working in the San Jose Police Department’s
Gang Investigation Unit for about three years by the time of trial. He had been involved
in several hundred gang investigations during his law enforcement career, and he had
been the lead investigator in at least 50 gang cases. He had taken numerous gang training
classes and had spent at least 100 hours in training on Hispanic street gangs. After 2010,
when he became a gang detective, he received “primarily Sureno street gang cases.” He
was aware of the SSP gang’s territory and the locations where SSP gang members were
often contacted by law enforcement due to criminal activity. He testified that the SSP
gang’s primary activities included assault with a deadly weapon, carjacking, and murder.
He testified about three prior criminal offenses committed by SSP gang members. Thus,
Detective Hernandez’s testimony showed that he was familiar with defendant’s gang
“based on regular investigations of its activity and interaction with its members.”
(Martinez, supra, 158 Cal.App.4th at p. 1330.) This evidence was sufficient to support

                                             38
the jury’s finding that the primary activities of the SSP gang were assault with a deadly
weapon, carjacking, and murder, which are offenses listed in section 186.22,
subdivision (e)(1)-(25) or (31)-(33). (See § 186.22, subd. (f).)
       Contrary to defendant’s claim, this case is not similar to In re Alexander L. (2007)
149 Cal.App.4th 605 (Alexander L.). In that case, when the gang expert was asked about
the primary activities of the minor’s gang, “he replied: ‘I know they’ve committed quite
a few assaults with a deadly weapon, several assaults. I know they’ve been involved in
murders. [¶] I know they’ve been involved with auto thefts, auto/vehicle burglaries,
felony graffiti, narcotic violations.’ ” (Id. at p. 611.) However, “[n]o specifics were
elicited as to the circumstances of these crimes, or where, when, or how [the expert] had
obtained the information.” (Id. at pp. 611-612.) No “information establishing reliability”
was elicited from the gang expert, and thus it was “impossible to tell whether his claimed
knowledge of the gang’s activities might have been based on highly reliable sources, such
as court records of convictions, or entirely unreliable hearsay. [Citation.]” (Id. at p. 612,
fn. omitted.) In fact, the gang expert “did not directly testify that criminal activities
constituted [the gang’s] primary activities,” and he had acknowledged that most of the
cases he was familiar with were “graffiti related.” (Ibid.)
       Here, Detective Hernandez did provide specifics about several of the SSP gang’s
prior crimes. He testified about his extensive experience as a gang investigator. Unlike
in Alexander L., certified copies of convictions relating to the predicate offenses were
introduced into evidence. Finally, Detective Hernandez directly testified that the primary
activities of the SSP gang were assault with a deadly weapon, carjacking, and murder.
       We conclude substantial evidence supported the jury’s finding that the primary
activities of the SSP gang were assault with a deadly weapon, carjacking, and murder.
       F.     Voicemail Message
       Defendant contends the trial court erred by admitting the voicemail message
Diaz left for his girlfriend on the night of the murder, in which Diaz stated, “I’m about

                                              39
to get jumped tonight.” Defendant contends the voicemail message was not relevant
(Evid. Code, § 210) and that even if the voicemail message was admissible, it should
have been excluded under Evidence Code section 352. Defendant also contends the
admission of the voicemail message into evidence violated his right to due process under
the Fourteenth Amendment.
              1.     Proceedings Below
       Defendant filed a motion in limine to exclude Diaz’s voicemail message.
Defendant argued that the voicemail message was hearsay and that the voicemail
message should be excluded as more prejudicial than probative (Evid. Code, § 352)
because hearing “a voice from the grave” would “invite the jury to overly sympathize
with the manner in which [Diaz] died.” Finally, defendant argued that admitting the
voicemail message would violate his state and federal constitutional rights to
confrontation and due process.
       The prosecutor argued that the voicemail message showed Diaz’s state of mind,
specifically the “stress of the event or what was happening . . . moments before he was
attacked and ultimately killed.” In response, defendant’s trial counsel argued that Diaz’s
state of mind was not relevant. He argued that the issues the jury had to determine
depended on defendant’s state of mind only.
       The trial court found that Diaz’s state of mind was relevant because defendant had
brought up Diaz’s conduct in his statement to the police. The trial court thus found that
the voicemail message was admissible to prove Diaz’s state of mind under Evidence
Code section 1250, subdivision (a)(2).8


       8
         Evidence Code section 1250, subdivision (a)(2) permits introduction of
“evidence of a statement of the declarant’s then existing state of mind, emotion, or
physical sensation” if it was made under circumstances such as to indicate its
trustworthiness (Evid. Code, § 1252) and if “[t]he evidence is offered to prove or explain
acts or conduct of the declarant” (id., subd. (a)(2)).


                                            40
              2.     Analysis
       “We review a trial court’s rulings on the admission and exclusion of evidence for
abuse of discretion. [Citation.]” (People v. Chism (2014) 58 Cal.4th 1266, 1291.) The
trial court’s discretion is broad, particularly “ ‘where, as here, underlying that
determination are questions of relevancy, the state of mind exception to the hearsay rule,
and undue prejudice. [Citation.]’ ” (People v. Escobar (2000) 82 Cal.App.4th 1085,
1103 (Escobar).)
       In Escobar, the defendant was charged with murdering his wife after he shot her in
the garage of their home. The defendant claimed that on the night of the shooting, his
wife had kicked him, insulted him, and told him she had slept with another man in his
bed. (Escobar, supra, 82 Cal.App.4th at p. 1092.) A rebuttal witness testified that about
three weeks before the shooting, the wife had expressed fear that the defendant would kill
her if she left him. (Ibid.) On appeal, the defendant challenged the admission of the
evidence of his wife’s statements, but the court held that her statements were admissible
under Evidence Code section 1250 to impeach the defendant’s claims about his wife’s
state of mind. (Id. at p. 1103.) Since the defendant had testified that his wife had
“fearlessly challenged him in the garage, kicked him in the testicles, and insulted him in a
very provocative way,” and because that testimony was presented “in support of a theory
that the killing amounted to no more than voluntary manslaughter,” the defendant had
placed his wife’s state of mind in issue. (Ibid.)
       Here, defendant similarly placed Diaz’s state of mind in issue. During his police
interview, defendant claimed that Diaz “ran straight” towards defendant, “like he wanted
to attack,” before defendant stabbed him. This statement provided the basis for the
defense theories of self-defense and imperfect self-defense. During arguments to the
jury, defendant’s trial counsel asserted that defendant had committed a “lawful killing in
self-defense” because he reasonably believed that Diaz was threatening to kill him or
inflict great bodily injury. Because the defense claimed that Diaz appeared to be

                                              41
attacking him, the prosecution was entitled to introduce evidence of Diaz’s state of mind
to impeach that claim. (See Escobar, supra, 82 Cal.App.4th at p. 1103.) The trial court
did not abuse its discretion by finding the voicemail message relevant (Evid. Code,
§ 210) and admissible under Evidence Code section 1250.
       Defendant points out that Diaz’s voicemail message was left at 1:02 a.m., but that
the 9-1-1 call reporting an incident on West Virginia Street was not made until about
1:39 a.m. However, a statement may be admissible to show state of mind under Evidence
Code section 1250 even if it is not contemporaneous with the criminal offense. (See
Escobar, supra, 82 Cal.App.4th at p. 1092 [statements made three weeks prior to
shooting were admissible to show victim’s state of mind].)
       We further conclude the trial court did not abuse its discretion by finding that the
probative value of Diaz’s voicemail message was not “substantially outweighed by the
probability that its admission [would] (a) necessitate undue consumption of time or
(b) create substantial danger of undue prejudice, of confusing the issues, or of misleading
the jury.” (Evid. Code, § 352.) As explained above, the voicemail message was
probative of Diaz’s state of mind, which defendant placed at issue in claiming self-
defense and unreasonable self-defense. The voicemail message was brief. Diaz did not
name defendant as his assailant in the voicemail message or provide any other details
that posed the potential for causing undue prejudice—that is, the voicemail message did
not tend to “ ‘evoke an emotional bias against the defendant as an individual.’ ” (See
People v. Karis (1988) 46 Cal.3d 612, 638.)
       In sum, the trial court did not abuse its discretion by admitting Diaz’s voicemail
message into evidence.
       G.     Hearsay Statements of Unidentified Declarants
       Defendant contends the trial court erred by allowing Mendoza Naranjo to testify
about hearsay statements by unidentified declarants and about the statement by a person
she identified as “Droopy.” Defendant contends there was no foundation for the

                                             42
admission of any of these statements under the hearsay exception for spontaneous
statements (Evid. Code, § 1240)9 because there was no evidence about whether Droopy
or the other unidentified declarants had “personally witnessed anything” and no evidence
about whether any of the declarants were “speaking under stress caused by their
perception.” Defendant contends the error violated both state law and his federal
constitutional right to due process.
              1.     Proceedings Below
       As recounted in the background section, above, Mendoza Naranjo testified that
she heard Droopy comment, “Shit went down,” after he entered the Union Street
residence shortly before defendant. Other people also came into the residence at about
the same time. Mendoza Naranjo heard the people say that “something had happened.”
According to Mendoza Naranjo, these people said “that they had beat up somebody.”
       Defendant objected to the above testimony on a number of grounds, including
hearsay, confrontation, and lack of foundation. The trial court admitted the evidence as
spontaneous statements. (See Evid. Code, § 1240.)
              2.     Analysis
       “ ‘ “To render [statements] admissible [under the spontaneous declaration
exception] it is required that (1) there must be some occurrence startling enough to
produce this nervous excitement and render the utterance spontaneous and unreflecting;
(2) the utterance must have been before there has been time to contrive and misrepresent,
i.e., while the nervous excitement may be supposed still to dominate and the reflective
powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the


       9
        Evidence Code section 1240 provides: “Evidence of a statement is not made
inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or
explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made
spontaneously while the declarant was under the stress of excitement caused by such
perception.”


                                             43
occurrence preceding it.” [Citations.]’ [Citation.]” (People v. Thomas (2011) 51 Cal.4th
449, 495.) The determination of whether a statement meets these requirements is
reviewed for abuse of discretion. (Ibid.; see also People v. Gutierrez (2000) 78
Cal.App.4th 170, 177-178 (Gutierrez) [trial court exercises discretion in determining
whether there is a foundation for admitting spontaneous statements].)
       In Gutierrez, the defendant was convicted of robbery. The defendant and a
companion had used knives to obtain money and a watch from the victim, then fled in a
green minivan. (Gutierrez, supra, 78 Cal.App.4th at p. 173.) Shortly after the robbery, a
man approached the victim, saying he had written down the license plate and appearing
to be nervous and scared. (Id. at p. 176.) The man gave the victim a piece of paper with
a license plate number written on it, which led to the defendant’s identification and arrest.
The piece of paper was admitted as a spontaneous statement. (Ibid.) On appeal, the
defendant argued that there was an insufficient foundation for admission of the piece of
paper because no evidence showed that the writer had seen any of the robbery. (Id. at
p. 177.) The Gutierrez court found no abuse of discretion, explaining: “Although no
direct evidence was introduced on the point, there was evidence from which it could be
inferred the declarant had witnessed the robbery. . . . ‘Had the unidentified man not
witnessed the robbery, there would have been no reason for him to write down the license
plate number and give it to [the victim].’ ” (Id. at p. 178, fn. omitted.) The court further
concluded that “the trial court did not abuse its discretion by impliedly finding the
declarant’s statement was made while nervous excitement still dominated his mental
processes,” pointing to the victim’s testimony about the declarant’s apparent fear and
nervousness. (Id. at p. 180.)
       In the instant case, as in Gutierrez, there was no direct evidence supporting a
finding that the declarants had personally witnessed the Diaz stabbing. However, as in
Gutierrez, the circumstantial evidence permitted that inference. The declarants all
entered the Union Street residence at about the same time as defendant, who had a bloody

                                             44
knife. The stabbing had taken place nearby. Had the declarants not been participants or
witnesses to the stabbing, “ ‘there would have been no reason’ ” for them to make the
challenged comments. (See Gutierrez, supra, 78 Cal.App.4th at p. 178.) The record also
provides a basis for the trial court’s implied finding that the declarants made the
challenged statements while under the “stress of excitement” caused by witnessing the
stabbing. (See Evid. Code, § 1240, subd. (b).) Mendoza Naranjo testified that Droopy
appeared nervous and that the others were agitated. And again, the stabbing had
apparently just occurred, since defendant still had the bloody knife.
       The trial court did not abuse its discretion by finding that Evidence Code
section 1240 permitted introduction of the statements made by Droopy and other persons
at the Union Street residence on the night of the Diaz stabbing.
       H.     Cumulative Impact of Errors
       Defendant contends the cumulative impact of the alleged errors violated his
federal due process rights. (See People v. Hill (1998) 17 Cal.4th 800, 844 [“a series of
trial errors, though independently harmless, may in some circumstances rise by accretion
to the level of reversible and prejudicial error”].)
       We have concluded that the trial court did not err with respect to (1) the jury
instructions on murder, (2) the admission of Diaz’s voicemail message, or (3) the
admission of hearsay statements through Mendoza Naranjo’s testimony. We have also
concluded there was sufficient evidence to support the jury’s finding regarding the
“primary activities” element of the gang enhancement (§ 186.22, subd. (f)) and that
assuming the prosecution’s gang expert improperly relied on testimonial hearsay in
testifying about the gang membership of the individuals convicted of the predicate
offenses, the error was harmless. We have further concluded that defendant’s trial
counsel was not ineffective for failing to argue for suppression of defendant’s confession
on the ground that defendant invoked his right to remain silent during the interrogation



                                              45
and on the ground that the interrogation tactics rendered the confession involuntary. As
there were not multiple errors, there was no cumulative impact.

                                  IV.   DISPOSITION
      The judgment is affirmed.




                                           46
                             ___________________________________________
                             BAMATTRE-MANOUKIAN, J.




WE CONCUR:




__________________________
ELIA, ACTING P.J.




__________________________
MIHARA, J.
