Filed 4/15/16 P. v. Diaz CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION THREE

THE PEOPLE,                                                                B258629

         Plaintiff and Respondent,                                         (Los Angeles County
                                                                           Super. Ct. No. BA387967)
         v.

DONIVAN DIAZ et al.,

         Defendants and Appellants.




         APPEAL from judgments of the Superior Court of Los Angeles County,
George G. Lomeli, Judge. Reversed in part, and affirmed with modifications in part.
         Richard D. Miggins, under appointment by the Court of Appeal, for Defendant
and Appellant Donivan Diaz.
         Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant
and Appellant Octavian Moore.
         Peter Gold, under appointment by the Court of Appeal, for Defendant and
Appellant Michael Onley.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr.
and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
                            _______________________________________
                                    INTRODUCTION
       After a jury trial, defendants Donivan Diaz, Octivan Moore,1 and Michael Onley
were convicted of the murder of Andrew Todd Cherry. The jury found true the
allegations that they committed the murder while engaged in the crimes of robbery and
burglary, and a principal discharged a firearm during the murder. Defendants were
sentenced to life in state prison without the possibility of parole.
       On appeal, defendants raise numerous claims of error. All three defendants
contend the following: the trial court violated their federal and state speedy trial rights;
the court violated defendants’ right to be present at trial by conducting numerous
hearings outside of their presence; the court erred in admitting portions of a police
interview with one of the prosecution’s key witnesses; the court erred by excluding
third-party culpability evidence; the court violated defendants’ due process rights by
failing to exclude cell-phone evidence that defendants contend the prosecution did not
produce until the middle of trial; the court violated defendants’ due process rights when
it failed to strike the testimony of the prosecution’s rebuttal witness; insufficient
evidence supports the jury’s finding that Cherry died as a result of defendants’ robbery
and burglary; the prosecutor committed misconduct during closing argument by
appealing to the sympathy and emotions of the jury; the court erred in instructing
prospective jurors that defendants’ trial did not involve the death penalty; the court
failed adequately to investigate potential juror misconduct; and the court erred in
imposing parole revocation restitution fines.
       Moore and Onley contend the court violated their right of confrontation by
admitting out-of-court statements Diaz made to his girlfriend that incriminated Moore
and Onley; the court erred in admitting those statements as declarations against penal
interest; and the felony-murder special circumstance enhancements are
unconstitutionally vague. Finally, Onley contends the court erred in denying as

1
      Although Moore’s notice of appeal and appellate briefs indicate his first name is
“Octavian,” his first name appears consistently as “Octivan” throughout the record.


                                              2
untimely his motion to represent himself so that he could bring his own motion for new
trial at the sentencing hearing.
       We conclude the court erred in denying Onley’s motion for self-representation.
We also conclude the court erred in imposing parole revocation restitution fines. We
affirm in all other respects.
                           PROCEDURAL BACKGROUND
       In a second amended information, defendants were charged with murder
(Pen. Code, § 187, subd. (a)).2 As to each defendant, the information alleged he
committed the murder while engaged in the crimes of robbery and burglary (§ 190.2,
subd. (a)(17)(A)&(G)) (special circumstance allegation). The information further
alleged each defendant committed the murder for the benefit of, at the direction of, and
in association with, a criminal street gang (§ 1192.7, subdivision (c)(28)) (gang
allegation). Finally, the information alleged that a principal personally and intentionally
discharged a firearm in the commission of the murder (§ 12022.53, subdivisions (d) &
(e)(1)) (firearm use allegation).
       Defendants were tried by the same jury. The jury found each defendant guilty of
murder, and found true as to each defendant the special circumstance allegation and the
firearm use allegation. The jury found not true the gang allegation as to each defendant.
       The court sentenced each defendant to a term of life in state prison without the
possibility of parole. The court then vacated the firearm use allegation and ordered each
defendant to pay a $300 parole revocation restitution fine under section 1202.45. As to
each defendant, the court stayed its restitution order.
       Defendants timely appealed.




2
       All undesignated statutory references are to the Penal Code.

                                             3
                            FACTUAL BACKGROUND
The Prosecution’s Case-in-Chief
      1.     The burglary, robbery, and shooting
      In January 2011, Diaz and Onley were living together, and Diaz was dating
Porscha Chambers. On January 22, 2011, Chambers went to Diaz and Onley’s
apartment.3 Ryan Whitmore, whom Diaz had met earlier that day, was also at the
apartment. Diaz, Chambers, and Whitmore decided to go to a party. Diaz drove them
to a gas station, where they met Andrew Todd Cherry. While Diaz and Cherry talked,
Chambers went to a store across the street to buy a bottle of alcohol. Diaz, Chambers,
and Whitmore then went to Cherry’s house to hang out before the party.
      Cherry lived by himself, but he owned a parrot that talked. He sold clothes,
electronics, and marijuana out of his house. When they arrived at Cherry’s house,
Chambers, Diaz, and Whitmore drank alcohol and smoked marijuana, and Whitmore
also smoked Phencyclidine (PCP).
      While at Cherry’s house, Chambers allowed Diaz to use her phone to make
several calls. Diaz became fidgety after using Chambers’ phone. Diaz then asked
Chambers to go to the store to buy some blunts so that they could smoke marijuana.
When Chambers returned about five minutes later, Diaz asked to her to go back outside
to grab something from his car, which was parked near Cherry’s house. When she went
outside, Chambers saw Onley and Moore standing under a tree.
      Chambers then received a call from Onley, who asked for Diaz. Chambers
replied that Diaz was inside Cherry’s house. Onley and Moore then pulled hoods over
their heads and walked toward the house. As Onley and Moore approached the house,
Whitmore was trying to leave through the front door.4 Onley and Moore tried to pull


3
      Chambers also knew Onley and Moore. She testified that she knew Diaz by the
name “Dorian,” Onley by the name “Scrilla,” and Moore by the name “No Good.”
4
      During her cross-examination, Whitmore testified that the men she struggled
with were bald.

                                           4
her inside the house with them, but she broke free. Onley and Moore then entered the
house and closed the front door.
        While Whitmore was outside, she heard what sounded like popping balloons,
firecrackers, or gunshots. She then ran away from Cherry’s house, and Chambers tried
to follow her. Chambers eventually stopped following Whitmore and returned to Diaz’s
car. She then saw Diaz, Onley, and Moore leave the house carrying white bags or
pillowcases that appeared to be stuffed with items. Diaz returned to his car, and Onley
and Moore got into a different car. Diaz and Chambers then went looking for
Whitmore. They found her outside of a nearby church, and Diaz told her to get into his
car.
        Diaz then drove Chambers and Whitmore to a party. Chambers and Whitmore
stayed in the car while Diaz went inside for about 15 minutes. After leaving the party,
Diaz dropped Whitmore off at a house and drove Chambers and himself to a motel
room, where they met Moore who was with an unknown woman. After about
45 minutes, Moore and the woman left the motel room, and Diaz and Chambers stayed
in the room until the next morning.
        After leaving the motel, Chambers told Diaz that she was worried that her
fingerprints would be found inside Cherry’s house. Diaz told her not to worry because
he had “got it already.” During another conversation after they left the motel, Diaz told
Chambers that he had returned to Cherry’s house on January 23, 2011 and found Cherry
lying face-down on the ground. He also told her that “they” had robbed Cherry, that he
had Cherry’s computer, and that “they” had killed Cherry’s bird because it talked too
much.
        2.    The discovery of Cherry’s body
        Before January 22, 2011, Cherry spoke to his family on a daily basis. However,
between the evening of January 22 and the afternoon of January 24, 2011, Cherry did
not speak to or contact any of his family members.
        Cherry spoke to his mother every day; he took her to and from work and called
her at night to check on her. Cherry last spoke to his mother around 8:30 p.m. on


                                            5
January 22, 2011. He also regularly spoke to his sister, brother-in-law, and brother, and
he would often take his daughter to school in the morning.
       Cherry and his family had planned to throw Cherry’s son a birthday party on
Sunday, January 23, 2011. Cherry, however, never showed up to the party or told
anyone that he was not coming. During the morning of January 23, 2011, Cherry’s
mother tried calling him several times, but he never answered his phone. Cherry’s sister
also tried calling him, but he did not answer her calls either. Cherry’s brother went to
Cherry’s house twice that day, but Cherry never answered the door.
       On Monday, January 24, 2011, Cherry was supposed to drive his mother to work
and his daughter to school, but he never contacted either of them. His sister tried calling
him that morning, but he did not answer his phone. His sister, brother-in-law, and
brother then went to his house around noon.
       All doors to Cherry’s house were locked, so Cherry’s brother and brother-in-law
forced open the front door. They found Cherry, non-responsive, lying face down in
a puddle of blood, with his hands tied behind his back and his feet bound by a jump
rope. Cherry had suffered seven gunshot wounds: four to the back of his head, one to
his neck, and two to his legs. Nine expended .22-caliber bullet cartridges were found
near Cherry’s body and throughout his living room. Blood had pooled around Cherry’s
body, and there was blood on the ground in the living room, the kitchen, the hallway to
a bedroom, and near the front door.
       Law enforcement officers found no signs of forced entry at Cherry’s house, aside
from the front door that Cherry’s brother and brother-in-law had forced open. The
inside of the house, however, looked like it had been ransacked. Some of the furniture
in the living room was overturned. A computer cable in the living room had been cut
and the corresponding computer was missing. A dead bird with a broken neck was
found in the kitchen, and some of the bird’s feathers were found in the living room. The
officers also found a large amount of cocaine base, a white powder, a green leafy
substance, and a digital scale in the living room.



                                             6
       Several fingerprints were found throughout the house. A fingerprint that
matched Diaz was found on the frame to the front door, and two prints that matched
Whitmore were found on a mug inside the house. Onley’s and Moore’s fingerprints
were not found at Cherry’s house.
       3.     The investigation
              a.     The time of Cherry’s death
       A coroner began examining the crime scene and Cherry’s body around 6:15 p.m.
on January 24, 2011. Cherry weighed approximately 320 pounds at the time of the
examination. The coroner observed that by the time he started his examination, the
blood that had pooled around Cherry’s body had started to dry and Cherry’s body had
begun to decompose, indicating that Cherry had died between 24 and 48 hours earlier.
       The coroner also compared the ambient temperature of the inside of Cherry’s
house with the temperature of Cherry’s liver. As of 6:45 p.m., the ambient temperature
in Cherry’s house was 69 degrees, and the temperature of Cherry’s liver was 75 degrees
at 6:55 p.m. According to the coroner, the temperature of the human body typically
starts to decrease from 98.6 degrees at a rate of 1.5 degrees per hour after death.
However, environmental factors, such as the temperature of the area in which the body
is located and the weight of the body, can affect the rate at which the body’s
temperature decreases. For example, a large, heavy body will cool down at a much
slower rate than a small, thin body. Although a body’s temperature could decrease
more than 24 degrees over a 24 to 48 hour period, Cherry’s weight and the fact that his
body was lying on carpet could have slowed the rate at which his body’s temperature
decreased.
       The coroner also observed that Cherry’s body was not in rigor mortis at the time
of the examination. According to the coroner, rigor mortis typically sets in about
12 hours after death and completely dissipates about 24 hours after death. When he
conducted his examination, the coroner needed to use very little pressure to break the
stiffness of Cherry’s body, further indicating that Cherry had died at least 24 hours



                                             7
earlier. Based on his observations of the crime scene and Cherry’s body, the coroner
concluded that Cherry died between 24 to 48 hours before his body was examined.
       On January 27, 2011, a medical examiner conducted an autopsy of Cherry’s
body. He concluded that Cherry was killed by the four gunshots to his head. The
medical examiner could not, however, determine an exact time of death. He testified
that it is very difficult to pinpoint a time of death based on a post-mortem examination
of a body. According to the medical examiner, many factors affect the time-of-death
determination, including the condition of the body, the environmental conditions in
which the body was found, and evidence of the last time the victim was seen alive.
Based on his own observations and those made in the coroner’s report, the medical
examiner concluded that Cherry had died between 10 and 48 hours before the time his
body was first examined on January 24, 2011.
               b.    Whitmore’s statements to the police
       On July 19, 2011, Los Angeles Police Detective Young Mun5 detained Whitmore
for questioning about Cherry’s murder. Whitmore’s interview was recorded and played
to the jury.
       Whitmore initially denied knowing who Cherry was or having gone to his house.
However, she eventually told the police that a man and a woman, whom she had met on
January 22, 2011, but whose names she did not know, took her to Cherry’s house to
hang out, drink, smoke, and watch a movie. The man who drove her to Cherry’s house
was driving a gold sports utility vehicle. At some point while she was at Cherry’s
house, she went outside to retrieve her purse. The woman with whom she went to
Cherry’s house was already outside. While they were outside, Whitmore saw two men
walk toward the house. The men tried to pull Whitmore back inside the house, but she
pulled free and stayed outside. She then heard what she thought were gunshots from
inside the house. She became scared and ran to a nearby church. The man and woman
who took Whitmore to Cherry’s house later found her at the church and forced her into


5
       Detective Mun was the prosecution’s lead investigator at trial.

                                            8
the man’s gold sports utility vehicle. They then dropped her off at an unknown
location.
        At the end of her interview, the police showed Whitmore a group of photographs
of different men. She identified Diaz as the man who drove her to Cherry’s house and
forced her into his car after she left the house. On August 15, 2011, Whitmore was
shown another group of photographs and identified Chambers as the woman with whom
she went to Cherry’s house.
              c.     Chambers’ statements to the police
        On August 18, 2011, Chambers and Diaz were arrested together while Diaz was
driving a gold sports utility vehicle. Detective Mun interviewed Chambers about
Cherry’s murder later that day.6 Portions of Chambers’ interview were played for the
jury.
        Most of Chambers’ statements to the police were consistent with the testimony
she later gave at trial. However, there were some differences between her statements to
the police and her testimony. For example, during the beginning of her interview, she
denied knowing what happened to Cherry on the night she went to his house, claiming
that she left his house early because she felt sick and had started to vomit.
        During the interview, Chambers recounted a conversation she had with Diaz the
day after they went to Cherry’s house, in which Diaz described what happened while he
was inside the house with Onley and Moore. She said, “[Diaz] told me that they have
robbed [Cherry] or whatever . . . . [¶] He was like, you don’t know the dude.
No-Good, he said that he think the dude No-Good, shot him or whatever. I’m like how
you don’t know if you shot him or not, he’s like my head was down. I’m like how you
don’t know? It’s a sound, there’s no way that you cannot hear a gunshot, you know I’m
saying, so how you don’t know if he dead or not? He just talking about they hurried up
and made me leave.”




6
        The police later helped Chambers move to a new home.

                                             9
      At the end of the interview, Chambers identified Onley from a photographic
lineup. She told the police that Onley was Diaz’s brother and that he was one of the two
hooded men she saw enter Cherry’s house on the night Cherry was killed. On
September 27, 2011, Chambers identified Moore from a different photographic lineup.
She identified Moore as the man called “No-Good,” and she confirmed that he was the
other man with Onley and Diaz on the night defendants robbed Cherry.
             d.     Electronic evidence
                    i.     Onley’s electronic monitoring device
      In January 2011, Onley was wearing an ankle monitor containing a global
positioning system tracking device that the California Department of Corrections and
Rehabilitation used to track his movements. The monitor was tracking Onley’s
movements on January 22, 2011, the night defendants robbed Cherry, as well as on
January 23, 2011.
      Around 9:07 p.m. on January 22, 2011, Onley was near a tree in front of
Cherry’s house. Onley then moved inside Cherry’s house, where he remained from
9:10 p.m. to 9:17 p.m. Data from Onley’s monitor and two of Cherry’s cell phones
showed that after Onley left Cherry’s house, Onley and Cherry’s phones travelled
together in the same direction for more than an hour, indicating that Onley had taken
Cherry’s phones from the house.
      Data from Onley’s monitor also showed that at around 8:18 p.m. on January 23,
2011, Onley went back to Cherry’s house. Onley remained at Cherry’s house until
8:30 p.m. Around 8:35 p.m., he returned to his own home a few blocks away from
Cherry’s house.
                    ii.    Cell-phone records
      The prosecution also introduced records for the cell phones defendants used
around the time of Cherry’s murder. Although defendants did not use any cell phones
registered in their names, statements from other witnesses established that defendants
had used other people’s phones to communicate with each other before and after they
entered Cherry’s house on January 22, 2011. Chambers testified that she had allowed


                                           10
Diaz to use her cell phone several times on January 22, 2011. Deserie Sherlock, who
was working as a prostitute around the time of Cherry’s murder, testified that a Black
male had stolen her phone sometime between August 2010 and June 2011.
      On January 22, 2011, around the time Moore and Onley were seen at Cherry’s
house, Chambers’ phone received several calls from a phone number registered in
Sherlock’s name. On January 28, 2011, Moore’s roommate received several phone
calls from the phone registered in Sherlock’s name.
      The prosecution’s cell-phone expert testified about the locations of Chambers’
and Sherlock’s phones on the evening of January 22, 2011. At 8:12 p.m., Chambers’
phone communicated with a cell tower located near Cherry’s house, and Sherlock’s
phone communicated with a cell tower located near Moore’s house. Between 8:27 p.m.
and 9:09 p.m., Chambers’ phone continued to communicate with the cell towers located
near Cherry’s house. At 8:29 p.m., Sherlock’s phone began to communicate with cell
towers located near Cherry’s house, and it continued to do so until 9:44 p.m. Data from
Onley’s ankle monitor showed that Onley was moving along the same path as
Sherlock’s phone.7
Defense Evidence
      1.     Cherry’s neighbors
      Defendants introduced the testimony of several of Cherry’s neighbors who either
claimed to have seen Cherry alive, or heard sounds like fireworks or gunshots in the
neighborhood, on January 23, 2011, the day after defendants robbed Cherry. Linda
Page, who lived on Cherry’s street, had grown up with Cherry, his brother, and
defendants. Although Cherry and his brother were twins, she could tell them apart. She
saw Cherry and another woman at a liquor store near Cherry’s house around 11:00 p.m.
on January 23, 2011. Cherry bought her a beer.


7
        The prosecution also introduced the testimony of a gang expert to support the
gang allegations. We do not summarize that evidence because the jury did not reach
a true finding as to the gang allegations, and defendants do not raise any issues for
which that evidence is relevant.

                                           11
        Lucy Gardner was also one of Cherry’s neighbors. She had known Cherry since
he was a teenager. She thought of him like her “son,” and Cherry would often refer to
her as “Momma Lucy.” She also could tell Cherry and his brother apart. She saw
Cherry and another man at a liquor store around 1:00 p.m. or 2:00 p.m. on January 23,
2011. Cherry greeted her and told her that he would see her later. When Gardner
returned home from the liquor store, Cherry pulled up in front of her house and said,
“ ‘Momma, I see you later on. Do you want anything?’ ” She replied no, and Cherry
left. Cherry returned to her house around 8:00 p.m. that night to ask her if she wanted
him to buy her any food.
        Melba Thompson, who lived a few houses away from Cherry, heard fireworks
around 9:30 p.m. or 10:00 p.m. the night before Cherry’s body was found. She did not
hear any firecrackers or gunshots on January 22, 2011. Thompson did not know Cherry
or Chambers, but she did recognize Chambers from the neighborhood. Thompson had
seen Chambers come and go from Cherry’s house on several occasions. She also saw
Chambers ride by Cherry’s house in a car with hydraulics on the morning of January 23,
2011.
        Freddie Williams, another one of Cherry’s neighbors, told the police that he had
seen Cherry in front of Cherry’s house between 10:00 a.m. and 11:00 a.m. on
January 23, 2011.8 Cherry, who was with another man at the time, invited Williams to
his house for a beer.
        2.    Expert testimony
        Diaz called Ronald Markman, a psychiatrist, who testified about the potential
effects of PCP, marijuana, and alcohol on a person’s memory and mental acuity.
Dr. Markman testified that PCP can distort a person’s emotions and ability to think,
perceive, and act. Specifically, PCP can cause a person to suffer hallucinations and

8
        Freddie Williams was unable to testify because he died before trial. His
statements were introduced through Detective Mun’s testimony. Detective Mun
testified that at the time he interviewed Williams shortly after Cherry’s body was
discovered, Williams’ speech was slightly slurred and there were several prescription
medication bottles in Williams’ home.

                                            12
delusional thoughts. PCP can also produce conditions that “mimic” schizophrenia.
Depending on a person’s history of using PCP and the concentration of PCP used on
a particular occasion, the drug can significantly affect that person’s ability to accurately
perceive what is going on around her. Dr. Markman also testified that using marijuana
can negatively affect a person’s short-term memory. Finally, Dr. Markman testified that
drinking a pint of gin could affect a person’s ability to perceive and remember events.
However, he also testified that the extent to which a person’s perception and memory
would be impaired by consuming alcohol on a particular occasion depends on that
person’s history of consuming alcohol. If the person frequently drinks, she will develop
a higher tolerance to alcohol, and the amount of alcohol needed to impair her perception
and memory will increase.
                                      DISCUSSION
       I.     Defendants Were Not Denied Their Right to a Speedy Trial
              1.      Relevant proceedings
       Diaz was arrested on August 18, 2011, Onley was arrested on August 19, 2011,
and Moore was arrested on May 1, 2012. The preliminary hearing was conducted on
December 14 and 17, 2012, and the prosecution filed the original information on
December 31, 2012, charging each defendant with murder. At the time the original
information was filed, the prosecution had yet to decide whether to pursue the death
penalty against defendants. At the arraignment hearing held on December 31, 2012,
Diaz refused to waive time for trial, and each defendant pled not guilty.
       At a hearing on January 10, 2013, the prosecution informed the court that it had
yet to decide whether to pursue the death penalty. Diaz again refused to waive time for
trial. The court then advised Diaz that the prosecution was still deciding whether to
pursue the death penalty, and that if it decided to do so, Diaz’s attorney would need
significant time to prepare for the penalty phase of trial. Diaz responded, “To be honest
with you, your honor, I’ve been locked up 18 months. It’s a very long time for me to be
incarcerated. Everything should have been taken care of by now. It’s been a year and
a half and I’m still waiting.”


                                             13
       The prosecutor then informed the court that the prosecution’s death-penalty
committee needed more time to consider the strength of the prosecution’s case, as well
as the strength of any mitigating evidence, before it could decide whether to pursue the
death penalty. However, she stated that if the case were “rushed” to trial, the
prosecution would pursue the death penalty. Diaz’s counsel informed the court that if
the prosecution did pursue the death penalty and his client did not waive time for trial,
he would be unable to prepare an adequate defense for the penalty phase, and he was
certain that he would render ineffective assistance if the case went to trial within
60 days. He requested that the court grant a continuance despite his client’s refusal to
waive time.
       Moore and Onley then refused to waive time. Onley’s counsel informed the
court that he also would not be able to prepare for a death penalty trial within 60 days.
Over defendants’ objections, the court continued the case to January 29, 2013.
       On January 29, 2013, the prosecution had yet to decide whether to pursue the
death penalty. Moore’s counsel informed the court that he would not be able to prepare
for a death-penalty trial within 60 days and requested that the court continue the case for
a reasonable time. Moore and Diaz waived statutory time, but Onley refused to do so.
The court found good cause to grant a continuance over Onley’s objection.
       On February 28, 2013, the prosecutor stated that the death-penalty evaluation
was almost complete. Moore agreed to waive time, but Diaz and Onley refused to do
so. Onley stated, “Your honor, I’m ready to go forward, whatever they have. If she can
prove it – if they can prove I had anything to do with this, then just prove it.” Counsel
for all three defendants informed the court that they were not ready to proceed to trial.
The court found good cause to continue the case over Diaz’s and Onley’s objections.
       On April 9, 2013, the prosecutor stated that the District Attorney’s Office still
had yet to decide whether to pursue the death penalty, but she believed a decision would
be made soon. Diaz, Onley, and Moore refused to waive time, and Diaz addressed the
court, stating, “I just feel like my rights [have] been violated because I’ve waived time
since I been in superior court. . . . [¶] I’m requesting a federal speedy trial so I can get


                                             14
this over with and get on with my life.” Counsel for all three defendants stated that they
were not prepared to go forward with trial. Moore’s counsel stated that he would not be
prepared for trial until after the prosecution reached a decision concerning the death
penalty. Moore then addressed the court, stating: “When we came to court last time,
she [the prosecutor] said it should be ready by this court date. . . . [¶] . . . It’s, like, I’m
being denied my due process. She told me on the last court date it would be ready — ”
       The court responded, “Yes, but the thing is, it isn’t – if the People are ready,
that’s great . . . . [¶] . . . But it’s whether the defense can prepare their case and
represent their client in an appropriate way, without committing ineffective assistance of
counsel, and almost every counsel here – I think all of them have expressed that if they
were forced to go within the time period, they would be committing [ineffective
assistance], is my understanding.” After Diaz and Moore again expressed concern
about the length of the delay in bringing the case to trial, the court found good cause to
grant a continuance over defendants’ objections.
       On May 23, 2013, the prosecutor informed the court that the death-penalty
committee was scheduled to meet on June 12, 2013, and that a decision should be made
shortly thereafter. The court informed defendants that once the prosecution reached
a decision concerning the death penalty, their attorneys would need additional time to
prepare for trial, even if the prosecution did not pursue the death penalty. Defendants
continued to refuse to waive time. After refusing to waive time, Moore asked the court,
“What is ‘being prepared?’ No motion [has] been prepared. Nothing. For the past four
months, we keep coming back, to no avail.” The court replied that once the prosecution
made its death-penalty determination, defendants’ attorneys would likely begin filing
any necessary motions. The court then found good cause to grant a continuance over
defendants’ objections.
       On June 26, 2013, the prosecution filed an amended information alleging a gang
allegation against each defendant. On June 27, 2013, the prosecution announced that it
would be pursuing sentences of life without the possibility of parole, and not the death
penalty, against defendants. Counsel for Diaz informed the court that he and the rest of


                                               15
defense counsel needed additional time to prepare for trial because, until the prosecution
decided not to pursue the death penalty, they had focused most of their efforts on
persuading the prosecution not to pursue the death penalty and preparing for a possible
penalty phase of trial. The court explained to defendants that their attorneys had spent
a significant amount of time preparing for a possible death-penalty trial, especially the
penalty phase, and, as a result, would need additional time to focus their efforts on the
issue of guilt in a trial that would not involve the death penalty. Defendants pled not
guilty to the gang allegations alleged in the amended complaint, and they continued to
refuse to waive time. Based on defense counsel’s representations that they needed
additional time to prepare for trial, the court found good cause to grant a continuance
over defendants’ objections.
       On August 14, 2013, defendants continued to refuse to waive time. However,
counsel for each defendant informed that court he needed additional time to prepare for
trial. Counsel for Diaz explained that all three attorneys needed more time to “catch up”
on the issue of guilt because they had focused their efforts on a possible penalty phase,
looking for mitigating evidence to present to the prosecution. He stated that the
attorneys also needed additional time to prepare various motions, including severance
and dismissal motions.
       The court indicated that it would continue the case over defendants’ objections
and set a hearing in November 2013, by which time defendants’ attorneys planned to
file any necessary motions. The prosecutor informed the court that she anticipated
being in the middle of a death penalty trial on that date, but she agreed to have another
attorney stand in for her if she was not available. She also informed the court that the
prosecution had recently handed over to defense counsel a large amount of discovery,
which she anticipated would take a significant amount of time to process. The court
again found good cause to grant a continuance over defendants’ objections.
       As of November 4, 2013, defense counsel had yet to file any motions. However,
counsel for Onley told the court that all three attorneys were in the process of preparing
motions to dismiss. Counsel for Onley also informed the court that he had experienced


                                            16
medical issues and counsel for Diaz had lost some members of his family since the last
hearing date. Counsel for Onley assured the court that he would file a motion to dismiss
and any necessary discovery requests in advance of the next hearing. All three
defendants continued to refuse to waive time, and Moore complained that his counsel’s
failure to file any motions or be prepared for trial violated his due process and speedy
trial rights. The court acknowledged Moore’s objection and noted that his attorney had
experienced health issues since the last court date. The court again found good cause to
grant a continuance over defendants’ objections.
        On January 22, 2014, counsel for Onley filed a motion for a continuance. The
court conducted a hearing on January 24, 2014. Counsel for all three defendants
explained that they needed more time to prepare for trial and to draft motions.
Defendants again refused to waive time, and the court found good cause to grant
a continuance over their objections. The court set a trial date for April 28, 2014.
        On March 21, 2014, counsel for Diaz filed a motion to dismiss under
section 995. Counsel for Onley and counsel for Moore did not file their own motions,
but joined in Diaz’s motion. In a hearing held outside defendants’ presence, the court
stated that it had expected defense counsel to file their motions before March 21, 2014.
The court set a hearing on defendants’ motion to dismiss for April 28, 2014, the first
day of trial.
        On April 28, 2014, the prosecution filed a second amended information. That
same day, the court heard and denied Diaz’s motion to dismiss, ruled on other oral
motions raised by defendants, and began jury selection. A jury was sworn on May 1,
2014.
                2.   Defendants’ federal speedy trial rights were not violated
        “The state and federal Constitutions guarantee a defendant facing criminal
charges the right to a speedy trial. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.)
This right protects an accused from facing an unduly lengthy period in which criminal
charges are pending.” (People v. Hajjaj (2010) 50 Cal.4th 1184, 1193 (Hajjaj).)



                                             17
A defendant’s federal right to a speedy trial is triggered by arrest or the filing of an
official accusation. (People v. Martinez (2000) 22 Cal.4th 750, 755.)
       In determining whether a defendant’s federal speedy trial right was violated,
courts weigh four factors: (1) the length of the delay; (2) the reason for the delay;
(3) the defendant’s assertion of his right; and (4) prejudice to the defendant. (Barker v.
Wingo (1972) 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (Barker); see also
People v. Lomax (2010) 49 Cal.4th 530, 558 (Lomax).) “None of these four factors is
‘either a necessary or sufficient condition to the finding of a deprivation of the right of
speedy trial. Rather, they are related factors and must be considered together with such
other circumstances as may be relevant. In sum, these factors have no talismanic
qualities; courts must still engage in a difficult and sensitive balancing process.’
[Citation]. The burden of demonstrating a speedy trial violation under Barker’s
multifactor test lies with the defendant.” (People v. Williams (2013) 58 Cal.4th 197,
233 (Williams).) We address the four Barker factors in turn.
                      a.     Length of the delay
       An analysis of the length of the delay involves a two-part inquiry. (Williams,
supra, 58 Cal.4th at p. 234.) To trigger a speedy trial analysis, the defendant must
demonstrate that the delay was “presumptively prejudicial.” (Ibid.) Typically, a pretrial
delay is presumptively prejudicial if it approaches, or exceeds, one year. (See ibid.) If
the defendant makes a showing that the delay was presumptively prejudicial, we then
look at the actual length of the delay. (Ibid.) The longer the delay stretches beyond the
“bare minimum” needed to trigger judicial review of the claim, the more likely it is that
the delay actually prejudiced the defendant. (Ibid.) In other words, “ ‘the presumption
that pretrial delay has prejudiced the accused intensifies over time.’ [Citation.]” (Ibid.)
However, “[i]n a complex case, delay will weigh less heavily against the state because
the significance of the delay ‘is necessarily dependent upon the peculiar circumstances
of the case’ and because ‘the delay that can be tolerated for an ordinary street crime is
considerably less than for a serious . . . charge.’ [Citation.]” (Ibid.)



                                             18
       The parties do not dispute that the delays of nearly three years between the time
Diaz and Onley were arrested and trial began, and nearly two years between the time
Moore was arrested and trial began, were presumptively prejudicial. However, that
does not mean that defendants were actually prejudiced by the delay. As noted, longer
delays generally are tolerated in complex cases. (See Williams, supra, 58 Cal.4th at
p. 234.) Certainly, defendants’ case was complex. It involved three defendants charged
with murder, where the prosecution seriously weighed the possibility of pursuing the
death penalty against each defendant. In addition, the investigation of the crime was
complicated, as there were no eyewitnesses to Cherry’s murder, but there was
a substantial amount of electronic evidence that the prosecution relied on to connect
defendants to the crime, most of which was contained in voluminous cell-phone records
that were difficult to interpret.
                      b.      Reason for the delay
       Next, we look to the reason for the delay and who was responsible for causing it.
(See Williams, supra, 58 Cal.4th at p. 233.) “ ‘A deliberate attempt to delay the trial in
order to hamper the defense should be weighted heavily against the government.
A more neutral reason such as negligence or overcrowded courts should be weighted
less heavily but nevertheless should be considered since the ultimate responsibility for
such circumstances must rest with the government rather than with the defendant.
Finally, a valid reason, such as a missing witness, should serve to justify appropriate
delay.’ [Citation.]” (Id. at p. 239.) As a general rule, delays sought by defense counsel
are attributable to their clients. (Id. at p. 245.) Thus, delays requested by defense
counsel, even if made over the defendant’s objection, are ordinarily attributable to the
defendant. (Id. at p. 246.) However, this rule is not absolute. (Id. at p. 247.) Delay
resulting from a systemic “ ‘ “breakdown in the public defender system,” [citation],
could be charged to the State.’ [Citation.]” (Ibid.)
       Here, the cause of the delay is attributable to both the prosecution and the
defense. Throughout the six months after the first information was filed, the
prosecution was deliberating about whether to pursue the death penalty. This portion of


                                            19
the delay is attributable to the prosecution. However, the six-month delay ultimately
worked in defendants’ favor because it allowed defense counsel the opportunity to
present mitigating evidence to the prosecution, after which the prosecution ultimately
decided against pursuing the death penalty. (See Lomax, supra, 49 Cal.4th at p. 554
[some of the delay caused by the prosecution deliberating about whether to pursue the
death penalty “was for defendant’s benefit, because the committee gave defendant an
opportunity to submit mitigating evidence and seek a lesser penalty”].)
        Defendants also complain that the prosecution was responsible for a one-month
delay between October and November 2013, because the prosecutor was in trial on
a different case. However, during that one-month period, none of defendants’ attorneys
indicated that they were ready to proceed to trial, and the prosecutor’s absence did not
delay the filing or disposition of any motions. In fact, during that period, defendants’
attorneys continued to represent to the court that they needed additional time to prepare
for trial.
        The ten-month delay after the prosecution decided against pursuing the death
penalty is attributable to defense counsel. After the prosecution announced its decision,
all three defense attorneys informed the court that they were not prepared to go to trial
because they had devoted nearly all of their time up to that point looking for evidence
that would mitigate against pursuing the death penalty and preparing for a possible
penalty phase of trial. Although defendants’ attorneys continued to regularly request
continuances over their clients’ refusals to waive time after the prosecution made its
decision, they did so because they had been unable to devote meaningful time to prepare
for the issues concerning guilt while the prosecution was deliberating about the death
penalty.
        Defendants acknowledge the general rule that defense counsel’s delay is
attributable to the defendant. (See Williams, supra, 58 Cal.4th at p. 246.) However,
they argue that they should not be saddled with the delay caused by their attorneys,
claiming their attorneys did not act diligently in preparing for trial. They explain that
the fact that their attorneys failed to file any pretrial motions until shortly before voir


                                              20
dire demonstrates that their attorneys failed to prepare for trial in a timely manner.
While defendants’ attorneys were not expedient in preparing for trial, there is nothing in
the record to show that their delay resulted from a systemic breakdown in the public
defender system. (See id. at pp. 241, 248-249 [there must be evidence identifying
systemic or institutional problems, and not just evidence of problems with an individual
attorney, to shift the charge for the delay from the defendant to the state].) Without
such a showing, defendants must be charged with the delay caused by their attorneys.
(Id. at p. 249.)
                      c.     Assertion of the right to a speedy trial
       “ ‘The defendant’s assertion of his speedy trial right . . . is entitled to strong
evidentiary weight in determining whether the defendant is being deprived of the right.’
[Citation.]” (Williams, supra, 58 Cal.4th at pp. 237-238.) The focus for this factor
“ ‘is on the surrounding circumstances, such as the timeliness, persistence, and sincerity
of the objections, the reasons for the acquiescence, whether the accused was represented
by counsel, the accused’s pretrial conduct . . . , and so forth. [Citation.] The totality of
the accused’s responses to the delay is indicative of whether he or she actually wanted
a speedy trial.’ [Citation.]” (Id. at p. 238.) “ ‘Although a criminal defendant may not
be deprived of a speedy trial because the prosecution—or the defense—is lazy or
indifferent, or because the prosecution seeks to harass the defendant rather than bring
him fairly to justice, a criminal defendant may not juggle his constitutional rights in an
attempt to evade prosecution. He may not demand a speedy trial and demand adequate
representation, and, by the simple expedient of refusing to cooperate with his attorney,
force a trial court to choose between the two demands, in the hope that a reviewing
court will find that the trial court has made the wrong choice.’ [Citation.]” (Lomax,
supra, 49 Cal.4th at p. 556.)
       The People do not contest that defendants repeatedly, consistently, and sincerely
asserted their right to a speedy trial throughout most of the pretrial proceedings. From
April 9, 2013, until trial began in April 2014, defendants refused to waive time at every
pretrial proceeding. In addition, defendants were very vocal about their desire to


                                              21
proceed to trial, regularly informing the court that they were willing to proceed to trial
without their attorneys’ assistance because they were tired of waiting in custody.
However, as we discuss below, when considered with all of the other factors, this factor
does not establish a speedy trial violation.
                      d.     Prejudice
       Whether a defendant suffered prejudice as a result of the delay must be assessed
in light of the following interests: “ ‘(i) to prevent oppressive pretrial incarceration;
(ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that
the defense will be impaired.’ [Citation.]” (Williams, supra, 58 Cal.4th at p. 235.) Of
these interests, “the most serious is the last, because the inability of a defendant
adequately to prepare his case skews the fairness of the entire system. If witnesses die
or disappear during a delay, the prejudice is obvious. There is also prejudice if defense
witnesses are unable to recall accurately events of the distant past. Loss of memory,
however, is not always reflected in the record because what has been forgotten can
rarely be shown.” (Barker, supra, 407 U.S. at p. 514.)
       Defendants argue that they were prejudiced by the delay in bringing their case to
trial because they were subject to anxiety as a result of prolonged incarceration, and
because they lost exculpatory evidence while their case was pending trial. While we do
not disagree that periods of pretrial incarceration of nearly two and three years would
cause serious stress and anxiety for a defendant, the degree to which a specific period of
delay prejudices the defendant is dependent on the reason for the delay. (See Williams,
supra, 58 Cal.4th at pp. 237-238.) As we already discussed, defendants’ case was
complex, and for nearly two years after Diaz and Onley were arrested, or six months
after the first information was filed, the prosecution was considering pursuing the death
penalty. Assigned to a potential death penalty case, defense counsel needed to devote
substantial time and resources to the penalty issue, which necessarily detracted from
their ability to prepare for the issues of guilt. Accordingly, once the prosecution
decided not to pursue the death penalty, a decision that heavily benefitted defendants,



                                               22
defendants’ attorneys essentially needed to start anew in their preparation for trial, since
they had, to that point, been unable to focus on the issues concerning guilt.
       As for the loss of exculpatory evidence, defendants contend that the pretrial
death of Freddie Williams, who told the police that he had seen Cherry alive on the day
after defendants robbed him, precluded them from calling a witness who could help
establish a crucial element of their defense--i.e., that someone other than defendants
killed Cherry. The record is unclear, however, when Williams died. During the
prosecution’s case in chief, the prosecution’s lead investigator, Detective Mun, testified
that Williams had passed away before trial. Defendants point to no portion of the
record, however, that shows when Williams passed away. Accordingly, they have not
demonstrated that had their case been brought to trial earlier, Williams would have been
able to testify. (See Williams, supra, 58 Cal.4th at p. 236 [a defendant must show that
the delay caused the prejudice].)
       In any event, defendants were not prejudiced by their inability to call Williams as
a witness. The facts to which Williams would have testified were cumulative of the
facts that Cherry’s other neighbors--Gardner, Thompson, and Page--had testified to,
namely that Cherry had been seen alive in his neighborhood the day after the
prosecution claimed he had been killed. In addition, the jury heard Williams’
statements to the police in which he described seeing Cherry alive on the day after
defendants robbed him. Although the prosecution attacked Williams’ credibility by
highlighting his alleged use of alcohol and prescription drugs, Williams’ statements
were ultimately corroborated by the testimony of Gardner, Thompson, and Page.
       Finally, defendants contend that they were prejudiced by the delay because the
memories of several defense and prosecution witnesses appeared to have faded since the
time Cherry was murdered. They do not, however, explain what evidence was lost as
a result of the witnesses’ fading memories, aside from claiming that the testimony of
some witnesses could have been called into question due to “occasional failures of
recollection.” Such a claim is not sufficient to establish prejudice. (See Williams,
supra, 58 Cal.4th at p. 236 [vague and unspecific claims of prejudice are insufficient to


                                             23
establish a speedy trial violation; the defendant must specifically identify “what
testimony might have been lost or distorted as a result of the delay in this case”].)
                     e.     Balance of the factors
       On balance, we conclude defendants’ federal speedy trial rights were not violated
by the delay between when they were arrested and the time trial began. Although
defendants regularly and consistently invoked their speedy trial rights by refusing to
waive time throughout pretrial proceedings, there was good cause for the court to grant
their attorneys’ requests for continuances. Defendants’ case was complex, and for about
six months, the prosecution deliberated over whether to pursue the death penalty. In
addition, most of the delay is attributable to defendants’ attorneys. Before the
prosecution reached its decision to not pursue the death penalty, defendants’ attorneys
were understandably focusing most of their attention and efforts on producing
mitigating evidence and preparing for a possible penalty phase of trial. After the
prosecution announced that it would not pursue the death penalty, defendants’ attorneys
needed a substantial amount of time to catch up on the issues relating to guilt, which
they were unable to devote meaningful time to until the prosecution reached its penalty
decision. The need for defendants’ attorneys to prepare defenses concerning the issue
of guilt outweighed any prejudice defendants may have suffered by the delay.
              3.     Defendants’ state speedy trial rights were not violated
       Article I, section 15, of the California Constitution also guarantees a criminal
defendant the right to a speedy trial. (Hajjaj, supra, 50 Cal.4th at p. 1193.)
Section 1382 implements that right. (Ibid.) Under section 1382, a defendant must be
brought to trial within 60 days of his arraignment on an information, unless he waives
the 60-day period or the court finds good cause to continue the trial beyond that period.
(Id. at p. 1194.) If the defendant is not brought to trial within the 60-day period and he
either does not waive time or good cause for a continuance is not shown, the court must
dismiss the action. (§ 1382, subd. (a); Hajjaj, supra, 50 Cal.4th at p. 1193.)
       The court has broad discretion to determine whether good cause exists to
continue the trial, and we will not disturb the court’s finding of good cause unless there


                                            24
has been an abuse of discretion. (Hajjaj, supra, 50 Cal.4th at pp. 1197-1198.)
“ ‘[A] number of factors are relevant to a determination of good cause: (1) the nature
and strength of the justification for the delay, (2) the duration of the delay, and (3) the
prejudice to either the defendant or the prosecution that is likely to result from the delay.
[Citations.]’ ” (Id. at p. 1197.) Good cause exists when the delay is caused by the
defendant or occurs for the defendant’s benefit. (Id. at p. 1198.) It also exists when
there has been an unexpected illness or unanticipated unavailability of counsel. (Ibid.)
       A defendant seeking post-conviction relief for a violation of his speedy trial right
must demonstrate that he was prejudiced by the delay. (Lomax, supra, 49 Cal.4th at
pp. 556-557.) In evaluating prejudice, we “ ‘ “weigh the effect of the delay in bringing
the defendant to trial or the fairness of the subsequent trial itself.” ’- [Citation.]” (Id. at
p. 557.)
       For similar reasons to those discussed above, we conclude the trial court acted
within its discretion under section 1382 in finding good cause existed to continue
defendants’ case over their objections. Again, the delay in bringing defendants to trial
worked largely to their benefit. The period of delay before the prosecution announced
that it would not pursue the death penalty provided defendants’ attorneys the
opportunity to present mitigating evidence to the prosecution. This delay worked to
defendants’ benefit because the prosecution decided to seek a lesser penalty. The delay
after the prosecution announced its penalty decision also worked in defendants’ favor,
since that period allowed defendants’ attorneys to prepare defenses to the prosecution’s
theories of guilt.
       Defendants also have failed to demonstrate they were prejudiced by the delay.
Although Williams died before trial, it is unclear when he died. Accordingly,
defendants cannot show that if not for the delay, Williams would have been able to
testify. In any event, defendants were not prejudiced by Williams’ unavailability,
because his statements to the police were heard by the jury, and those statements were
cumulative of the testimony of Gardner, Thompson, and Page.



                                              25
       II.    Defendants’ Right to be Present Was Not Violated9
       Defendants next contend the trial court violated their constitutional and statutory
right to be present at all critical stages of a criminal trial when it conducted
17 proceedings outside their presence. “ ‘Under the Sixth Amendment, a defendant has
the right to be personally present at any proceeding in which his appearance is necessary
to prevent “interference with [his] opportunity for effective cross-examination.” ’
[Citations.] ” (People v. Blacksher (2011) 52 Cal.4th 769, 799 (Blacksher).) Due
process guarantees a defendant’s presence at any stage that is critical to the outcome of
trial and where the defendant’s presence would contribute to the fairness of the
procedure. (Ibid.) The right to be present guaranteed by the California Constitution is
coextensive with the federal due process right. (Ibid.; see also Cal. Const., art. I, § 15)
Neither the federal Constitution, nor state law, requires the defendant’s “ ‘personal
appearance at proceedings where his presence bears no reasonable, substantial relation
to his opportunity to defend the charges against him. [Citations.]’ [Citations.]”
(Blacksher, supra, 52 Cal.4th at p. 799.) A defendant bears the burden of demonstrating
that his absence prejudiced him or deprived him of a fair trial. (Ibid.)
       Two of the 17 proceedings conducted outside defendants’ presence took place
before trial. On March 21, 2014, Diaz’s counsel filed a motion to dismiss the
information under section 995. The court held a hearing that same day. The court
acknowledged that counsel for Diaz had filed the motion to dismiss, and it set a hearing
on the motion for April 28, 2014, the same day voir dire was scheduled to begin.
Onley’s counsel advised the court that he was scheduled to be in trial on April 17, 2014,
but that he would likely be finished with that trial by April 28, 2014. The prosecutor
advised the court that she would be out of the office on vacation from March 22, 2014
until April 14, 2014. The court made no rulings at the March 21, 2014 hearing, and the



9
      Onley raised the issue in his opening brief. Moore joined in Onley’s argument
through his supplemental brief, and Diaz joined in Onley’s argument through his
opening brief.

                                             26
court and counsel discussed no issues besides the scheduling of the hearing on Diaz’s
motion to dismiss.
       On April 28, 2014, before starting voir dire and outside defendants’ presence, the
court discussed discovery issues with counsel for Diaz and counsel for Onley. Onley’s
and Diaz’s attorneys complained that they had received untimely discovery of certain
cell-phone records, and they opposed the prosecution’s plan to call a witness whose
testimony would help establish that one of the defendants had used the witness’s cell
phone in connection with Cherry’s murder. However, the court did not make any
rulings concerning these issues. Rather, the court stated that it would allow time for the
court and the parties to consider the issues further. After a short recess, defendants were
brought into the courtroom and the court ruled on a number of motions filed by
defendants, including Diaz’s motion to dismiss filed on March 21, 2014. After another
short recess, the court began voir dire with defendants present.
       Defendants contend their presence was required at the March 21 and April 28,
2014 proceedings because they would have learned “significant information which
[they] could have used to convince the court of the validity of [their] speedy trial
claim[s].” Specifically, they argue they would have learned about their attorneys’ lack
of preparation for trial and commitments to other cases, which they could have cited in
support of their speedy trial claims. Defendants cannot demonstrate they were
prejudiced by their absence from these proceedings because, as we have already
discussed, their speedy trial rights were not violated by the court’s granting of
continuances to allow their attorney’s more time to prepare for trial. Defendants do not
claim that their absence from these two proceedings affected the outcome of trial or
deprived them of a fair trial in any other way.
       The other 15 proceedings conducted outside defendants’ presence were held
during trial. These proceedings involved the admissibility of certain evidence,
including which portions of the recording of Chambers’ interview with the police could
be admitted; discovery issues; the scheduling of witness testimony; the allowable scope
of certain witnesses’ testimony; the allowable scope of the attorneys’ examination of


                                            27
certain witnesses; the dismissal of a juror due to a death in the juror’s family; the
applicability of certain jury instructions; and an inappropriate comment included in an
email Diaz’s attorney sent to the prosecutor. All of these proceedings concerned
“procedural, evidentiary, and housekeeping matters” for which defendants were not
required to be present. (See People v. Carrasco (2014) 59 Cal.4th 924, 959; People v.
Lynch (2010) 50 Cal.4th 693, 745-746 (Lynch) [defendant’s presence not required at
discussion of jury selection procedures], abrogated on other grounds by People v.
McKinnon (2011) 52 Cal.4th 610; People v. Kelly (2007) 42 Cal.4th 763, 781-782
[defendant’s presence not required when a prospective juror was questioned and
ultimately excused for cause]; People v. Box (2000) 23 Cal.4th 1153, 1191-1192
[defendant’s presence not required during discussion of whether defense counsel’s
questioning of a certain witness rendered other evidence admissible], disapproved of on
other grounds in People v. Martinez (2010) 47 Cal.4th 911; People v. Waidla (2000)
22 Cal.4th 690, 741-743 (Waidla) [defendant’s presence not required during discussion
of jury instructions].) In any event, defendants make no attempt to explain how their
presence at these 15 proceedings would have affected the result of their trial. Indeed, in
his opening brief, Onley admits that it is uncertain what impact, if any, his appearance at
these hearings would have had on the outcome of the trial. Moore and Diaz also make
no attempt to explain what impact their appearances at these hearings would have had
on the outcome of their trial. We conclude defendants have not met their burden of
demonstrating they were prejudiced by not appearing at any of the proceedings from
which they were absent. (See Blacksher, supra, 52 Cal.4th at p. 799.)
       III.   The Trial Court Properly Admitted Diaz’s Out-of-Court Statements
       Moore and Onley contend several of Diaz’s out-of-court statements introduced
through Chambers’ testimony violated their Sixth Amendment right of confrontation
because those statements implicated them in Cherry’s murder. Moore and Onley also
contend the court erred in admitting Diaz’s statements implicating them in Cherry’s
murder because those statements were inadmissible hearsay. Specifically, they argue



                                             28
the statements were not sufficiently reliable or specifically disserving of Diaz’s penal
interest to be admissible under Evidence Code section 1230.
               1.     Relevant proceedings
       While Chambers was testifying about a conversation she had with Diaz after they
left Cherry’s house, the prosecutor asked her whether Diaz said anything about a bird.
Moore’s counsel objected on hearsay and Sixth Amendment grounds. He argued that
Chambers’ response would constitute inadmissible hearsay and improperly implicate
Moore as a participant in the crime. He asserted that the jury would know that any
plural pronoun used by Chambers would refer to Moore and Onley, since they were the
only other people inside Cherry’s house with Diaz. The court overruled the objection,
stating: “It doesn’t matter. It’s still being offered. This isn’t an Aranda/Bruton issue
because he’s speaking not to the police or an agent of the police[;] he’s speaking to his
girlfriend, if you will.”
       When questioning resumed, the prosecutor again asked Chambers if Diaz had
mentioned anything about what he and the other defendants had done to Cherry’s bird.
Chambers responded that Diaz said, “they killed the bird, too.” The prosecutor then
asked Chambers what Diaz specifically said about the bird, and Chambers responded,
“That they killed the bird because the bird talked too much.”
       The prosecutor then asked Chambers if Diaz had said that “he went back to the
house the next morning following the evening when you were all there[.]” Chambers
responded, “Yes . . . . He said he went back. But he couldn’t have went back because
we was together.” The prosecutor then asked Chambers if she made the following
statement to the police: “ ‘But he said that when he went back the next morning that
[Cherry] was face down. I was, like, did you check to see if he was alive or anything?
He said no, I just picked up his stuff and came back out.’ ” Chambers confirmed that
she made the statement.
       The prosecutor also asked Chambers if Diaz had told her that “they had robbed”
Cherry? Chambers responded, “Yes.”



                                            29
       Later at trial, the prosecution sought to introduce portions of the recording of
Chambers’ August 18, 2011 interview with the police. Among the portions of the
interview the prosecution sought to introduce was Chambers’ description of Diaz’s
statement that he thought Moore, or “No Good,” shot Cherry. Moore’s counsel
objected to that portion of the interview, arguing it would violate Moore’s right of
confrontation. The prosecutor argued, and the court agreed, that the statements were
admissible under the Sixth Amendment because they were nontestimonial.
       Before Chambers’ interview was played, Moore’s counsel again objected to the
portion of the interview quoted above. He argued that the statement was inadmissible
because it did not incriminate Diaz as an aider and abettor to Cherry’s murder, but
rather exposed him to substantially less criminal liability as an accessory after-the-fact
to the murder. The court disagreed, finding the statement fell within Evidence Code
section 1230’s hearsay exception for declarations against penal interest. The court
stated, “What is being stated [by Diaz to Chambers], if the statement is to be believed,
he’s admitting being present and things happening . . . . ” Chambers’ interview was
later played for the jury.
              2.      Diaz’s out-of-court statements do not implicate Moore’s
                      and Onley’s right of confrontation

       Moore and Onley argue the admission of Diaz’s out-of-court statements violated
their Sixth Amendment right of confrontation, relying on Crawford v. Washington
(2004) 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (Crawford), as well as People v.
Aranda (1965) 63 Cal.2d 518 (Aranda) and Bruton v. United States (1968) 391 U.S.
123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (Bruton) (together, Aranda/Bruton). Specifically,
they argue their right of confrontation was violated because Diaz could not be
compelled to testify and his statements could not be tested through cross-examination.
We disagree. The trial court correctly found that Diaz’s statements did not implicate
Moore’s and Onley’s right of confrontation because those statements were
nontestimonial and outside the scope of the Sixth Amendment.



                                            30
       In Bruton, the United States Supreme Court held that the admission of
a codefendant’s out-of-court confession to a law enforcement officer that implicated the
defendant in a joint trial violated the defendant’s Sixth Amendment right of
confrontation because the codefendant could not be compelled to testify. (Supra,
391 U.S. at pp. 127-128.) In reaching its conclusion, the court emphasized that the
confession at issue was clearly inadmissible against the defendant as hearsay and that no
recognized exception to the hearsay rules applied. (Id. at p. 128, fn. 3.) However, the
court expressly declined to address whether admission of a codefendant’s out-of-court
statement that incriminates another defendant would implicate that defendant’s right of
confrontation where the statement falls within a recognized exception to the hearsay
rules. (Ibid., fn. 3.) In Aranda, a case decided before Bruton, the California Supreme
Court reached a similar conclusion on similar facts.10 (Aranda, supra, 63 Cal.2d at
p. 530.) Under the Aranda/Bruton line of cases, to admit a codefendant’s out-of-court
statement that implicates another defendant in the same trial, the prosecution must edit
the statement in a manner that will not allow the jury to infer that it implicates the
non-declarant defendant. (See Fletcher, supra, 13 Cal.4th at pp. 468-469.)
       In Crawford, the United States Supreme Court significantly altered the analysis
under the Sixth Amendment’s confrontation clause, holding that the clause applies only
to out-of-court statements that are “testimonial.” (Crawford, supra, 541 U.S. at p. 51;
see also People v. Geier (2007) 41 Cal.4th 555, 597.) The Court declined to precisely
define what constitutes “testimony,” but observed that it “is typically ‘[a] solemn
declaration or affirmation made for the purpose of establishing or proving some fact.’
[Citation.]” (Crawford, supra, at p. 51, 68.)
       Since Crawford was decided, a number of decisions of the California Courts of
Appeal have concluded that the Aranda/Bruton line of cases do not apply to


10
       The holding in Aranda has since been abrogated by the “truth-in-evidence”
provision of Proposition 8 (Cal. Const., art. I, § 28, subd. (d)) to the extent it excluded
relevant evidence that would be admissible under the federal constitution. (See People
v. Fletcher (1996) 13 Cal.4th 451, 465 (Fletcher).)

                                             31
a codefendant’s out-of-court statements implicating another codefendant if those
statements are nontestimonial. (See e.g., People v. Arceo (2011) 195 Cal.App.4th 556,
571; People v. Arauz (2012) 210 Cal.App.4th 1394, 1401; see also People v. Cervantes
(2004) 118 Cal.App.4th 162, 171-174.) Those courts agree that because the rule
derived from Aranda/Bruton is concerned with protecting the non-declarant defendant’s
right of confrontation, the rule has no application where the out-of-court statement is
nontestimonial, since such evidence does not implicate the Sixth Amendment. (See
Arceo, supra, 195 Cal.App.4th at p. 571; Arauz, supra, 210 Cal.App.4th at p. 1401; see
also Cervantes, supra, 118 Cal.App.4th at pp. 171-174 [because codefendant’s out of
court statement implicating other defendants was nontestimonial, traditional rules of
hearsay, and not the Sixth Amendment, governed the statement’s admissibility].)
A number of federal courts have reached the same conclusion. (See e.g., United States
v. Johnson (6th Cir. 2009) 581 F.3d 320, 326 [“Because it is premised on the
Confrontation Clause, the Bruton rule, like the Confrontation Clause itself, does not
apply to nontestimonial statements”]; United States v. Figueroa-Cartagena
(1st Cir. 2010) 612 F.3d 69, 85 [because Bruton’s analysis is premised on the
presumption that the defendant who is implicated by his codefendant’s out-of-court
statement has a Sixth Amendment right to confront an adverse witness, Bruton does not
apply if the codefendant’s statement is nontestimonial].)
       We agree that the Aranda/Bruton rule does not apply where a codefendant’s
out-of-court statement is nontestimonial, since the Sixth Amendment applies only to
testimonial statements.11 (See Crawford, supra, 541 U.S. at p. 51.) Accordingly, we
focus our attention on whether Diaz’s statements to Chambers are testimonial.


11
        Moore and Onley contend that the Aranda/Bruton rule still applies to
a codefendant’s nontestimonial out-of-court statement, citing People v. Hajek and Vo
(2014) 58 Cal.4th 1144 and People v. Garcia (2008) 168 Cal.App.4th 261. In Garcia,
which was decided before Arceo and Arauz, the court acknowledged that whether the
Aranda/Bruton rule applies only to testimonial out-of-court statements was an
“unsettled question,” but it declined to reach the issue. (Garcia, supra, 168 Cal.App.4th
at p. 282, fn. 12.) Garcia therefore does not stand for the proposition that the

                                            32
       As noted, the United States Supreme Court in Crawford did not precisely define
what constitutes testimonial evidence. (Crawford, supra, 541 U.S. at p. 68.) The court
did observe, however, that testimony is typically the type of statement made “under
circumstances which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.” (Id. at p. 52.) This includes “prior
testimony at a preliminary hearing, before a grand jury, or at a former trial; and
[statements made during] police interrogations.” (Id. at p. 68.) Statements made to
friends, acquaintances, or family members, on the other hand, are generally
nontestimonial. (See People v. Gutierrez (2009) 45 Cal.4th 789, 813 (Gutierrez) [casual
remarks to an acquaintance are nontestimonial under Crawford]; People v. Griffin
(2004) 33 Cal.4th 536, 579, fn. 13 (Griffin) [declarant’s out-of-court statement made to
friend at school was nontestimonial under Crawford], overruled on other grounds in
People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32 (Riccardi); Cervantes, supra,
118 Cal.App.4th at pp. 173-174.)
       We find that Diaz’s out-of-court statements to Chambers were nontestimonial.
At the time Diaz made the statements, Chambers was his girlfriend, and there is nothing
in the record to indicate that he would have expected Chambers to later relay the
statements to law enforcement or testify about them at trial. (See Cervantes, supra,




Aranda/Bruton line of cases continues to apply to nontestimonial out-of-court
statements following Crawford. (See People v. McGraw-Hill Companies, Inc. (2014)
228 Cal.App.4th 1382, 1390 [“An opinion is not authority for propositions not
considered”].) In Hajek, the California Supreme Court held that the admission of
a codefendant’s nontestimonial statement that incriminated the defendant did not violate
Crawford or the rule derived from Aranda and Bruton. (Hajek, supra, 58 Cal.4th at
pp. 1203-1204.) However, the court’s analysis of the statement under Aranda and
Bruton was confined to a single paragraph in which the court did not specifically
address whether nontestimonial out-of-court statements are subject to the rule. (See
Hajek, supra, at p. 1204.) Therefore, Hajek also does not stand for the proposition that
the Aranda/Bruton line of cases continues to apply to nontestimonial out-of-court
statements. (See McGraw-Hill Companies, Inc., supra, 228 Cal.App.4th at p. 1390.)


                                             33
118 Cal.App.4th at pp. 173-174.) Accordingly, the statements do not trigger Moore’s
and Onley’s Sixth Amendment right of confrontation.
              3.     The trial court properly admitted Diaz’s statements
                     as declarations against penal interest12

       Evidence Code section 123013 allows a party to introduce an out-of-court
statement for its truth if the statement was against the declarant’s penal interest at the
time it was made. (People v. Geier, supra, 41 Cal.4th at p. 587.) “ ‘There is no litmus
test for the determination of whether a statement is trustworthy and falls within the
declaration against interest exception. The trial court must look to the totality of the
circumstances in which the statement was made, whether the declarant spoke from
personal knowledge, the possible motivation of the declarant, what was actually said by
the declarant and anything else relevant to the inquiry. [Citations.]’ [Citation.]”
(Arauz, supra, 210 Cal.App.4th at p. 1400.) “[A] hearsay statement ‘which is in part
inculpatory and in part exculpatory (e.g., one which admits some complicity but places
the major responsibility on others) does not meet the test of trustworthiness and is thus
inadmissible.’ [Citation.]” (People v. Duarte (2000) 24 Cal.4th 603, 612.)
“ ‘[W]hether a statement is self-inculpatory or not can only be determined by viewing it
in context.’ [Citation.]” (Ibid.) We review the trial court’s decision to admit an out of
court statement as a declaration against penal interest for abuse of discretion. (People v.
McCurdy (2014) 59 Cal.4th 1063, 1110.)


12
        Moore raised the argument in his opening brief, and Onley filed a supplemental
brief joining in Moore’s argument.
13
       Evidence Code section 1230 provides in its entirety: “Evidence of a statement
by a declarant having sufficient knowledge of the subject is not made inadmissible by
the hearsay rule if the declarant is unavailable as a witness and the statement, when
made, was so far contrary to the declarant’s pecuniary or proprietary interest, or so far
subjected him to the risk of civil or criminal liability, or so far tended to render invalid
a claim by him against another, or created such a risk of making him an object of hatred,
ridicule, or social disgrace in the community, that a reasonable man in his position
would not have made the statement unless he believed it to be true.”

                                             34
       Moore and Onley contend that Diaz’s statements about the robbery were not
specifically disserving of Diaz’s penal interest because Chambers testified that Diaz had
said “they” robbed Cherry and killed his bird. Moore and Onley interpret the word
“they” in Chambers’ testimony to mean that Diaz told her that Moore and Onley, and
not Diaz, participated in the robbery.
       Looking at the context in which Diaz’s statements were made, we disagree with
Moore and Onley’s interpretation of the word “they” and conclude the trial court did not
abuse its discretion in finding Diaz’s statements incriminated not only Moore and
Onley, but also Diaz. Chambers testified that she saw Onley and Moore enter Cherry’s
house shortly after Diaz instructed her to go outside. While Chambers was outside,
sounds like gunshots were heard coming from the area of Cherry’s house. Shortly
thereafter, Chambers saw Diaz, Moore, and Onley walk out of Cherry’s house together,
each carrying a bag or pillow case that appeared to be filled with items. Diaz and
Chambers then got in the same car and drove away together. When viewed in this
context, it is clear Diaz was aware that Chambers knew he was inside Cherry’s house
when defendants robbed and killed Cherry. Accordingly, when he told Chambers that
“they” had robbed Cherry and killed his bird, he confirmed his participation in those
crimes.
       Moore and Onley also contend Diaz’s statements that Diaz thought Moore shot
Cherry and that Onley and Moore “made [him] leave” Cherry’s house should have been
excluded because they were self-serving--i.e., Diaz had tried to deflect the blame for
Cherry’s murder. We disagree. Although Diaz told Chambers that Moore, and not
Diaz, had shot Cherry, that does not mean the statement was exculpatory or self-serving.
Again, when viewed in the context of the other evidence, Diaz’s statements exposed
him to the same liability as Moore and Onley. When Diaz made the statement to
Chambers, he knew that she was aware he had participated in the robbery of Cherry. By
telling Chambers that one of his co-participants had shot Cherry during the robbery,
Diaz admitted to liability for felony-murder. Accordingly, a reasonable person would
not have made that statement unless he knew that it was true.


                                           35
       We also conclude that Diaz’s statements to Chambers were reliable and
trustworthy. Diaz made the statements in confidence to his girlfriend. There is nothing
in the record to indicate that he was aware any investigation into Cherry’s murder had
begun, or that Cherry’s body had even been discovered, by the time he made the
statements. (People v. Greenberger (1997) 58 Cal.App.4th 298, 335 [in determining the
trustworthiness of statements, “the least reliable circumstance is one in which the
declarant has been arrested and attempts to improve his situation with the police by
deflecting criminal responsibility onto others” and “the most reliable circumstance is
one in which the conversation occurs between friends in a noncoercive setting that
fosters uninhibited disclosures”].)
       IV.    The Trial Court Did Not Err in Allowing the Prosecution to Play
              Portions of Chambers’ Recorded Police Interview to the Jury14

       Defendants contend the court erred in allowing the prosecution to play portions
of Chambers’ interview with the police for the jury. Specifically, defendants assert that
the statements contained in the interview did not qualify as prior consistent statements
under Evidence Code sections 791 and 1236 because Chambers had developed a motive
to fabricate details about Cherry’s murder before the interview, and because defendants
did not elicit inconsistent statements from Chambers to attack her credibility.
              1.     Relevant proceedings
       During opening statements, defense counsel suggested that Chambers repeatedly
had changed her recollection of events and fabricated details about Cherry’s murder to
protect her own interests. For example, counsel for Diaz alleged that during her
August 18, 2011 interview with the police, Chambers realized that she could be
criminally prosecuted for Cherry’s murder, causing her to “immediately break down”
and start “spilling stuff.” Counsel for Diaz also asserted that Chambers’ version of
events surrounding Cherry’s murder improved each time she spoke to the police.

14
      Moore raised the issue in his opening brief. Onley joined in Moore’s argument
through his supplemental brief, and Diaz joined in Moore’s argument through his
opening brief.

                                            36
Finally, counsel for Diaz told the jury that Chambers had an incentive to cooperate with
the prosecution because the prosecution had helped her relocate.
       Counsel for Onley also asserted during opening statements that Chambers
continued to change the details surrounding Cherry’s murder to support the
prosecution’s theory as the case progressed toward trial. He stated, “Ms. Chambers
gives a story that gets her out of trouble, and then comes to court -- actually, gives the
story again, and the story gets better, and then comes to court and the story gets better.
And then we’ll come here, and we expect that the story will get better, both because
she’s changing it and she has more practice and experience from the witness stand.”
       Before defendants finished cross-examining Chambers, Onley filed a motion to
exclude Chambers’ entire August 18, 2011 interview with the police, arguing the
interview was inadmissible under Evidence Code sections 352, 791, 1235 and 1236. He
argued that the interview was not admissible as a prior consistent or inconsistent
statement, since Chambers had yet to be impeached by defendants or the prosecution.
Onley also filed a list of supplemental objections, in which he objected to specific
portions of the interview. Onley identified the portions of the interview he was
objecting to by the line and page number of the interview transcript, stating that he
objected to those portions on “other relevance and hearsay grounds, [Evidence Code
section] 352, asked and answered, and cumulative.”
       The court conducted a hearing on Onley’s motion. It rejected Onley’s argument
that the entire interview was inadmissible, finding counsel for Diaz’s and counsel for
Onley’s remarks about Chambers’ credibility, potential bias, and motivation to fabricate
testimony during opening statements opened the door for portions of the interview to be
introduced as prior consistent statements under Evidence Code sections 791 and 1236.
However, the court ruled that the prosecution could not play the admissible portions of
the interview until after defendants cross-examined Chambers.
       The court then ruled on Onley’s specific objections to the interview. The court
sustained several of Onley’s objections and allowed the prosecution to play the



                                             37
remaining portions of Chambers’ interview for the jury. After the court ruled on
Onley’s objections, Moore joined in Onley’s motion to exclude Chambers’ interview.
       After Chambers finished testifying, counsel for Onley again objected to the
prosecution playing portions of the interview to the jury. The court again overruled
Onley’s objections.
              2.      Analysis
       Under Evidence Code sections 791 and 1236, a witness’s consistent out-of-court
statements are admissible for their truth if they are offered “(1) after an inconsistent
statement is admitted to attack the testifying witness’s credibility, where the consistent
statement was made before the inconsistent statement, or (2) when there is an express or
implied charge that the witness’s testimony recently was fabricated or influenced by
bias or improper motive, and the statement was made prior to the fabrication, bias, or
improper motive.” (Riccardi, supra, 54 Cal.4th at p. 802; Evid. Code, § 791
[delineating the two circumstances when prior consistent statements may be admitted];
Evid. Code, § 1236 [prior consistent statements are not made inadmissible by the
hearsay rule if they are offered in compliance with Evidence Code section 791].)
       The trial court found that the portions of Chambers’ interview played for the jury
were admissible under Evidence Code sections 791 and 1236 because, during opening
statements, defendants had stated Chambers fabricated testimony about the events
surrounding Cherry’s murder. (See Evid. Code, § 791, subd. (b).) Defendants do not
contest that they alleged Chambers fabricated testimony, but contend that her
motivation to fabricate testimony arose before speaking to the police during the
interview. They argue that when Chambers was arrested for murder prior to the
interview, she would have become aware that she was a suspect in the investigation of
Cherry’s death. From that point on, she would have had a motive to fabricate details
about Cherry’s murder that incriminated defendants and minimized her own culpability.
Because Chambers made the statements after she was arrested and had a motive to lie,
defendants argue that no part of her interview was admissible as a prior consistent
statement. (See Evid. Code, § 1236, subd. (b); see also People v. Coleman (1969)


                                             38
71 Cal.2d 1159, 1166, overruled on other grounds by Garcia v. Superior Court (1997)
14 Cal.4th 953.)
       A prior consistent statement must have been made before a charged motivation to
lie developed. (See Riccardi, supra, 54 Cal.4th at p. 802.) However, in cases where
more than one motivation to lie is charged, the prior consistent statement is admissible
so long as it was made before “any one or more of the biases or motives that, according
to the opposing party’s express or implied charge, may have influenced the witness’s
testimony.” (People v. Hayes (1990) 52 Cal.3d 577, 609; People v. Jones (2003)
30 Cal.4th 1084, 1106-1107 (Jones).)
       Jones is directly on point. In that case, the prosecution introduced a prior
consistent statement made by a witness to the police to rehabilitate the witness’s
credibility after the defendant presented evidence of the witness’s favorable plea
bargain. (Jones, supra, 30 Cal.4th at p. 1106.) The defendant argued the statement was
inadmissible because the witness had developed a motive to lie after he was first
contacted by the police about the defendant’s crime, which occurred before he made the
statement. (Ibid.) The prosecution did not dispute that the witness could have had
a motive to lie after he was contacted by the police, but argued the witness’s statement
nevertheless was admissible because it was made before another one of the grounds the
defendant claimed had motivated the witness to lie developed, namely entering into
a plea bargain with the prosecution. (Ibid.)
       The California Supreme Court upheld the admission of the witness’s prior
consistent statement. (Jones, supra, 30 Cal.4th at p. 1107.) The court observed that
“the focus under Evidence Code section 791 is the specific agreement or other
inducement suggested by cross-examination as supporting the witness’s improper
motive.” (Id. at p. 1107.) Because the statement was made before at least one of the
grounds that defendant alleged had motivated the witness to lie had developed, the
statement was admissible as a prior consistent statement. (Ibid.)
       Similar circumstances to those in Jones are present here. During opening
statements and Chambers’ cross-examination, defendants attacked Chambers’


                                            39
credibility by charging that she had at least two motivations to lie: the first arising after
she was arrested in connection with Cherry’s murder on August 18, 2011; and the
second arising after she received assistance from the police to relocate. While
Chambers’ arrest occurred before her interview, she did not receive assistance to
relocate until after the interview. Accordingly, any motivation Chambers had to lie
based on receiving support from the police to relocate would not have developed until
after the interview. (See Jones, supra, 30 Cal.4th at pp. 1106-1107.) Thus, the trial
court did not err in allowing the prosecution to play portions of Chambers’ police
interview under Evidence Code sections 791 and 1236, since that interview occurred
before one of the grounds for fabrication charged by defendants had developed. (See
Jones, supra, 30 Cal.4th at p. 1107.)
       V.     The Trial Court Did Not Err in Excluding Third-Party
              Culpability Evidence15

       Defendants next contend the court erred in excluding proposed testimony from
Thompson, Cherry’s neighbor, that she saw two bald-headed males and Chambers drive
by Cherry’s house on the morning of January 23, 2011. They argue the testimony was
exculpatory and could have raised a reasonable doubt as to their guilt because it
supported their theory that someone else killed Cherry. Specifically, they argue that had
the evidence been admitted, the jury could have found that the two bald-headed males
were preparing to murder Cherry later that day.
              1.      Relevant proceedings
       After Thompson testified, counsel for Diaz requested to call her back to the stand
to elicit additional testimony that he had not previously been aware she could provide.
Thompson had apparently seen Chambers and two bald-headed men drive by Cherry’s
house in a car with hydraulics on the morning of January 23, 2011. Counsel for Diaz
argued that the testimony was significant because it could establish that the two men

15
      Moore raised the issue in his opening brief. Onley joined in Moore’s argument
through his supplemental brief, and Diaz joined in Moore’s argument through his
opening brief.

                                             40
were “casing” the house to murder Cherry later that day. He argued that based on
Thompson’s proposed testimony, the jury could find that someone other than defendants
murdered Cherry on January 23, 2011. Onley’s counsel joined in the request to admit
Thompson’s testimony, arguing that the evidence was relevant to the issue of whether
defendants murdered Cherry.
         The prosecutor argued that Thompson’s testimony should be excluded. She
noted that Thompson did not observe the men stop or park their car in front of Cherry’s
house, or see them carrying, or driving with, any weapons. The court denied the
request, calling defendants’ theory that the two men were “casing” Cherry’s house
a “long stretch.” The court found that the testimony would not establish anything more
than that someone other than defendants had a “mere opportunity and motive” to
murder Cherry, and, as a result, would not raise a reasonable doubt as to defendants’
guilt.
                2.      Legal principles
         To be admissible, third-party evidence does not need to establish a “substantial
proof of a probability” that someone other than the defendant committed the crime.
(People v. Adams (2004) 115 Cal.App.4th 243, 252 (Adams).) Rather, the evidence
need only be capable of raising a reasonable doubt about the defendant’s guilt. (Ibid.)
This does not mean, however, that any evidence, no matter how remote, must be
admitted to show a third party’s possible culpability. (Ibid.) “ ‘[E]vidence of mere
motive or opportunity to commit the crime in another person, without more, will not
suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or
circumstantial evidence linking the third person to the actual perpetration of the crime.’
[Citations.]” (Ibid.)
         In determining whether to admit third-party culpability evidence, the trial court
must conduct a two-part test: first, it must determine whether the evidence could raise
a reasonable doubt as to the defendant’s guilt; second, it must determine whether the
evidence is more probative than prejudicial under Evidence Code section 352. (Adams,



                                             41
supra, 115 Cal.App.4th at p. 252.) We review the trial court’s determination to exclude
third-party culpability evidence for abuse of discretion. (Ibid.)
              3.     Analysis
       The court did not abuse its discretion in excluding Thompson’s proposed
testimony. Her testimony only would have shown that two bald-headed men and
Chambers had driven past Cherry’s house the day after defendants robbed him.
Thompson did not identify the men, and there is nothing in the record to suggest she
saw them engage in any suspicious activity. Thompson did not see the men stop in
front of Cherry’s house or drive by Cherry’s house several times, and she did not see
them carrying weapons. Although Whitmore had testified that she believed the two
men whom she struggled with at Cherry’s house were bald, there is no indication that
those were the same two men Thompson saw drive by Cherry’s house. At most,
Thompson’s testimony could have established that the two men who drove by Cherry’s
house on the morning of January 23, 2011 had an opportunity to murder Cherry insofar
as they were in Cherry’s neighborhood, but that is not sufficient to render her testimony
admissible as third-party culpability evidence. (See Adams, supra, 115 Cal.App.4th at
p. 252.)
       VI.    The Trial Court Did Not Err in Allowing the Prosecution’s
              Cell-Phone Expert to Testify16

       Defendants contend the court erred in failing to exclude the testimony of the
prosecution’s cell-phone expert because the prosecution produced the slides that the
expert intended to rely on only a day before the expert testified.
              1.     Relevant proceedings
       On May 9, 2014, during the prosecution’s case-in-chief, counsel for Diaz filed
a motion raising several alleged discovery violations by the prosecution. He
complained that the prosecution had waited until the first day of voir dire to produce
a witness list and about 700 pages of witness interview transcripts. He also complained

16
      Diaz raised the issue in his opening brief. Moore and Onley joined in Diaz’s
argument through their supplemental briefs.

                                            42
that the prosecution had yet to provide defendants with the qualifications and training
for its cell-phone expert, and that the prosecution did not produce two slides that the
expert intended to use while testifying about the records for the cell phones used in
connection with Cherry’s murder until May 8, 2014, the day before the prosecution
intended to call the expert as a witness.
       The prosecutor replied that defendants had received all of the information
contained in the expert’s slides more than a year before trial began. Counsel for Diaz
acknowledged that the information represented in the slides was contained in the
cell-phone records defendants had received more than a year before trial, but he
complained that the records were virtually impossible to decipher without the expert’s
slides because the records contained thousands of phone numbers with no information
identifying the numbers’ subscribers.
       The court then asked counsel for Diaz why he or the other defense attorneys had
never sought the prosecution’s assistance in deciphering the records before trial.
Counsel for Diaz responded that he did not become aware that one of the numbers
belonged to Desiree Sherlock, who’s phone had been stolen by Moore and later used by
him in connection with Cherry’s murder, until the first day of voir dire, when the
prosecution turned over a transcript of the interview in which she identified her phone
number. Counsel for Diaz acknowledged, however, that the prosecution had turned
over the recording of Sherlock’s interview before trial, but he complained that he had
had difficulty understanding the interview until he received the transcript. The court
responded, “the problem is you had this information. If you couldn’t decipher it, as
I said it before, you should have brought it to the court’s attention, brought it to the
D.A.’s attention, said ‘what does this mean?’ You all announced ready for trial. That is
where we stand at this point. But to say – [¶] I was under the impression that you’re
coming in here this morning and saying ‘at 6:30 last night, I received new discovery,’
and now you’re bringing in a fact that you’ve had this discovery, but you’ve never
known – never been directed by the D.A. what exactly it meant, where to look, and how
[the prosecution was] going to use it.”


                                             43
       After the parties and the court discussed further the extent to which the
information from the cell-phone records was summarized in the expert’s slides, counsel
for Diaz withdrew his motion raising the alleged discovery violations by the
prosecution. Neither counsel for Moore, nor counsel for Onley, moved to exclude the
cell-phone expert’s testimony based on a discovery violation.
              2.     Analysis
       As a preliminary matter, defendants failed to preserve for appeal a challenge to
the court’s admission of the prosecution’s cell-phone expert’s testimony. Although
counsel for Diaz filed a motion raising alleged discovery violations by the prosecution
concerning how the prosecution produced its cell-phone evidence, he withdrew that
motion before the court could rule on it. In addition, neither counsel for Onley, nor
counsel for Moore, filed their own discovery motions or raised their own discovery
objections concerning the prosecution’s handling of the cell-phone evidence during
trial. Accordingly, defendants never requested the court to make a ruling on the
admissibility of the cell-phone expert’s testimony. Thus, defendants did not preserve
for appeal any claim that the court erred in admitting the cell-phone expert’s testimony
based on the prosecution’s alleged discovery violations. (See Waidla, supra, 22 Cal.4th
at p. 717 [generally questions relating to the admissibility of evidence will not be
reviewed on appeal in the absence of a specific and timely objection in the trial court on
the ground sought to be urged on appeal].)
       In any event, assuming defendants preserved the issue for appeal, we conclude
the court did not abuse its discretion in admitting the cell-phone expert’s testimony.
The only alleged discovery violation defendants complain of is the prosecution’s
turning over of the expert’s slides that summarized portions of the cell-phone records
shortly before the expert testified.17 Defendants argue they were unable to prepare an


17
       Although Diaz refers to other alleged discovery violations in the summary of the
relevant proceedings in his opening brief, neither Diaz, nor any other defendant, set
forth any argument addressing those alleged violations and any prejudice they may have
caused defendants.

                                             44
adequate defense to the prosecution’s cell-phone evidence because the cell-phone
records were virtually undecipherable until they received the expert’s slides. As
a result, defendants contend the court should have excluded the cell-phone expert’s
testimony.
       Defendants do not dispute, however, that they had received the cell-phone
records that formed the basis for the expert’s slides more than a year before trial. They
also do not contend that the expert’s slides contained new information that the
prosecution had not previously disclosed. Accordingly, defendants do not claim that the
prosecution withheld any evidence that had not previously been disclosed. Rather, they
argue that the prosecution should have turned over the slides at an earlier time because
they were unable to understand the content of the cell-phone records until they received
the slides. Without the slides, defendants claim they could not adequately prepare for
the expert’s cross-examination.
       Defendants essentially argue that the prosecution failed to help them decipher the
cell-phone records in a timely manner. This claim lacks merit. It is well settled that the
prosecution has no duty to assist a defendant’s investigation. (People v. Salazar (2005)
35 Cal.4th 1031, 1049.) “If the material evidence is in a defendant’s possession or is
available to a defendant through the exercise of due diligence, then, at least as far as
evidence is concerned, the defendant has all that is necessary to ensure a fair trial . . . . ”
(Id. at p. 1049.) Defendants obtained the cell-phone records summarized in the expert’s
slides well over a year before the cell-phone expert testified. They therefore had more
than adequate time to review the records, obtain any assistance necessary to decipher
the records, and prepare for any testimony based on the content of those records. Thus,
there was no discovery violation, and the court properly admitted the cell-phone
expert’s testimony.




                                              45
       VII.   The Trial Court Did Not Err in Failing to Strike
              Detective Mun’s Testimony18

       Defendants contend the court erred in failing to strike portions of rebuttal
testimony by Detective Mun concerning a conversation he had with Gardner, one of
Cherry’s neighbors, in the courthouse following Gardner’s testimony. They argue that
because Mun could not produce his notes from that conversation, which he had
reviewed before testifying on rebuttal, the court should have stricken his testimony
under Evidence Code section 771. We conclude any error by the trial court in failing to
strike Mun’s testimony was harmless because Mun did not testify about any details of
the conversation he had with Gardner.
       Mun testified as a rebuttal witness for the prosecution. He had interviewed
Thompson and Gardner after they testified after he discovered that counsel for Diaz had
interviewed the witnesses together during trial. Mun testified about the content of his
interview with Thompson, but he did not testify about the content of his interview with
Gardner. In fact, he testified that he did not know any information about Gardner.
       During cross-examination, counsel for Diaz asked Mun if he had taken notes
during his interview with Gardner. Mun testified that he had taken notes and that he
had shown them to the prosecution before testifying.
       Counsel for Moore then asked Mun if he had used his notes to prepare for his
testimony. Mun testified that he had reviewed his notes and used them to refresh his
recollection. When counsel for Moore asked if he could look at Mun’s notes, Mun
replied that he could not find them. Counsel for Moore then moved to strike Mun’s
testimony concerning his interview with Gardner under Evidence Code section 771.19
The court denied Moore’s motion.

18
      Diaz raised the issue in his opening brief. Moore and Onley joined in Diaz’s
argument through their supplemental briefs.
19
       Diaz and Moore also contend the court erred in failing to strike Mun’s testimony
under Evidence Code section 721, which governs the scope of an expert witness’s
cross-examination. Diaz and Moore do not cite to any authority, however, for the

                                            46
       Evidence Code section 771, subdivision (a) provides in relevant part: “[I]f
a witness, either while testifying or prior thereto, uses a writing to refresh his memory
with respect to any matter about which he testifies, such writing must be produced at the
hearing at the request of an adverse party and, unless the writing is so produced, the
testimony of the witness concerning such matter shall be stricken.” Even if we assume
the court should have stricken Mun’s testimony that he had interviewed Gardner,
defendants have failed to demonstrate that they were prejudiced in any way by the
court’s failure to do so because Mun did not testify about any of the details of that
interview.
       Here, defendants argue that it is reasonably probable the jury would have reached
a more favorable verdict had the court stricken Mun’s testimony because Gardner was
a favorable witness to the defense, and the prosecution had attacked her credibility
throughout trial. They assert that had Mun’s notes been produced, their trial counsel
could have impeached Mun’s testimony, which could have bolstered Gardner’s
credibility. Defendants’ arguments lack merit because they do not explain how
reviewing Mun’s notes could have allowed them to impeach him about his interview
with Gardner. Mun never testified about any of the details of his conversation with
Gardner. Accordingly, the prosecution did not elicit any testimony from him that could
have impacted Gardner’s credibility. As a result, there was no reason to impeach Mun
with respect to his testimony concerning his interview with Gardner. For the same
reasons, defendants fail to demonstrate how striking Mun’s testimony would have
affected their ability to bolster Gardner’s credibility at trial.




proposition that Mun’s testimony should have been stricken under Evidence Code
section 721. Accordingly, they have failed to demonstrate that the court committed any
error under that code section. In any event, because they did not object at trial to Mun’s
testimony under Evidence Code section 721, Diaz and Moore have forfeited any claim
of error on that ground. (See Waidla, supra, 22 Cal.4th at p. 717.)

                                               47
       VIII. Sufficient Evidence Supports the Jury’s Finding that
             Defendants Killed Cherry20

       Defendants contend insufficient evidence supports their murder convictions,
arguing the prosecution failed to prove that they killed Cherry. They argue that based
on the testimony of several of Cherry’s neighbors who claimed to have seen and spoken
to Cherry on January 23, 2011, a reasonable jury could not have found Cherry died as
a result of defendants’ robbery and burglary. They also attack the prosecution’s
evidence. They point out that the prosecution failed to produce any definitive medical
evidence establishing that Cherry had died more than 24 hours before his body was
found. They also assert that Chambers and Whitmore, who provided key eyewitness
testimony establishing defendants’ participation in the robbery and murder, were
unreliable. We conclude substantial evidence supports the jury’s finding that Cherry
was killed during the commission of defendants’ robbery and burglary.
       “ ‘When considering a challenge to the sufficiency of the evidence to support
a conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ ” (People v. Avila (2009) 46 Cal.4th 680,
701.) In determining whether there was sufficient evidence to support a jury’s finding,
we must determine whether, after reviewing the entire record in a light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. (Ibid.) We neither reweigh evidence nor
reevaluate the credibility of witnesses. (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
“ ‘This standard applies whether direct or circumstantial evidence is involved.’ ”
(Avila, supra, 46 Cal.4th at p. 701.)
       “The standard of review is the same in cases in which the People rely mainly on
circumstantial evidence.” (People v. Cravens (2012) 53 Cal.4th 500, 507.) “Although

20
      Diaz raised the issue in his opening brief. Moore and Onley joined in Diaz’s
argument through their supplemental briefs.

                                            48
it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is
susceptible of two interpretations, one of which suggests guilt and the other innocence
[citations], it is the jury, not the appellate court which must be convinced of the
defendant’s guilt beyond a reasonable doubt. [Citations.]” (Id. at pp. 507-508.) “ ‘If
the circumstances reasonably justify the trier of fact’s findings, the opinion of the
reviewing court that the circumstances might also reasonably be reconciled with
a contrary finding does not warrant a reversal of the judgment. [Citations.]’ ” (Id. at
p. 508.) Therefore, before we may set aside the judgment, it must be clear that “ ‘upon
no hypothesis whatever is there sufficient evidence to support it.’ ” (People v. Zamudio
(2008) 43 Cal.4th 327, 357.)
       Although neither the coroner nor the medical examiner could establish an exact
time of death, they both testified that, based on their examination of Cherry’s body and
the conditions in which it was found, Cherry could have died on January 22, 2011, the
night defendants robbed him. The coroner opined that Cherry could have died between
24 and 48 hours before his body was found, and the medical examiner opined that
Cherry died between 10 and 48 hours before his body was found, both establishing
a possible time of death within the time defendants robbed him. Based on this evidence,
the jury reasonably could have concluded that Cherry had died on the evening of
January 22, 2011.
       A finding that Cherry died during defendants’ robbery and burglary is further
supported by Chambers’ and Whitmore’s testimony. Chambers and Whitmore testified
that on the evening of January 22, 2011, less than 48 hours before Cherry’s body was
found, they saw Moore and Onley enter Cherry’s house while Diaz was still inside.
Shortly after Moore and Onley entered the house, Whitmore heard what sounded like
gunshots come from inside Cherry’s house. Shortly after Whitmore heard the gunshots,
Chambers saw Diaz, Moore, and Onley walk out of Cherry’s house together. After the
robbery and burglary, Diaz told Chambers that Moore had shot Cherry. He also told her
that he had returned to Cherry’s house after the robbery, where he found Cherry’s body
lying face down.


                                              49
       Defendants contend that a reasonable jury would not have relied on Chambers’
testimony because she lacked credibility due to her potential involvement in Cherry’s
murder and her willingness to cooperate with the prosecution. This argument is not
persuasive. Chambers was subjected to thorough cross-examination during which
defense counsel questioned her about the truthfulness of her statements and any
motivation she may have had to testify on behalf of the prosecution. In addition, the
jury was properly instructed on how to evaluate a witness’s credibility, a witness’s
statements made prior to trial, and conflicting evidence. In applying these standards, the
jury decided to believe Chambers’ testimony. We will not second guess that decision
on appeal. (See People v. Young (2005) 34 Cal.4th 1149, 1181 [“In deciding the
sufficiency of the evidence, a reviewing court resolves neither credibility issues nor
evidentiary conflicts”].)
       Finally, testimony from members of Cherry’s family supports a finding that
Cherry died on the evening of January 22, 2011. Cherry’s mother testified that she
talked to Cherry every day on the phone; however, the last time she spoke to him was
during the day on January 22, 2011. In addition, Cherry did not attend his son’s
birthday party on January 23, 2011, which he had helped plan and promised to attend.
Cherry also did not respond to any of his sister’s phone calls on January 23, 2011, and
he did not answer the door to his house when his brother came to check on him. In light
of this evidence, the jury reasonably could have concluded Cherry was killed during the
commission of defendants’ robbery and burglary.




                                            50
       IX.    The Felony-Murder Special Circumstance Enhancement Is Not
              Unconstitutionally Vague21

       Moore and Onley contend the felony-murder special circumstance enhancement,
which imposes a sentence of death or life imprisonment without the possibility of parole
for a murder committed during a felony, is unconstitutionally vague. (See § 190.2,
subd. (a)(17).) They argue there is no distinction between the elements necessary to
establish the special circumstance enhancement and the substantive crime of felony
murder, which imposes only a sentence of 25 years to life with possibility of parole in
the absence of a special circumstance finding. Defendants contend that the lack of
distinguishing elements between the enhancement and substantive crime renders the
enhancement unconstitutional because the prosecution may arbitrarily choose to pursue
a sentence of death or life without possibility of parole, rather than a sentence of life
with possibility of parole.
       To withstand a vagueness challenge, a criminal statute must “ ‘ “be definite
enough to provide (1) a standard of conduct for those whose activities are proscribed
and (2) a standard for police enforcement and for ascertainment of guilt.” ’ [Citations.]”
(Williams v. Garcetti (1993) 5 Cal.4th 561, 567.) In other words, a statute “must be
definite enough to provide notice about what conduct is prohibited, and to provide
standards for its application and adjudication to avoid arbitrary and discriminatory
enforcement.” (People v. Andreasen (2013) 214 Cal.App.4th 70, 79-80 (Andreasen).)
       Section 189 codifies the substantive crime of felony murder. It provides that
a person is guilty of first-degree murder if he commits murder while perpetrating, or
attempting to perpetrate, among other enumerated felonies, a robbery or burglary.
(§ 189.) Section 190 establishes the possible sentences for first-degree murder. It

21
      Moore raised the issue in his opening brief. Onley joined in Moore’s argument
through his supplemental brief. In his opening brief, Diaz did not request to join in
Moore’s argument challenging the felony-murder special circumstance enhancement.
Nor did he articulate any reasons why Moore’s argument applies to him. Accordingly,
Diaz has failed to join in Moore’s argument challenging the felony-murder special
circumstance enhancement. (See People v. Bryant (2014) 60 Cal.4th 335, 363.)

                                             51
provides: “Every person guilty of murder in the first degree shall be punished by death,
imprisonment in the state prison for life without the possibility of parole, or
imprisonment in the state prison for a term of 25 years to life.” (§ 190, subd. (a).)
Which of the three possible sentences may be imposed is determined by certain
statutory provisions, including section 190.2, the enhancement statute challenged here.
(See § 190, subd. (a).) The enhancement statute provides in relevant part: “The penalty
for a defendant who is found guilty of murder in the first degree is death or
imprisonment in the state prison for life without the possibility of parole if . . . . [¶] The
murder was committed while the defendant was engaged in, or was an accomplice in,
the commission of, attempted commission of, or the immediate flight after committing,
or attempting to commit . . . . [¶] Robbery . . . . [or] [¶] (G) Burglary in the first or
second degree. . . . ” (§ 190.2, subd. (a)(17)(A)&(G).)
       We reject defendants’ contention that the enhancement is unconstitutionally
vague. Sections 189, 190, and 190.2, subd. (a)(17) provide clear notice to a defendant
of what type of criminal conduct will render him eligible for the death penalty or life
imprisonment without the possibility of parole. (Andreasen, supra, 214 Cal.App.4th at
p. 80.) Specifically, the statutes put a defendant on notice that if he commits a murder
while committing, or attempting to commit, an enumerated felony, he could be
subjected to either of the two enhanced punishments. (Ibid.) Moreover, the fact that the
prosecution has discretion to choose whether to pursue the death penalty, life
imprisonment without the possibility of parole, or an indeterminate term with the
possibility of parole in cases that fall within the enhancement’s scope does not create an
improper risk of arbitrary enforcement of the enhancement. (See Andreasen, supra,
214 Cal.App.4th at p. 80.) Where a statute sufficiently narrows the class of defendants
to which the death penalty applies, as section 190.2 does, no constitutional infirmity is
created by affording the prosecution discretion to determine in which of those cases the
death penalty should be sought. (See People v. Earp (1999) 20 Cal.4th 826, 905.)
       Defendants’ vagueness challenge also fails because there is a distinction between
the felony-murder special circumstance enhancement and the substantive crime of


                                              52
felony murder. The California Supreme Court repeatedly has held that for the special
circumstance enhancement to apply, the prosecution must establish not only that the
murder resulted during the commission, or attempted commission, of an enumerated
felony, but also that the defendant harbored a felonious intent independent of the
murder. (See Riccardi, supra, 54 Cal.4th at pp. 836-837; People v. Davis (2009)
46 Cal.4th 539, 609; People v. Green (1980) 27 Cal.3d 1, 61, abrogated on other
grounds by People v. Martinez (1999) 20 Cal.4th 225; see also Andreasen, supra,
214 Cal.App.4th at p. 81.) In other words, the enhancement does not apply if the
defendant had only the intent to kill, and the underlying felony was “merely ‘incidental
or ancillary to the murder.’ ” (Davis, supra, 46 Cal.4th at p. 609.) Such an independent
felonious intent is not required to establish only the substantive crime of felony murder.
       The distinction between the special circumstance enhancement and the
substantive crime is illustrated by the instructions provided to the jury in this case. The
court instructed the jury with CALJIC 8.81.17 (the enhancement instruction), which
explains what the prosecution must prove to establish the special circumstance
enhancement, and CALJIC 8.21 (the felony murder instruction), which explains what
the prosecution must prove to establish the substantive crime of felony murder. The
enhancement instruction requires the jury to find that the murder “was committed in
order to carry out or advance the commission of Robbery [or Burglary] or to facilitate
the escape therefrom or to avoid detection. In other words, the special
circumstance . . . is not established if the Robbery [or Burglary] or attempted robbery
[or attempted burglary] was merely incidental to the commission of the murder.” The
felony murder instruction, however, does not require such a finding. Rather, it requires
only that the jury find the murder occurred “during the commission or attempted
commission of the crime of robbery or burglary.” Although the felony murder
instruction requires the jury to find defendants had the specific intent to commit robbery
or burglary, it does not require the jury to find that defendants’ intent to commit one of
those crimes was independent of, or not merely incidental to, defendants’ intent to kill
the victim. Accordingly, as applied in this case, the special circumstance enhancement


                                            53
requires additional findings than those required for the substantive crime of felony
murder.
       X.     The Prosecutor Did Not Engage in Misconduct22
       Defendants contend the prosecutor engaged in misconduct when she stated that
Cherry was a devoted father, brother, and son, and that he spoke to members of his
family on a daily basis. They argue the prosecutor’s comments were improper because
they appealed to the jury’s sympathy and emotions by inviting the jury to focus on
Cherry’s close relationship with his elderly mother and decide the issue of guilt based
on Cherry’s “admirable qualities as a son and family man.”
              1.     Relevant proceedings
       Near the beginning of her closing argument, the prosecutor discussed Cherry’s
relationship with his family. She stated, “You learned that [Cherry] was a devoted
father, brother, and son. We heard from his family members how dedicated he was to
his family, how frequently he spoke with them, and what he did for them on a daily
basis.” Onley’s counsel then objected to the prosecutor’s argument on the grounds that
it appealed to the jury’s sympathy.23 The court overruled the objection, and the
prosecutor went on: “He talked to his mother on the phone multiple times per day. Not
only did she testify to that, but when you see the telephone records, you’ll see how
frequently he was in contact with his family.”


22
      Moore raised the issue in his opening brief. Onley joined in Moore’s argument
through his supplemental brief, and Diaz joined in Moore’s argument through his
opening brief.
23
        The People contend Moore forfeited any challenge on appeal to the prosecutor’s
argument because his counsel did not separately object to the argument or join in the
objection raised by Onley’s counsel. We conclude Moore did not forfeit his challenge
to the prosecutor’s argument because any objection by his counsel would have been
futile, given that the court overruled Onley’s objection and the argument objected to
concerned the victim’s character, an issue that affected Onley and Moore equally.
Because Moore’s counsel did not forfeit Moore’s challenge on appeal to the
prosecutor’s argument, we do not need to address Moore’s contention that his counsel
rendered ineffective assistance by failing to preserve the challenge for appeal.

                                           54
       The prosecutor then briefly discussed how Cherry sold clothing, compact discs,
and other items out of his apartment, before returning to the topic of how frequently
Cherry talked to his family members. The prosecutor then talked about the events
surrounding the day on which the prosecution argued Cherry had died. She stated,
“And this particular weekend in question was a very important weekend for [Cherry’s]
family in that they were supposed to have a birthday party for [Cherry’s] son, whom he
loved very much. And according to even a defense witness, he would do anything for
his children. [¶] Now, his behavior dramatically changed on January 22, 2011, because
he was dead, as the evidence will show. The dramatic change in his typical behavior is
seen in the circumstantial evidence. [¶] He had no communication with his family, on
the phone, after 8:12 p.m., nor anyone else, on January 22, 2011. He had two cell
phones, both of which he used actively.” The prosecutor referred to cell-phone
evidence showing that, before his death, Cherry spoke on the phone to his mother
multiple times per day, and that he frequently spoke on the phone to his siblings and his
son. She also referenced cell-phone evidence showing that Cherry had stopped
communicating with his family around the time defendants had entered his apartment.
The prosecutor argued that this evidence helped establish that Cherry was killed on the
night defendants entered his apartment.
              2.     Legal principles
       “ ‘The applicable federal and state standards regarding prosecutorial misconduct
are well established. “ ‘A prosecutor’s . . . intemperate behavior violates the federal
Constitution when it comprises a pattern of conduct “so egregious that it infects the trial
with such unfairness as to make the conviction a denial of due process.” ’ ” [Citations.]
Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is
prosecutorial misconduct under state law only if it involves “ ‘ “the use of deceptive or
reprehensible methods to attempt to persuade either the court or the jury.” ’ ”
[Citation.]’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 819.)
       A prosecutor enjoys wide latitude during closing argument. (People v. Williams
(1997) 16 Cal.4th 153, 221.) Her argument may be vigorous and incorporate


                                            55
appropriate epithets as long as it amounts to fair comment on the evidence, and it may
include reasonable inferences drawn for the evidence. (Ibid.) “[W]hen the claim
focuses upon comments made by the prosecutor before the jury, the question is whether
there is a reasonable likelihood that the jury construed or applied any of the
complained-of remarks in an objectionable fashion. [Citation.]” (People v. Samayoa
(1997) 15 Cal.4th 795, 841.) “ ‘In conducting this inquiry, we “do not lightly infer” that
the jury drew the most damaging rather than the least damaging meaning from the
prosecutor’s statements. [Citation.]’ ” (People v. Brown (2003) 31 Cal.4th 518,
553-554.)
              3.     Analysis
       The prosecutor did not engage in misconduct. Her comments concerning
Cherry’s close relationship and frequent contact with his family members were based on
facts in evidence. The prosecutor has a wide-ranging right to discuss the facts in
evidence, and she is not limited to discussing those facts in “clinical or detached detail.”
(People v. Panah (2005) 35 Cal.4th 395, 463 (Panah).)
       Further, the prosecutor’s comments addressed one of the most important and
contested issues the prosecution needed to establish to prove defendants’ guilt, namely
the date on which Cherry died. Throughout defendants’ trial, the prosecution took the
position that Cherry died on January 22, 2011, the night defendants robbed him and
burglarized his apartment, while defendants took the position that Cherry was still alive
after January 22, 2011, and that someone other than defendants killed him. The
prosecutor commented on Cherry’s relationship with his family and his frequent contact
with his mother and other family members to counter defendants’ theory of when
Cherry died. The prosecutor argued that based on Cherry’s history of contacting his
family members on a daily basis, the evidence that he stopped contacting them on
January 23, 2011 supported the prosecution’s theory that he had been killed on
January 22, 2011. The prosecutor’s comments on Cherry’s familial relationship fell
well within her right “ ‘to fully state [her] views as to what the evidence shows and to
urge whatever conclusion [she] deems proper.’ ” (Panah, supra, 35 Cal.4th at p. 463.)


                                            56
       XI.    The Court Did Not Err When it Advised the Jury that Defendants’
              Case Did Not Involve the Death Penalty24

       Defendants next contend the trial court erred in advising the jury during voir dire
that this case did not involve the death penalty. They argue the advisement was
prejudicial because it advised the jury of the consequences of its verdict, thereby
distracting the jury from its task of determining guilt and relieving the prosecution of its
full burden of proving guilt.
              1.      Relevant proceedings
       Before voir dire, Moore filed a motion in limine seeking an order precluding the
prosecution from advising prospective jurors that this case did not involve the death
penalty. Moore argued such an advisement would improperly encourage jurors selected
to serve on this case to consider the possible punishment that defendants could receive if
found guilty. Before calling the first jury panel, the court denied Moore’s motion. The
court explained its ruling as follows: “Such advisement does not negate or nullify the
jury instructions, that the jury is not [to] consider the subject of penalty or punishment
in any way in rendering any verdict. [¶] The court advises the jury of that because
sometimes jurors do not like to serve on a death penalty case, they’d rather serve on
another type of case where the punishment isn’t, you know, death. [¶] I understand
your argument that, in so many words, and putting it simply, it would make it easier for
a juror to render a verdict if they knew it wasn’t a death penalty case, and I don’t see
that as being the case. It’s just the court advises them so they can determine whether or
not they want to serve on this type of case.”
       Immediately after the first jury panel was brought into the courtroom, the court
stated, “I’ll tell you right off the bat, this is not a death penalty case.” After explaining
the charges to the panel, the court again advised that this case did not involve the death
penalty: “So, as I told you, this is not a death case; because some people don’t like to


24
      Diaz raised the issue in his opening brief. Moore and Onley joined in Diaz’s
argument through their supplemental briefs.

                                              57
sit on death cases, they would rather sit on something else.” The court gave a similar
advisement to the second jury panel called into the courtroom.
       During trial, but before the jury entered deliberations, the court instructed the
jury pursuant to CALJIC 8.83.2: “In your deliberations, the subject of penalty or
punishment is not to be discussed or considered by you. That is a matter which must
not in any way affect your verdict or affect your finding as to the special circumstances
alleged in this case.”
              2.         Analysis
       In People v. Hyde (1985) 166 Cal.App.3d 463 (Hyde), the Fourth District
rejected a similar challenge to the trial court’s advisement that the defendant’s case did
not involve the death penalty. There, the defendant argued that the trial court’s
statement to prospective jurors that the defendant’s case did not involve the death
penalty “ ‘tend[ed] to diminish the jury’s sense of responsibility for its action.’
[Citation.]” (Id. at p. 479.) The Fourth District disagreed and concluded that the trial
court’s statements were “proper and prudent.” (Ibid.) The court explained its reasoning
as follows: “The public commonly understands that in contrast to other criminal cases,
the jury in a death penalty murder case must determine penalty as well as guilt. The
moral and ethical questions surrounding the use of the death penalty have generated
considerable social debate. It is reasonable to anticipate that a significant number of
prospective jurors might question their ability to sit on a jury which potentially would
have to consider imposition of a sentence of death. Not only did the trial judge’s
decision raise and dispose of the issue at the outset save time and unnecessary strain on
potential jurors’ psyches, but it also avoided any possibility that a prospective juror’s
concern about serving on a death penalty case might skew his answers to voir dire
questioning.” (Ibid.)
       The court in Hyde also rejected the contention that advising the jury that the
defendant’s case did not involve the death penalty would encourage the jury to convict
the defendant under a lessened standard of proof. (Hyde, supra, 166 Cal.App.3d at
pp. 479-480.) The court stated, “we think it impossible to contend that a jury charged


                                             58
with trying a murder defendant in a noncapital case is more likely to unfairly convict
because of a diminished ‘sense of responsibility.’ ” (Id. at p. 479.)
       We agree with the analysis in Hyde. A case involving the death penalty raises
unique and sensitive questions about punishment. Not only are jurors in a death penalty
case asked to determine the defendant’s sentence, a task they do not perform in
non-capital cases, but they also are asked to determine whether the defendant should be
put to death. It is not surprising, then, that some prospective jurors in a murder trial
may be reluctant to serve on the case if they believe they will be asked to determine
whether the death penalty should be imposed. Such reluctance may influence some
prospective jurors to shade the truth of their responses to questions asked during
voir dire, which could unnecessarily diminish the prospective jury pool when the case
does not involve the death penalty. We also reject the contention that the trial court’s
advisement encouraged the jury to neglect its duty to carefully weigh the evidence and
apply the appropriate standard of proof in determining the issue of guilt. The court
properly instructed the jury on reasonable doubt and its duty not to consider the issue of
punishment in determining guilt. We presume jurors understand and follow the court’s
instructions. (People v. Johnson (2009) 180 Cal.App.4th 702, 707.) In sum, the court
did not err in advising the jury the case did not involve the death penalty.
       XII.   The Trial Court Properly Inquired into Juror Misconduct25
       Defendants next contend the court failed to conduct an adequate inquiry into
potential juror misconduct after one of the jurors sent a note to the court expressing
concern that another juror was refusing to follow the reasonable doubt standard and
properly weigh the evidence.
              1.     Relevant proceedings
       Two days into the jury’s second round of deliberations, Juror Number 6
submitted a note expressing concern about Juror Number 3’s conduct during

25
      Onley raised the issue in his opening brief. Moore joined in Onley’s argument
through his supplemental brief, and Diaz joined in Onley’s argument through his
opening brief.

                                             59
deliberations.26 The note read: “Juror #3 is not following the law. He is holding the
prosecution to an unreasonable standard of ‘beyond all reasonable doubt.’ He is also
engaging in speculation and conjecture and is considering scenarios for which there is
no evidence.”
       After consulting with counsel, the court called the jury into the courtroom and, in
response to the foreperson’s note, addressed the jury as follows: “Well, ladies and
gentlemen, the burden of proof is beyond a reasonable doubt or beyond all reasonable
doubt. It is not beyond all doubt. It has to be a reasonable doubt. It is not beyond
a shadow of a doubt. So understand that. [¶] And reasonable doubt, I’ll read it to you
again. . . . [¶] Reasonable doubt is defined as follows: It is not a mere possible doubt
because everything relating to human affairs is open to some possible or imaginary
doubt. Because anything is possible. . . . [¶] It is that state of the case which, after the
entire comparison and consideration of the evidence, leaves the minds of the jurors in
that condition that they cannot say that they feel an abiding conviction of the truth of the
charge. [¶] It is important and imperative that you follow 2.90, the standard defined in
this instruction. [¶] Also, you cannot engage in speculation and/or conjecture and/or
imaginary doubt. You cannot consider scenarios for which there is no evidence.
Remember that. You can only consider what actual evidence was presented during the
trial. If there is no evidence about something, you can’t consider that. You’re limited
to what has been presented in terms of the evidence. [¶] Now, if you need further
instruction on anything, the court would be more than happy to entertain any question
that you may propound.”




26
       At the time the court received the note from Juror Number 6, the jury was in its
second round of deliberations. The jury had already deliberated for six days before the
court excused Juror Number 4 for personal reasons. The court replaced her with an
alternate juror and instructed the jury to start the deliberation process anew. The court
received the note from Juror Number 6 about two days into the second round of
deliberations.

                                             60
      After the court addressed the jury, Juror Number 3 spoke up, starting the
following exchange between the court, Juror Number 3, Juror Number 6, and Juror
Number 12:
             Juror No. 3: So I was not consulted on the language of that. I’m
      Juror Number 3. I’m the one that they’re having the problem with. And
      I disagree that I am holding the evidence or the prosecutor to a higher standard.
             The Court:     Okay.
             Juror No. 3: I believe that I have deliberated in good faith and
      that—that—well, there’s more to say, but I don’t think it’s necessary to go into
      a lengthy discussion.
             The Court:     All right. But you can represent to this court that you’ll be
      able to follow the definition of reasonable doubt, all of you?
             Juror No. 3: [No audible response]
             Juror No. 12: I’m sorry. First of all, it was read to him, so he did have an
      opportunity to hear the question before we sent it out. It probably should have
      read “he’s holding the prosecution to a standard of beyond all possible doubt.”
             The Court:     No, that is --
             Juror No. 12: And it’s an unattainable standard.
             Juror No. 3: I specifically disagree with that. [¶] And I actually would
      request that the jury be directed to deliberate rather than just to come to
      a conclusion and then refuse to discuss in detail the evidence or the jury
      instructions.
             The Court:     Well, what I’m going to do is send you all back there,
      because it sounds like you’re still deliberating. [¶] But understand I’ve already
      stated, and I’ll reiterate again, you’re to follow the definition as defined in this
      instruction and nothing more. Understand that. [¶] All right. It sounds like you
      guys are deliberating. [¶] We have another hand, Juror Number 6.
             Juror No. 6: Yes. My concern is that we’re not deliberating. When we
      try and pin our peer down on a particular topic and try and get the question that


                                             61
       he has out of him, then he shifts to another topic. [¶] I’ve been wanting to--he
       has the entire set of jury instructions, with a post-it attached to each one. He has
       a question about each page of the jury instructions, but he won’t tell us what it is.
       Moore’s counsel then requested to approach the bench. The court denied the
request, stating: “We’re not going to engage in a colloquy, at this point, because that is
really getting into the purview of what your functions are. [¶] I’m going to ask you to
return back to the jury room and continue deliberating. [¶] If you have another note to
propound to the court, send it out; if you need further instruction, let me know if that
will be of assistance; if you need further readback, let me know if that will be of
assistance. [¶] Now that you have the definition, I’m going to send you back.”
       The jury was then sent back to the jury room to continue deliberating. About
four hours later, the jury returned its verdicts.
              2.      Legal principles
       Section 1089 permits the trial court to discharge a juror at any time, including
during deliberations, based upon a showing of good cause that the juror is unable to
perform his or her duty. (See People v. Wilson (2008) 43 Cal.4th 1, 25.) A juror’s
refusal to deliberate, or his or her proclivity to reach a verdict without regard to the law
or the evidence, demonstrates an inability to perform his or her duty and constitutes
good cause for dismissal. (People v. Cleveland (2001) 25 Cal.4th 466, 485 (Cleveland);
People v. Williams (2001) 25 Cal.4th 441, 463.) “A refusal to deliberate consists of
a juror’s unwillingness to engage in the deliberative process; that is, he or she will not
participate in discussions with fellow jurors by listening to their views and by
expressing his or her own views. Examples of refusal to deliberate include, but are not
limited to, expressing a fixed conclusion at the beginning of deliberations and refusing
to consider other points of view, refusing to speak to other jurors, and attempting to
separate oneself physically from the remainder of the jury.” (Cleveland, supra,
25 Cal.4th at p. 485.) However, the fact that a juror does not deliberate well, relies on
faulty logic, disagrees with the majority of jurors as to what the evidence shows, or
disagrees with the majority of jurors about how the law should be applied to the facts


                                              62
does not constitute a refusal to deliberate. (Ibid.) Further, a juror’s disagreement about
how deliberations should be conducted does not constitute a refusal to deliberate and is
not a ground for discharge. (Ibid.) “A juror who has participated in deliberations for
a reasonable period of time may not be discharged for refusing to deliberate, simply
because the juror expresses the belief that further discussion will not alter his or her
views.” (Ibid.)
       A trial court possesses substantial discretion in managing the jury’s deliberations
and ensuring the jury reaches a fair and impartial verdict. While the court is obligated
to make a reasonable inquiry once it is alerted to the possibility of juror misconduct
(People v. Barber (2002) 102 Cal.App.4th 145, 150), “the decision whether (and how)
to investigate rests within the sound discretion of the court.” (People v. Engleman
(2002) 28 Cal.4th 436, 442.)
       “[A] trial court’s inquiry into possible grounds for discharge of a deliberating
juror should be as limited in scope as possible, to avoid intruding unnecessarily upon
the sanctity of the jury’s deliberations. The inquiry should focus upon the conduct of
the jurors, rather than upon the content of the deliberations.” (Cleveland, supra,
25 Cal.4th at p. 485.) “[T]he inquiry should cease once the court is satisfied that the
juror at issue is participating in deliberations and has not expressed an intention to
disregard the court’s instructions or otherwise committed misconduct, and that no other
proper ground for discharge exists.” (Ibid.) The court’s inquiry “ ‘must be conducted
with care so as to minimize pressure on legitimate minority jurors.’ ” (People v.
Haskett (1990) 52 Cal.3d 210, 238.)
       In addition, “[a] trial court may ask jurors to continue deliberating when, in the
exercise of its discretion, it finds a ‘reasonable probability’ they will be able to reach
agreement.” (People v. Howard (2008) 42 Cal.4th 1000, 1029.) Whether a “reasonable
probability” exists rests within the court’s discretion, and a court is not required to
accept as final any jurors’ statements that the jury cannot reach a verdict. (People v.
Valdez (2012) 55 Cal.4th 82, 159.) “If any substantial evidence exists to support the



                                             63
trial court’s exercise of its discretion pursuant to section 1089, the court’s action will be
upheld on appeal.” (People v. Bradford (1997) 15 Cal.4th 1229, 1351.)
              3.     Analysis
       Here, the court acted well within its discretion when it ceased its inquiry and
directed the jury to continue deliberating. Based on the statements from Juror
Numbers 3, 6, and 12, the court reasonably could have concluded that a number of
jurors simply disagreed about how deliberations should be conducted. Such a dispute
does not constitute juror misconduct. (See Cleveland, supra, 25 Cal.4th at p. 485.)
       Defendants contend that based on Juror Number 3’s accusation that the rest of
the jury was not properly deliberating, and Juror Number 6’s accusation that Juror
Number 3 was not properly deliberating, the court should have conducted a more
thorough inquiry into potential misconduct. We disagree. The court, and not the
individual jurors, is in the best position to make a legal determination of whether certain
jurors are actually engaging in misconduct or simply disagree about how deliberations
should be conducted. (See People v. McDowell (2012) 54 Cal.4th 395, 418 [if the
jurors’ statements are conflicting and ambiguous, we must accept the trial court’s
determination of the jurors’ true state of mind].) No juror who addressed the court
expressed an intention to refuse to deliberate, disregard the court’s instructions, or
engage in any other form of misconduct. Based on the results of its inquiry, the court
reasonably could have concluded that the jury was still deliberating. (See Bradford,
supra, 15 Cal.4th at p. 1351.) Accordingly, the court did not err by directing the jury to
continue its deliberations without conducting a more thorough inquiry.
       XIII. The Trial Court Abused its Discretion When it Denied
             Onley’s Motion for Self-Representation

       Onley contends the court erred in denying as untimely his motion to represent
himself at the sentencing hearing pursuant to Faretta v. California (1975) 422 U.S. 806
(Faretta motion). Specifically, Onley argues the court abused its discretion in denying
his motion as untimely because the sentencing hearing was the first opportunity he had
to bring his motion after the jury reached its verdict, and he never requested the court to


                                             64
continue the sentencing hearing to allow him to prepare a motion for new trial. He also
argues the court failed to conduct the necessary analysis to determine whether granting
the motion would unnecessarily delay the proceedings. Onley is correct.
       On June 12, 2014, the jury returned its verdicts. The court then set a sentencing
hearing for August 22, 2014.
       At the sentencing hearing, Onley’s counsel asked to be heard on an oral motion
for a new trial, in which Moore’s and Diaz’s counsel indicated they would join. Before
any arguments on the motion for a new trial were made, Onley’s counsel informed the
court that Onley wanted to assert his right to represent himself. The court responded,
“At this point, at the time of sentencing, sir?” Onley confirmed that he wanted to
represent himself. The court then stated, “At this point, the court is making a finding
that it’s untimely, sir.”
       Onley’s counsel then informed the court that Onley wanted to bring his own
motion for a new trial. The court responded, “You have counsel who has done that, sir.
He’s making a motion right now to do that.” Onley replied, “For him to do it orally,
I feel that he won’t touch on the things that I’m asking him to touch on; therefore, I’m
asking to exercise my Faretta rights in order to do my own retrial motion. Because for
him to do it orally – he hasn’t even talked to me since I left trial but one time, and that
was three or four days ago.” The court denied Onley’s request, stating that Onley’s
counsel was prepared to present the motion and that the court would allow him to do so.
Onley’s counsel then argued the motion, which the court denied.
       Under the Sixth and Fourteenth Amendments, a defendant has the right to
represent himself if he is competent to do so and invokes that right voluntarily,
knowingly, and intelligently. (People v. Doolin (2009) 45 Cal.4th 390, 453.) His
request must be timely and unequivocal. (Ibid.) A timely request is one that is made
within a reasonable time before trial, or, if a verdict has already been rendered,
a reasonable time before sentencing. (People v. Windham (1977) 19 Cal.3d 121,
127-128 (Windham); People v. Miller (2007) 153 Cal.App.4th 1015, 1024.) The court



                                             65
must grant a motion for self-representation that is timely, unequivocal, voluntary,
knowing, and intelligent. (Lynch, supra, 50 Cal.4th at p. 721.)
       If the court determines the defendant’s motion for self-representation is untimely,
it must look to the totality of the circumstances to determine whether granting the
motion would delay the proceedings unjustifiably or obstruct the orderly administration
of justice. (Lynch, supra, 50 Cal.4th at pp. 722, 724.) In doing so, the court is required
to consider several factors, including: “the quality of counsel’s representation of the
defendant, the defendant’s prior proclivity to substitute counsel, the reasons for the
request, the length and stage of the proceedings, and the disruption or delay which
might reasonably be expected to follow the granting of such a motion.” (Windham,
supra, 19 Cal.3d at p. 128.) Although it is preferred that the court make a record of its
consideration of these factors (see ibid.), we will affirm the court’s exercise of its
discretion to deny the motion if the record establishes that the court explicitly or
implicitly weighed them. (See People v. Marshall (1996) 13 Cal.4th 799, 828
[affirming the court’s order denying the defendant’s motion for self-representation
because “the record reflects [the court’s] explicit or implicit consideration of each of the
other Windham factors”].)
       Here, the court abused its discretion in denying Onley’s Faretta motion because
there is nothing in the record that indicates the court explicitly or implicitly considered
the Windham factors. The court did not make a record of its analysis of those factors,
aside from stating that the motion was made on the date of the sentencing hearing. In
addition, there is no evidence concerning the length of the delay that would occur if the
court granted Onley’s request. In fact, the court did not inquire into whether Onley
desired a continuance if he were to represent himself on a motion for a new trial, and
Onley did not indicate that he would need a continuance to prepare the motion.
Accordingly, we reverse the court’s order denying Onley’s Faretta motion.




                                             66
          XIV. The Trial Court Erred in Ordering Defendants To Pay a Parole
               Revocation Restitution Fine

          At the sentencing hearing, the trial court ordered each defendant to pay
a $300 parole revocation restitution fine under section 1202.45. As to each defendant,
the court stayed its order until defendant’s parole is revoked. Defendants contend, and
the People agree, that the court erred in ordering defendants to pay a parole revocation
fine because defendants were sentenced to life imprisonment without the possibility of
parole.
          Section 1202.45, subdivision (a) requires the court to assess a parole revocation
restitution fine “[i]in every case where a person is convicted of a crime and his or her
sentence includes a period of parole . . . . ” Because each defendant was sentenced to
a term of imprisonment that does not include a period of parole, the court should not
have ordered each defendant to pay a parole revocation restitution fine. (See People v.
Battle (2011) 198 Cal.App.4th 50, 63.) Accordingly, we direct the court to correct the
sentencing minute orders and abstracts of judgment by striking the orders imposing
parole revocation restitution fines.




                                              67
                                     DISPOSITION
        As to Diaz and Moore, the court is directed to modify their sentencing minute
orders and abstracts of judgment by striking the parole revocation restitution fines. As
modified, their judgments are affirmed.
        As to Onley, his judgment is reversed for the limited purpose of providing him
a new hearing on his Faretta motion. If the court grants Onley’s Faretta motion but
denies his motion for new trial, the court should conduct a new sentencing hearing and
allow Onley to represent himself, if he wishes, at that hearing. If the court denies
Onley’s Faretta motion, Onley’s original sentence and judgment should be reinstated.
Regardless of the outcome of Onley’s Faretta motion, his sentencing minute order and
abstract of judgment should be modified by striking the parole revocation restitution
fine.



        NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                                       LAVIN, J.

WE CONCUR:




        EDMON, P. J.




        ALDRICH, J.




                                            68
