Filed 5/9/13 P. v. Harris CA2/3
Opinion following order recalling remittitur and reinstating appeal
                 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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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,                                                                B222583

         Plaintiff and Respondent,                                        (Los Angeles County
                                                                          Super. Ct. No. BA284216)
         v.

CHRISTOPHER HARRIS et al.,

         Defendants and Appellants.




         APPEAL from judgments of the Superior Court of Los Angeles County,
Charlaine F. Olmedo, Judge. Affirmed.
         Eric R. Larson, under appointment by the Court of Appeal, for Defendant and
Appellant Christopher Harris.
         Mark Shapiro for Defendant and Appellant Kwana Harris.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie A. Miyoshi and
Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

                                             _________________________
       Christopher Harris and Kwana Harris appeal the judgments entered following
their convictions by jury of first degree murder of Eric Alexander. (Pen. Code, § 187.)
Christopher Harris also appeals his conviction by jury of second degree murder of
Kevin Decoud. The jury found Christopher Harris committed these offenses for the
benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)), personally and
intentionally discharged a firearm causing death (Pen. Code, § 12022.53, subd. (d)),
and committed multiple offenses of murder (Pen. Code, § 190.2, subd. (a)(3)).
The jury also convicted Christopher Harris of second degree robbery (Pen. Code,
§ 211) in which he personally used a firearm (Pen. Code, § 12022.53, subd. (b)), and
unlawful possession of a firearm (Pen. Code, § 12021, subd. (a)(1); the jury found both
of these offenses were committed for the benefit of a criminal street gang (Pen. Code,
§ 186.22, subd. (b)(1)).
       On appeal, Christopher Harris contends the trial court erred in admitting into
evidence Kwana Harris’s hearsay statement identifying him as Alexander’s killer and
in failing to instruct the jury that Kwana Harris’s statement required corroboration.
Kwana Harris contends the trial court erred in admitting gang evidence as to her and
her defense counsel rendered ineffective assistance. We reject appellants’ claims of
error and affirm the judgments.
                  FACTS AND PROCEDURAL BACKGROUND
       1. The murder of Eric Alexander.
          a. The Shooting on September 17, 2004.
       On September 17, 2004, Khaled Fleming heard approximately 10 gunshots.
Fleming stepped outside his home and walked toward Sixth Avenue where he saw the
doors of a black SUV close and saw the vehicle leave the scene.
       At 2:34 a.m. on September 17, 2004, Los Angeles Police Officer Winston Lee
received a radio call regarding a shooting in the 4300 block of Sixth Avenue. Upon
arrival, Lee saw a man, later identified as Eric Alexander, lying unconscious. Lee
found eight .22-caliber bullet casings near Alexander. While at the scene, Lee learned
Alexander had died.

                                            2
          Los Angeles Police Detective Stanley Evans found approximately $200 in
Alexander’s jacket and pants and $150 on the ground nearby. Evans found no cell
phone at the scene. Evans inquired of Alexander’s relatives regarding a cell phone
without success.
          A deputy medical examiner testified Alexander sustained nine gunshot wounds,
including two fatal wounds.
                b. The family gathering in San Diego.
          One week after the shooting of Alexander, on or about September 24, 2004,
members of the Harris family gathered in San Diego at the home of James Hardgraves,
the brother-in-law of Christopher and Kwana Harris. The visitors included
Christopher and Kwana Harris, their sister Shanea, Mericca Garner, who is the mother
of a child by Christopher Harris, and Jamie Hardgraves, James Hardgraves’s twin
sister.
          James Hardgraves recalled the visitors arrived in a black Ford Expedition
driven by Kwana Harris. The day the visitors arrived, Kwana Harris told James
Hardgraves there were rumors “going around” that she and Christopher Harris had
killed Alexander, aka Stoney. Kwana Harris said she was present when Alexander
was killed, she kicked him after he was shot and she took his cell phone. Kwana
Harris said she had chirped Alexander to get him to the location and knew before he
arrived he was going to be harmed. Kwana Harris said Christopher Harris killed
Alexander.
          During the visit, James Hardgraves also heard Kwana Harris talking on her cell
phone in chirped phone calls. In one such call, James Hardgraves heard the caller say,
“We know that you killed Stoney, and we know your brother killed Stoney, and we
know you are in San Diego, and we’re coming out there.” Kwana Harris was nervous
and called an individual known as L-Bone.




                                             3
       James Hardgraves admitted he was afraid to testify in this case and was
concerned for the safety of his children and himself. Kwana Harris once told
James Hardgraves not to come to court and he had been threatened by Jerry Anthony,
aka L-Bone, who was carrying a gun at the time. James Hardgraves was relocated
twice by the Los Angeles Police Department.
       James Hardgraves admitted that, at the time of trial, he was on probation for a
misdemeanor involving moral turpitude.
       On cross-examination by Kwana Harris’s counsel, James Hardgraves admitted
he and Kwana Harris were not close. James Hardgraves had been married to
Christopher and Kwana Harris’s sister, Alicia, for six years and they had three
children. Alicia was in a car crash on August 25, 2004, while driving to Los Angeles
to assist Christopher Harris. Alicia died on September 4, 2004, as a result of injuries
sustained in the crash. Alicia had been unfaithful to James Hardgraves with a woman
introduced to her by Kwana Harris. Also, before Alicia died, one of the Harris’s had
been involved in a shooting outside the home of James Hardgraves’s mother. James
Hardgraves conceded “the Harrises were bringing a lot of turmoil and trauma” into his
life and he was not happy with them.
       During the San Diego visit, Kwana Harris and her sister, Shanea, got into a
fight in which Shanea “was throwing knives.” Shanea repeatedly told Kwana Harris,
“You know what you did. You were wrong.” Kwana Harris denied Shanea’s
accusations.
       Jamie Hardgraves, James’s twin sister, was present in her brother’s apartment
when Kwana Harris received chirped phone calls. One call from a woman involved
how much money Kwana Harris had obtained from “Stoney.” Kwana Harris stated it
was not as much money as the caller claimed. The caller also said there was a witness
but Kwana Harris said no one was around when Alexander was killed. The caller also
asked about Alexander’s cell phone and Kwana Harris said she had it.




                                            4
       In a second chirped phone call, Jamie Hardgraves heard a male say he knew
Kwana Harris was in San Diego and he was going to kill her and her mother.
       On cross-examination by Kwana Harris’s counsel, Jamie Hardgraves testified
Kwana Harris regularly drove a silver car and, to her knowledge, the black truck
belonged to Shanea.
              c. Telephone Evidence.
       Sprint Nextel cell phone and direct connection or “chirp” records for
subscribers Eric Alexander and Kwana Harris showed that, on September 17, 2004,
there were several brief telephone calls between them commencing at 1:37 a.m.
The last of these calls was made at 2:27 a.m. The records also showed numerous
direct connect calls were made by Kwana Harris between September 24 and 26, 2004.
       Los Angeles Police Detective Sean Hansen analyzed the telephone records for
the cell phone numbers assigned to Alexander and Kwana Harris for September 17,
2004. With the assistance of a computer program, Hansen plotted the distance
between the cell sites through which the calls had been routed and the scene of the
Alexander shooting.
       2. The shooting of Kevin Decoud.
              a. The shooting; Eddie Gilbert’s identification of Christopher Harris.
       Eddie Gilbert testified that, on January 15, 2004, he and Kevin Decoud were
walking toward 41st Street and Van Ness Avenue when a black Nissan Maxima driven
by Christopher Harris stopped a few feet from them.1 When Christopher Harris asked
where they were from, Gilbert and Decoud yelled, “40 Neighborhood Crip[s].”
As Decoud approached the Nissan to fight, Christopher Harris said he was not there to
fight and fired two shots at Decoud. Christopher Harris also fired twice at Gilbert but
missed.




1
       Eddie Gilbert was declared unavailable due to mental incompetence and his
preliminary hearing testimony was read to the jury.
                                           5
       Decoud died as the result of a gunshot wound to the chest. During an autopsy,
a deputy medical examiner recovered a bullet from Decoud’s body.
       Gilbert recognized Christopher Harris because, in December of 2004,
Christopher Harris robbed Gilbert in the backyard of a residence on Second Avenue.
On that occasion, Christopher Harris approached Gilbert from behind, said, “C.J. This
is 58 Neighborhood,” “fuck 40’s . . . phonies” (disrespecting Rolling 40’s), and “break
yourself,” and placed a gun to Gilbert’s throat. Gilbert surrendered a Yankees cap and
a blue jacket with a dragon on the sleeve and the back.
              b. Arrest of Christopher Harris; recovery of Decoud murder weapon.
       On January 1, 2005, a sheriff’s deputy impounded a vehicle being driven by
Christopher Harris. During an inventory of the contents of the vehicle, the deputy
recovered a nine-millimeter semi-automatic pistol.
       A criminalist testified the bullet recovered during the autopsy of Decoud had
been fired from the firearm found in Christopher Harris’s car.
       3. Investigation.
              a. Search warrant served at the home of Merrica Garner.
       On February 23, 2005, Detective Jason Delacova applied for a search warrant
for the home of Mericca Garner. The items sought in the warrant included a baseball
cap, a jacket with a dragon on it, a handgun and ammunition. The warrant was served
on February 25, 2005.
              b. Garner’s statement to detectives.
       Following service of the warrant, Garner was interviewed at the police station,
first by Detectives Lee and Delacova and then by Detective Evans. Tape recordings of
the interviews were played for the jury. Detective Evans testified that, after he read
Garner her rights, she made a statement and Evans asked her to put it in writing.
While Garner wrote the statement, Evans discovered the tape had run out and put in a
new one. The missing portion of the interview included the reading of Garner’s rights
and the statement in which Garner provided information. After Evans restarted the
tape recorder, he went over Garner’s written statement with her. Garner was not aware

                                            6
the interview was being recorded. Garner was at the police station for approximately
five hours, commencing at 10:00 a.m. She was interviewed for approximately three
and a half hours.
       In the initial interview conducted by Detectives Lee and Delacova, Garner said
Christopher Harris was a member of 48 Neighborhood, which was a small gang
associated with the “40’s,” but indicated the police had him on file as a member of the
60’s. Garner denied Christopher Harris ever told her that he had killed someone.
Delacova advised Garner he had a pretty good case against Christopher Harris for a
crime he committed with a female. Garner denied she was the female and stated the
black Expedition was Shanea’s car. Garner claimed Christopher Harris told her only
that people thought he was responsible for the murder.
       After Detective Evans took over the interview, Evans suggested Garner might
have unwittingly driven Christopher Harris to the scene of a crime and asked if she
knew Eric Alexander, aka “Stoney.” Garner identified a photograph of Alexander as
someone she had seen with Christopher Harris. Garner also identified a picture of
Jerry Anthony, aka “L-Bone.” Garner admitted she had been very friendly with
Kwana Harris, who was also known as “Lady L-Bone,” which suggested “L-Bone”
had brought Kwana Harris into his gang.
       Garner agreed that on September 17, 2004, Kwana Harris and Shanea had a
black SUV and that Kwana Harris was the primary driver of the vehicle. Evans told
Garner he wanted to know if Garner were an accomplice, an accessory or merely a
witness. Evans indicated he was going to present the case to the district attorney for
filing and, if Garner lied to Evans, it would suggest she had been involved in the
crime. Garner denied Christopher Harris spoke to her about what happened to
Alexander. However, he did tell her the “40’s” were after him because they thought
he had killed Alexander. Evans indicated that, at some point, Garner’s lies would
force Evans to read Garner her rights.




                                           7
       The second audiotape commences with Evans suggesting they read over
Garner’s written statement. Evans then reads a statement which indicates that, on the
night of September 18, 2004, Christopher Harris told Garner that he killed Alexander
because of some things Alexander had said about him. The statement also indicated
Christopher Harris “felt bad about the situation . . . .” Christopher Harris did not
provide details but said, “I did it.”
               c. Recorded telephone conversation.
       On the evening of February 25, 2005, Christopher Harris placed a telephone
call from jail to Loretta Brown, his girlfriend at the time. A tape recording of the call
was played for the jury. During the call, Christopher Harris asked Loretta Brown to
telephone Mericca Garner. After Garner entered the conversation, Christopher Harris
told her to “be careful what you say” and asked what had happened. Garner said
numerous police officers, including Detective Evans, came to her house with guns.
Garner and her baby were taken to the police station from 10:00 a.m. until 3:00 p.m.
because she “wasn’t cooperating.” Garner said the officers advised her of her rights
and threatened to arrest her and put her child in “the system.” Garner told the officers
Christopher Harris did not murder Alexander but the officers accused her of lying.
When Garner told Christopher Harris the search warrant involved a gun, a hat and a
leather coat, he responded, “Oh for real?”
       After the conversation with Garner ended, Christopher Harris told Brown he
needed her “to really think . . . .” Brown said she had heard what Garner had said
and indicated, “I know. I know already.” After further discussion, Christopher Harris
told Brown to “go to Aneisha’s house. I need you to go to Sean’s room and get the
dragon thing out of there. It’s a dragon. Remember, remember? . . .” When
Christopher Harris asked if Brown “got it,” she replied, “I already thought of that a
long time ago . . . .”




                                             8
       4. Garner’s trial testimony.
       At trial, Garner denied that on September 18, 2004, she had a conversation with
Christopher Harris in which he said he had killed Alexander and felt bad about it.
Garner also denied that Kwana Harris ever told her she took a cell phone or money
from Alexander. However, written statements signed by Garner, exhibits 15 and 16,
indicate she made these statements to Evans. Exhibit 15 states: “Night of
September 18, 2004, CJ [Christopher Harris] spoke with me and told me that he had
killed Stone because of something he [said] about him. . . . He cried and told me he
felt bad about it.” Exhibit 16 states: “Kwana also told me that she didn’t find any
money and that she drove the truck over there to Stone. . . . Her main concern to me
was that she wanted no part of the murder. The cell phone would have made it look
like a setup because her name was the last name on the phone.”
       Garner admitted she did not want to testify in this case because the defendants
were her son’s father and aunt.
       On cross-examination by Christopher Harris’s counsel, Garner testified the
detectives indicated they thought Garner was involved in the killing of Alexander.
Garner thought she was going to be arrested for murder and Detective Evans “guided”
her through the written statement and told her she had to sign it.
       On cross-examination by Kwana Harris’s counsel, Garner testified the written
statements were not true and Garner wrote them because she believed she had no
choice. Garner thought her child would be taken from her if she did not cooperate.
Further, Garner told the detectives the fight between Shanea and Kwana Harris in
San Diego was over a SIM card.
       Kwana Harris’s counsel called Garner as a defense witness and elicited that
James Hardgraves has a reputation in the community for lying. Garner also testified
Shanea used Kwana Harris’s cell phone. Further, everyone in San Diego used her cell
phone because it was a chirp phone and everyone had their own code they could use
on her cell phone. In September of 2004, Kwana Harris lived with her mother.


                                            9
       5. Testimony of the gang expert.
       Los Angeles Police Officer Aron Algren testified as a gang expert. In the
1980s, the Crips gang split into numerous subsets including the Rolling 40’s and the
Rolling 60’s. Algren estimated that in 2004 and 2005, the Rolling 60’s had between
2,000 and 3,000 members, and the Rolling 40’s had approximately 1,000 members.
Both gangs have rather large territories. In 2005, the 48 Neighborhood Crips had 15 to
20 members. The 48 Neighborhood Crips was aligned with the Rolling 40’s and the
Rolling 60’s and its territory was between the territory claimed by the Rolling 40’s and
the Rolling 60’s. The primary activities of these gangs included the sale of narcotics,
robbery, attempted murder and murder. At times there were violent rivalries between
the Rolling 40’s and the Rolling 60’s. Gangs wield power based on the threat of
violence which prevents citizens from reporting crimes committed by gang members.
       In Algren’s opinion, in 2004 and 2005, Christopher Harris was a member of the
48 Neighborhood Crips and an associate of the Rolling 60’s. Christopher Harris had
extensive gang tattoos. Also, during a traffic stop in 2003, Christopher Harris
admitted to a Los Angeles police officer that he was a member of the 48
Neighborhood Crips and an associate of the Rolling 60’s. Algren also testified Kwana
Harris was an associate of the Rolling 60’s.
       Based on hypothetical questions, Algren opined the shooting of Eric Alexander,
the robbery of Eddie Gilbert, and the shooting of Kevin Decoud, each of whom was a
member of the Rolling 40’s, had been committed for the benefit of the 48
Neighborhood Crips and the Rolling 60’s.
       6. Defense evidence presented by Christopher Harris.
       With regards to Eddie Gilbert’s competence, a forensic psychiatrist testified
Gilbert was admitted to Patton State Hospital in February of 2009. At that time,
Gilbert was severely disabled and was diagnosed as having disorganized schizophrenia
and polysubstance abuse.




                                           10
       A second forensic psychiatrist testified that, in a videotaped interview, Gilbert
displayed signs of schizophrenia and a rhythmic motor tremor which is a side effect of
medications commonly prescribed for schizophrenia. The use of PCP can cause
aggressive outbursts, hallucinations and extreme emotional volatility.
       The parties stipulated PCP was found in Decoud’s blood.
                                    CONTENTIONS
       Christopher Harris contends the trial court erroneously admitted into evidence
Kwana Harris’s hearsay statement identifying him as Alexander’s killer and
committed instructional error in failing to instruct the jury the statement required
corroboration. He further contends the cumulative prejudice attributable to these
errors requires reversal of his convictions even if either error, considered alone, would
be insufficient to warrant that result.
       Kwana Harris contends the trial court erred in admitting gang evidence as to her
and defense counsel rendered ineffective assistance.2
                                      DISCUSSION
       1. The trial court properly admitted Kwana Harris’s hearsay statement
incriminating Christopher Harris as a statement against her penal interest.
       Prior to trial, the prosecutor filed a motion seeking to admit into evidence
statements made by Kwana Harris to James Hardgraves and Mericca Garner, and
statements overheard by James Hardgraves, Jamie Hardgraves and Mericca Garner
during Kwana Harris’s chirped telephone calls. The trial court conducted a hearing on
the motion and concluded these statements were admissible as declarations against
Kwana Harris’s penal interest.




2
       Each appellant also joins in all arguments raised by the other which may
inure to his or her benefit. However, the claims raised are either personal to the
appellant asserting them or so plainly meritless when considered in the context of the
co-appellant’s situation that we have no occasion to consider whether a contention
raised by one appellant might accrue to the benefit of the other.
                                           11
       On appeal, Christopher Harris contends the statement in which Kwana Harris
identified Christopher Harris as the individual who shot Alexander was not
“specifically disserving” of Kwana Harris’s interests and thus was not admissible
under the declaration against interest exception to the hearsay rule. (People v. Lawley
(2002) 27 Cal.4th 102, 153-154; People v. Duarte (2000) 24 Cal.4th 603, 612;
People v. Garcia (2008) 168 Cal.App.4th 261, 289.) Christopher Harris notes
People v. Lawley, supra, at pp. 153-154 and People v. Garcia, supra, at pp. 289-290,
held the portion of an aider and abettor’s statement identifying a confederate was not
admissible as a statement against interest. He reasons that, similarly, the portion of
Kwana Harris’s statements identifying Christopher Harris as the shooter did not
incriminate Kwana Harris and should have been excluded.
       Christopher Harris claims the only other evidence implicating him in the
murder of Alexander was Garner’s written statement to Detective Evans which was
unreliable in that Garner initially told the detectives Christopher Harris did not admit
the killing and she testified at trial that she attributed incriminating statements to
Christopher Harris only because the detectives threatened her with arrest, prosecution
and the loss of her child. Christopher Harris notes Detective Evans accused Garner of
driving the shooter to the crime scene and said he would assume she was “a player”
unless she told him the truth. Garner’s statement also was suspect because the portion
of the interview in which Garner was advised of her rights and initially incriminated
Christopher Harris was not recorded.
       Christopher Harris concludes that, absent Kwana Harris’s improperly admitted
hearsay statement, it is reasonably probable he would have been acquitted of count
one. Thus, the conviction and the multiple murder special circumstance finding must
be reversed. Further, because the error likely had an adverse effect on the jury’s
evaluation of his self defense claim as to count four, the murder of Decoud, that
conviction should also be reversed.




                                             12
       We conclude the trial court correctly found the statement admissible as a
declaration against Kwana Harris’s penal interest. Under that exception to the hearsay
rule, “Evidence of a statement by a declarant having sufficient knowledge of the
subject is not made inadmissible . . . 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, . . . that a
reasonable man in his position would not have made the statement unless he believed
it to be true.” (Evid. Code, § 1230.)
       In order for a statement to be admissible as a declaration against penal interest,
“ ‘[t]he proponent of such evidence must show “that the declarant is unavailable, that
the declaration was against the declarant’s penal interest, and that the declaration was
sufficiently reliable to warrant admission despite its hearsay character.” ’ [Citation.]
‘The focus of the declaration against interest exception to the hearsay rule is the basic
trustworthiness of the declaration. [Citations.] In determining whether a statement is
truly against interest within the meaning of Evidence Code section 1230, and hence is
sufficiently trustworthy to be admissible, the court may take into account not just the
words but the circumstances under which they were uttered, the possible motivation of
the declarant, and the declarant’s relationship to the defendant.’ [Citation.]”
(People v. Geier (2007) 41 Cal.4th 555, 584.)
       Because of concerns that declarations against penal interest may contain self-
serving and unreliable information, the exception generally does not “apply to
collateral assertions within declarations against penal interest.” (People v. Campa
(1984) 36 Cal.3d 870, 882.) Further, “[e]ven a hearsay statement that is facially
inculpatory of the declarant may, when considered in context, also be exculpatory
or have a net exculpatory effect. [Citation.] Ultimately, . . . ‘whether a statement is
self-inculpatory or not can only be determined by viewing it in context.’ [Citation.]”
(People v. Duarte, supra, 24 Cal.4th at p. 612.) Only those portions of the declaration
that are “specifically disserving” to the declarant’s penal interests are admissible under
Evidence Code section 1230. (People v. Leach (1975) 15 Cal.3d 419, 441)

                                               13
       “Courts applying [Evidence Code] section 1230 to determine the basic
trustworthiness of a proffered declaration are . . . to ‘consider all the surrounding
circumstances to determine if a reasonable person in [the declarant’s] position would
have made the statements if they weren’t true.’ ” (People v. Duarte, supra, 24 Cal.4th
at p. 618.)
       We review a trial court’s determination under Evidence Code section 1230 for
an abuse of discretion. (People v. Brown (2003) 31 Cal.4th 518, 536; People v.
Lawley, supra, 27 Cal.4th at pp. 153-154.)
       Here, there is no dispute that codefendant Kwana Harris was unavailable as a
witness at trial. This leaves us to consider whether the statement was against Kwana
Harris’s penal interests when made and whether it was reliable.3 With respect to the
first issue, Christopher Harris agrees the trial court properly admitted evidence of
many of Kwana Harris’s statements to James Hardgraves as contrary to her penal
interest, such as her statement she lured Alexander to the scene of the shooting and
took his cell phone. Christopher Harris focuses on Kwana Harris’s statement that
Christopher Harris shot Alexander and appears to argue a statement implicating a
codefendant, by definition, cannot be specifically disserving of the declarant’s penal
interest.
       However, the law does not require blanket exclusion of such statements.
Rather, whether such a statement is admissible as against the declarant’s penal interest
depends on the circumstances under which the statement was made, the declarant’s
possible motivation and the declarant’s relationship to the defendant. (People v.
Geier, supra, 41 Cal.4th at p. 584.) The distinction to be drawn is between statements
which are truly self-inculpatory, and therefore admissible, and those which are
partially self-serving and exculpatory, and therefore inadmissible.



3
       Christopher Harris concedes Kwana Harris’s statement was not testimonial and
thus does not implicate the Confrontation Clause. (Davis v. Washington (2006)
547 U.S. 813, 821-823 [165 L.Ed.2d 224].)
                                            14
       Review of the case law reveals the statements at issue in the cases cited by
Christopher Harris were excluded not because they incriminated individuals other than
the declarant, but because they were exculpatory, self-serving, or collateral to the
declaration against interest. This point is illustrated by a review of relevant cases.
       For example, in People v. Leach, supra, 15 Cal.3d 419, several defendants were
charged with conspiracy to commit murder. Prior to trial, some of the defendants
made statements that described the conspiracy and inculpated themselves and other
defendants. (Id. at pp. 438-442.) Leach held the statements should not have been
admitted at trial, noting the exception for admissions against penal interest was
“inapplicable to evidence of any statement or portion of a statement not itself
specifically disserving to the interests of the declarant.” (Id. at pp. 441-442,
fn. omitted.) People v. Duarte explained the holding in Leach rested on considerations
of reliability, noting a facially inculpatory statement, when viewed in context, may
actually be exculpatory or self-serving, and thus untrustworthy.
       In Duarte, the defendant and another man were charged with shooting at a
dwelling. (People v. Duarte, supra, 24 Cal.4th at pp. 607-609.) Prior to trial, the
defendant’s accomplice gave the police a statement acknowledging participation in the
crime, but minimizing his role. A redacted version of the statement was admitted at
the defendant’s trial as an admission against penal interest. (Id. at p. 609.) Duarte
reviewed case authority and stated: “Under the rule of Leach, 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.’ ” (People v. Duarte, supra, at p. 612,
quoting In re Larry C. (1982) 134 Cal.App.3d 62, 69.) Applying this rule, Duarte
concluded the redacted statement, viewed in context, was self-serving and thus should
have been excluded from evidence. (People v. Duarte, supra, at pp. 612-613.)
       However, People v. Samuels (2005) 36 Cal.4th 96, clarified that Leach and
Duarte do not exclude a statement that inculpates the declarant and other individuals,
provided the declarant’s facially inculpatory statements are not, in fact, exculpatory,

                                            15
self-serving, or collateral. In Samuels, the defendant asked one Bernstein to murder
her husband and, once Bernstein had done so, she successfully solicited two other
men to murder Bernstein. At trial, a witness testified Bernstein said, “ ‘He had done it
and . . . [the defendant] had paid him.’ ” (Id. at p. 120.) On appeal, the defendant
contended Bernstein’s statement the defendant had paid him to commit the murder was
inadmissible as it constituted an attempt to shift blame to her. (Ibid.) Samuels held the
entire statement was properly admitted as against the declarant’s penal interest,
notwithstanding the reference to the defendant. Samuels stated, “This admission,
volunteered to an acquaintance, was specifically disserving to Bernstein’s interests in
that it intimated he had participated in a contract killing – a particularly heinous type
of murder – and in a conspiracy to commit murder. Under the totality of the
circumstances presented here, we do not regard the reference to [the] defendant
incorporated within this admission as itself constituting a collateral assertion that
should have been purged from [the witness’s] recollection of Bernstein’s precise
comments to him. Instead, the reference was inextricably tied to and part of a specific
statement against penal interest.” (Id. at p. 121.)
       Here, as in Samuels, Kwana Harris’s statement that Christopher Harris shot
Alexander was not an attempt to mitigate her involvement in the offense, deflect
responsibility for the crime or shift blame to others. Rather, the statement explained
her involvement in the murder, namely, luring Alexander to the location where her
brother, Christopher Harris, shot him and thereafter taking Alexander’s cell phone in
an attempt to eliminate evidence connecting her to the offense. Because the entire
statement was against Kwana Harris’s penal interest, it fell within the exception and
properly was admitted at trial as substantive evidence of Christopher Harris’s guilt.
       We reached a similar conclusion in People v. Cervantes (2004)
118 Cal.App.4th 162. In that case, a nontestifying codefendant, Morales, inculpated
himself and two codefendants in a murder and an attempted murder while speaking
to a friend of all three defendants. (Id. at pp. 166-167.) On appeal, the two
codefendants contended Morales’s statement to the friend should have been excluded.

                                            16
(Id. at p. 169.) Cervantes found the trial court properly admitted evidence of
the statement at the defendants’ joint trial as a declaration against penal interest.
(Id. at p. 177.) Cervantes noted Morales did not attribute blame to the codefendants
but accepted an active role in the crimes and described how he had directed the
activities of one of the codefendants. (Id. at p. 175.) Further, because the declarant
was acting in concert with the codefendants, a statement incriminating a codefendant
also incriminated the declarant. (Id. at p. 176.)
       Cervantes relied heavily on an earlier case, People v. Greenberger (1997)
58 Cal.App.4th 298, which involved a kidnapping and murder committed by several
defendants. Greenberger held the trial court properly admitted evidence of a
codefendant’s statement in which the codefendant admitted planning the kidnapping
and acting as an aider and abettor while a codefendant held a gun on the kidnapped
victim. (Id. at pp. 339-340 & p. 340, fn. 16.) Greenberger held the reference to the
codefendant was “an integral part of the statement in which [the declarant]
implicated himself in planning and participating in the kidnapping and murder . . . .”
(Id. at p. 340.)
       Lawley and Garcia, the cases cited by Christopher Harris, excluded portions of
statements not because the statements inculpated individuals other than the declarant,
but because the circumstances under which the statements were made suggested the
statements were not reliable.
       In People v. Lawley, a statement by the actual killer that he was hired to kill the
victim was properly admitted as a declaration against penal interest. (People v.
Lawley, supra, 27 Cal.4th at p. 154.) However, the trial court did not abuse its
discretion in excluding the killer’s statement he had been hired by the Aryan
Brotherhood, rather than the defendant, because that portion of the statement was not
“specifically disserving” of the declarant’s interest. (Ibid.) Lawley found the portion
of the declarant’s statement indicating the identity of the entity that paid for the murder
did not make the declarant more culpable. (Id. at pp. 153-154.) Rather, the declarant’s
reference to the Aryan Brotherhood could only be understood as an attempt to

                                            17
exculpate the defendant. Thus, it was collateral to the declarant’s inculpatory
statements. (See People v. Samuels, supra, 36 Cal.4th at pp. 120-121.)
       People v. Garcia, addressed the admissibility of a note sent by the cellmate of a
defendant. Garcia rejected the argument the note was admissible as a declaration
against penal interest because, while one statement in the note asserted the author had
written the note, another said he had done so as a favor to the defendant. (People v.
Garcia, supra, 168 Cal.App.4th at pp. 286-290.) Thus, the statements were not wholly
inculpatory. Here, Kwana Harris’s statement that her brother shot Alexander was not
collateral, exculpatory or self-serving. Rather, it implicated her in the murder of
Alexander and thus qualified as a declaration against Kwana Harris’s penal interest.
       Kwana Harris’s statement also was reliable. “[A]ssessing trustworthiness
‘ “requires the court to apply to the peculiar facts of the individual case a broad and
deep acquaintance with the ways human beings actually conduct themselves in the
circumstances material under the exception.” ’ [Citation.]” (People v. Duarte, supra,
24 Cal.4th at p. 614.) Generally, the least reliable circumstance is when the declarant
has been arrested and makes his statement to police in an attempt to improve his
situation. The most reliable situation is one in which the conversation occurs between
friends in a non-coercive setting. (People v. Greenberger, supra, 58 Cal.App.4th at
p. 335; People v. Cervantes, supra, 118 Cal.App.4th at p. 175.)
       Kwana Harris made the statement at issue to James Hardgraves, Kwana
Harris’s brother in law, one week after the shooting during a family gathering long
before police had focused their investigation on the Harris family. Further, the
statement incriminating Christopher Harris as the shooter in the murder of Alexander
was not made for self-serving motives or under circumstances that rendered it suspect
or unreliable. Kwana Harris was not trying to deflect responsibility for the crime.
Rather, the statement was part of her admission she had taken an active role in causing
Alexander’s death. In sum, the circumstances under which the statement was made
indicate it was reliable.


                                            18
       We therefore conclude the Kwana Harris statement was against her penal
interest and bore a particular guarantee of trustworthiness such that the trial court did
not err in admitting evidence of the statement against Christopher Harris.
       Moreover, even assuming the statement should have been excluded, any error
in its admission was harmless in light of Garner’s written statement in which she told
Detective Evans that, on September 18, 2004, the day after Alexander was killed,
Christopher Harris told her that he killed Alexander because Alexander was saying
things about him. (People v. Watson (1956) 46 Cal.2d 818, 836; see People v.
Samuels, supra, 36 Cal.4th at p. 120 [applying Watson standard of review to error in
admitting hearsay under Evid. Code, § 1230]; People v. Duarte, supra, 24 Cal.4th
at pp. 618-619 [same].)4
       Although Christopher Harris denigrates Garner’s statement as the likely product
of coercion, it appears the detectives did no more than urge Garner to tell the truth.
It is settled that, “ ‘ “[w]hen the benefit pointed out by the police to a suspect is merely
that which flows naturally from a truthful and honest course of conduct,” the
subsequent statement will not be considered involuntarily made. [Citation.]” ’ ”
(People v. Holloway (2004) 33 Cal.4th 96, 115.) Given that Garner’s written
statement incriminating Christopher Harris properly was admitted at trial, any error in
the admission of Kwana Harris’s statement must be seen as harmless.
       2. Accomplice instructions unnecessary.
       Christopher Harris contends the trial court erred in failing to instruct the jury,
sua sponte, to determine whether Kwana Harris was an accomplice, and, if so, that her
statement incriminating him required corroboration. CALCRIM No. 334 would have
advised the jury it could use Kwana Harris’s statements to convict Christopher Harris
only if: “The accomplice’s statement is supported by other evidence that you believe,”


4
       Our harmless error analysis ignores the chirped telephone calls overheard by
James Hardgraves in which some unidentified male said he knew Kwana and
Christopher Harris had killed Alexander. As Christopher Harris correctly notes, this
evidence was not offered for its truth and was not offered against Christopher Harris.
                                            19
the “supporting evidence is independent of the accomplice’s statement,” and the
“supporting evidence tends to connect the defendant to the commission of the crime.”
(CALCRIM No. 334.) Although Kwana Harris’s self-incriminating statements were
corroborated by the phone records and the fact Alexander’s phone was never found,
this evidence did not connect Christopher Harris to the crime. Rather, the only
supporting evidence that tended to connect him to the crime was Garner’s written
statement, which Garner retracted at trial and was the product of at least some
coercion. Christopher Harris concludes that, had the accomplice instruction been
given, it is reasonably probable the jury would have determined Kwana Harris’s
statement incriminating Christopher Harris was not sufficiently corroborated and
acquitted him on count one. (People v. Lewis (2001) 26 Cal.4th 334, 371.)
       Based on our conclusion in the foregoing discussion section that Kwana
Harris’s statement incriminating herself and Christopher Harris properly was admitted
as a declaration against Kwana Harris’s penal interest, accomplice instructions were
not required.
       Penal Code section 1111 provides: “A conviction cannot be had upon the
testimony of an accomplice unless it be corroborated by such other evidence as shall
tend to connect the defendant with the commission of the offense; and the
corroboration is not sufficient if it merely shows the commission of the offense or the
circumstances thereof.” The purpose of Penal Code section 1111 is “[t]o ensure that a
defendant will not be convicted solely upon the testimony of an accomplice because an
accomplice is likely to have self-serving motives.” (People v. Davis (2005) 36 Cal.4th
510, 547.) “Testimony,” as used in Penal Code section 1111, includes “all out-of-
court statements of accomplices . . . used as substantive evidence of guilt which are
made under suspect circumstances.” (People v. Williams (1997) 16 Cal.4th 153, 245;
People v. Brown, supra, 31 Cal.4th at p. 555; People v. Belton (1979) 23 Cal.3d 516,
524-525.)




                                           20
       However, as explained in People v. Brown, the corroboration requirement does
not apply where the accomplice’s statement bears sufficient indicia of reliability to
permit admission under the declaration against the penal interest exception to the
hearsay rule. “ ‘The usual problem with accomplice testimony – that it is consciously
self-interested and calculated – is not present in an out-of-court statement that is itself
sufficiently reliable to be allowed in evidence.’ [Citation.]” (People v. Brown, supra,
31 Cal.4th at pp. 555-556; see also People v. Williams (1997) 16 Cal.4th 635, 682
[instructional duty not triggered where accomplice statements “made in the course of
and in furtherance of the conspiracy were not made under suspect circumstances and
therefore were sufficiently reliable to require no corroboration”].)
       Here, Kwana Harris’s statement to James Hardgraves that Christopher Harris
shot Alexander was made under conditions sufficiently trustworthy to permit
admission of the statement into evidence as a declaration against penal interest.
Therefore, although Kwana Harris was an accomplice in the murder of Alexander,
corroboration was not necessary and the trial court was not required to instruct the
jury her statement required corroboration. (People v. Brown, supra, 31 Cal.4th at
pp. 555-556.)
       Christopher Harris attempts to distinguish Brown on the ground the defendant
in that case did not identify a codefendant by name. However, as previously
discussed, the fact a statement inculpates individuals other than the declarant does not
render the statement suspect where an examination of the surrounding circumstances
indicates the statement was reliable when made.
       In any event any error was harmless. As Christopher Harris concedes, the trial
court instructed the jury to view out of court statements with caution. (CALCRIM
No. 358.) Further, the “failure to instruct on accomplice liability under [Penal Code]
section 1111 is harmless if there is sufficient corroborating evidence in the record.
[Citation.] ‘Corroborating evidence may be slight, may be entirely circumstantial,
and need not be sufficient to establish every element of the charged offense.
[Citations.]’ . . . The evidence ‘is sufficient if it tends to connect the defendant with the

                                             21
crime in such a way as to satisfy the jury that the accomplice is telling the truth.’
[Citation.]” (People v. Lewis, supra, 26 Cal.4th at p. 370.)
       Here, Kwana Harris’s statement was corroborated by Garner’s written
statement in which she indicated that on September 18, 2004, Christopher Harris told
her he had killed Alexander. Thus, an instruction requiring corroboration of Kwana
Harris’s out-of-court statement, had it been given, would not have resulted in a more
favorable outcome for Christopher Harris. (People v. Watson, supra, 46 Cal.3d at
p. 836.)
       3. The trial court properly admitted gang evidence against Kwana Harris.
       Prior to trial, Kwana Harris moved to exclude gang evidence as to her because
she was not alleged to have committed the murder of Alexander for the benefit of a
criminal street gang. The trial court ruled the prosecution could introduce gang
evidence as to Kwana Harris, but that its use would be limited.
       Thereafter, the trial court instructed the jury on the uses of gang evidence in
accordance with CALCRIM No. 1403, as follows: “You may consider evidence of
gang activity only for the limited purpose of deciding whether: [¶] The defendant
acted with the intent, purpose, and knowledge that are required to prove the gang-
related enhancements charged; OR [¶] The defendant had a motive to commit the
crime charged. [¶] You may also consider this evidence when you evaluate the
credibility or believability of a witness and when you consider the facts and
information relied on by an expert witness in reaching his or her opinion. [¶] You
may not consider this evidence for any other purpose. You may not conclude from
this evidence that the defendant is a person of bad character or that he has a disposition
to commit crime.”
       On appeal, Kwana Harris contends the trial court should have excluded the
gang expert’s testimony as to her, claiming it amounted to evidence of bad character,
which is inadmissible under Evidence Code section 1101, subdivision (a), and it
encouraged the jury to make negative inferences about her character which were not
relevant to her guilt or innocence. (People v. Archer (2000) 82 Cal.App.4th 1380,

                                            22
1392.) Further, the prejudicial effect of the evidence far outweighed any probative
value the evidence possessed. (Evid. Code, § 352.) Kwana Harris concludes the
admission of this evidence rendered the trial fundamentally unfair and requires
reversal of her conviction.
       Despite its potential for prejudice, gang evidence “is not insulated from the
general rule that all relevant evidence is admissible if it is relevant to a material issue
in the case other than character, is not more prejudicial than probative, and is not
cumulative. [Citations.]” (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167.)
       Here, in order to explain the circumstances leading to the murder of Alexander,
the prosecution was entitled to demonstrate the relationship of Christopher and Kwana
Harris to the gangs involved in this case because this evidence was relevant to the
issues of intent, motive and witness credibility. The gang expert testified Christopher
Harris was a member of the 48 Neighborhood Crips and an associate of the Rolling
60’s, and that Kwana Harris was an associate of the Rolling 60’s. This evidence was
significant because Alexander, the victim in count one, was a member of the Rolling
40’s, a gang that sometimes feuded with the Rolling 60’s. Because Kwana Harris’s
gang association tended to provide a motive for her involvement in the murder of
Alexander, evidence about gang culture and her gang association was relevant to the
charge against her. (People v. Samaniego, supra, 172 Cal.App.4th at pp. 1167-1168;
People v. Albarran (2007) 149 Cal.App.4th 214, 223-224.)
       Additionally, evidence of intimidation by gangs was relevant to assist the jury
in determining the credibility of witnesses who were reluctant to testify or who
recanted earlier statements.
       Regarding the assertion the gang evidence amounted to evidence of bad
character, the gang expert did not testify Kwana Harris committed any prior bad acts
and indicated only that she was an “associate” of the Rolling 60’s.




                                             23
       With respect to Kwana Harris’s claim the evidence should have been excluded
under Evidence Code section 352 as inflammatory and unduly prejudicial, no abuse of
the trial court’s discretion appears. “ ‘[B]ecause a motive is ordinarily the incentive
for criminal behavior, its probative value generally exceeds its prejudicial effect, and
wide latitude is permitted in admitting evidence of its existence.’ [Citations.]”
(People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550; People v. Garcia, supra,
168 Cal.App.4th at p. 275; People v. Martinez (2003) 113 Cal.App.4th 400, 413.)
       In any event, the testimony as to Kwana Harris’s involvement in gangs, as
differentiated from the testimony regarding Christopher Harris, was minimal.
Moreover, the trial court instructed the jury to limit its consideration of gang evidence
to proof of the gang enhancement, which was not applicable to Kwana Harris, and to
issues of motive and credibility, and not to consider the evidence for any other
purpose. The trial court specifically told the jury not to “conclude from this evidence
that the defendant is a person of bad character or that [s]he has a disposition to commit
crime.” We presume the jury acted in accordance with the instructions given.
(People v. Sanchez (2001) 26 Cal.4th 834, 852; People v. Holt (1997) 15 Cal.4th 619,
662; People v. Delgado (1993) 5 Cal.4th 312, 331.)
       Finally, any abuse of discretion in admitting gang evidence as to Kwana Harris
was harmless in light of her incriminating statements that indicated she lured
Alexander to the scene of his demise knowing he would be harmed and, after
Alexander was killed by Christopher Harris, she took his cell phone to eliminate
evidence of her involvement in the crime. These statements were corroborated by
telephone records that showed numerous calls between Kwana Harris and Alexander
in the hour preceding his death and the fact Alexander’s cell phone was never
recovered.
       In light of this evidence, under any standard of review, the outcome would not
have been more favorable had the trial court excluded the gang expert’s testimony as
to Kwana Harris. (Chapman v.California (1967) 386 U.S. 18 [17 L.Ed.2d 705];
People v. Watson, supra, 46 Cal.2d at p. 836.)

                                           24
       4. No ineffective assistance of counsel appears.
       Kwana Harris contends her counsel rendered ineffective assistance by failing to
present an opening statement, written motions or witnesses on her behalf. She further
asserts “there appears to have been no investigation of James Hardgraves or any other
witness involved in this matter.” Kwana Harris claims her main defense, that she was
at home at the time of the shooting of Alexander, was not presented even though
several witnesses confirmed they were with her and overheard Alexander’s final phone
call in which he claimed he was being followed and was frightened. Kwana Harris
asserts there is no reasonable explanation for counsel’s failure to call these witnesses.
She claims defense counsel failed to investigate and failed to present witnesses who
would have contradicted James Hardgraves’s account of her statements. Finally, she
asserts defense counsel also failed to present James Hardgraves’s preliminary hearing
testimony, which contradicted his trial testimony he bore Kwana Harris no animosity.
       The law to be applied is well settled. “In assessing claims of ineffective
assistance of trial counsel, we consider whether counsel’s representation fell below an
objective standard of reasonableness under prevailing professional norms and whether
the defendant suffered prejudice to a reasonable probability, that is, a probability
sufficient to undermine confidence in the outcome.” (People v. Gray (2005)
37 Cal.4th 168, 206-207, citing Strickland v. Washington (1984) 466 U.S. 668, 694
[80 L.Ed.2d 674] and People v. Ledesma (1987) 43 Cal.3d 171, 217.) A reviewing
court defers to “ ‘ “counsel’s reasonable tactical decisions in examining claims of
ineffective assistance of counsel [citation], and there is a ‘strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.’ ”
[Citation.]’ ” (People v. Hinton (2006) 37 Cal.4th 839, 876.) If the record on appeal
sheds no light on why counsel acted or failed to act in the manner challenged, an
appellate claim of ineffective assistance of counsel must be rejected unless counsel
was asked for an explanation and failed to provide one, or there simply could be no
satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
Otherwise, the claim is more appropriately raised in a petition for writ of habeas

                                            25
corpus, which permits the opportunity to present additional evidence regarding trial
counsel’s reasons for acting or omitting to act. (People v. Mendoza Tello, supra,
15 Cal.4th at pp. 266-267.)
       Taking Kwana Harris’s complaints in turn, our Supreme Court has recognized
that the decision to waive an opening statement can be a reasonable trial strategy.
(People v. Carter (2005) 36 Cal.4th 1114, 1189; People v. Mitcham (1992) 1 Cal.4th
1027, 1059 [“The decisions whether to waive opening statement and whether to put on
witnesses are matters of trial tactics and strategy which a reviewing court generally
may not second-guess”].)
       With respect to the assertion defense counsel failed to file written motions or
call witnesses, Kwana Harris does not specify what motions should have been filed or
identify witnesses counsel should have called. Regarding the claim defense counsel
should have called witnesses to establish an alibi, the record contains no evidence of
any witnesses who could have provided an alibi defense. Further, Kwana Harris
makes no attempt to show what the omitted witness’s testimony would have been or
that the testimony would have been sufficient to create a reasonable doubt as to her
guilt. Therefore, this argument is more appropriately presented in a habeas corpus
proceeding.
       Moreover, defense counsel called prosecution witness, Mericca Garner, as a
witness for the defense and elicited that James Hardgraves had a reputation in the
community as a liar. Defense counsel also elicited from Garner that other individuals
regularly used Kwana Harris’s cell phone.
       The record also contradicts Kwana Harris’s assertion defense counsel
apparently failed to investigate James Hardgraves. On cross-examination by Kwana
Harris’s counsel, James Hardgraves admitted he and Kwana Harris were not close, his
wife had been unfaithful to him with a woman introduced to her by Kwana Harris, and
his wife died a week after a car crash that occurred while she was traveling to Los
Angeles to assist Christopher Harris. Also, before his wife died, one of the Harris’s
had been involved in a shooting outside the home of James Hardgraves’s mother.

                                            26
James Hardgraves conceded “the Harrises were bringing a lot of turmoil and trauma”
into his life and he was not happy with them. Kwana Harris’s counsel also asked
James Hardgraves about the fight between Kwana Harris and her sister, Shanea, during
which Shanea produced a knife and Kwana Harris repeatedly denied Shanea’s
accusation that Kwana Harris had been involved in wrongdoing. Defense counsel also
cross-examined James Hardgraves at length as to his memory of incriminating
statements made by Kwana Harris.
       During cross-examination of Jamie Hardgraves, defense counsel established
that she, unlike James Hardgraves, did not recall any specifics in the statements made
by Kwana Harris during the weekend in San Diego. Jamie Hardgraves admitted she
never heard the name Alexander in the chirped phone conversations and never heard
“anything concerning a killing or murder . . . .” Counsel also attempted to show,
through the testimony of Jamie Hardgraves, that Kwana Harris regularly drove a silver
car, Shanea was the driver of the black SUV and Shanea’s behavior was unstable.
       Defense counsel also elicited Mericca Garner’s testimony that she felt her
child would be placed in foster care if she did not give the police a statement.
On cross-examination, Garner testified the written statements implicating Christopher
and Kwana Harris were false. Further, when Shanea accused Kwana Harris of killing
someone, Kwana Harris denied the accusation. Also, Garner did not hear Kwana
Harris admit involvement in any killing while they were in San Diego.
       The record also indicates defense counsel vigorously cross-examined Detective
Evans regarding Garner’s written statement and Detective Hansen regarding his
analysis of the cell phone records.
       Defense counsel thereafter utilized the evidence adduced at trial to urge the jury
to acquit Kwana Harris. Defense counsel argued the People’s evidence consisted of
“word on the street [and] rumors flying around” which were uncorroborated and
insufficient for a conviction. Counsel asserted there was no proof Kwana Harris took
Alexander’s cell phone and there were calls made on the phone after he died which the
prosecution had failed to explain. The black SUV was not driven exclusively by

                                           27
Kwana Harris and her cell phone was used by other people. Also, there was evidence
indicating Kwana Harris and Shanea fought over a SIM card. Thus, someone might
have taken Kwana Harris’s SIM card on the night Alexander was shot. Counsel
argued Shanea, Garner, Christopher Harris or some other person could have been
calling Alexander. Thus, there was an “absence of evidence.” Counsel noted James
Hardgraves had been convicted of a crime of moral turpitude and his testimony could
not be trusted. Further, James Hardgraves did not like Kwana Harris and, according to
Garner, a prosecution witness, James Hardgraves had a reputation in the community as
a liar. Counsel explained the other people present in San Diego were not called as
witnesses because they did not overhear the allegedly incriminating statements and
even Jamie Hardgraves, who did testify, did not hear Kwana Harris confess.
Counsel noted only James Hardgraves heard the callers claim Kwana Harris had
killed Alexander and, where the testimony of James Hardgraves and Jamie Hardgraves
differed, the jury should believe Jamie Hardgraves. Counsel argued Garner’s
statement had to be discounted because of the threats made to take her child from her.
In the recorded phone conversation, Garner indicated she frequently stayed at the
home of Christopher Harris’s mother and Kwana Harris also lived there. Thus, Garner
had access to the black SUV and Kwana Harris’s cell phone. This explained why
Garner would put blame on Kwana Harris. Counsel claimed the cell phone records
proved nothing in that the two cell phones were not always together the day after
Alexander’s death and Kwana Harris’s cell phone made calls through one tower and
Alexander’s phone made calls through two different towers. Counsel closed by
arguing the standard of proof and concluded the People had not shown Kwana Harris’s
guilt beyond a reasonable doubt.




                                          28
       In sum, review of the record leads us to conclude Kwana Harris has failed to
demonstrate ineffective assistance of counsel. (Strickland v. Washington, supra,
466 U.S. at p. 688.)
       5. There was no cumulative error.
       Christopher Harris contends cumulative error requires reversal. However,
there can be no cumulative error if the challenged rulings were not erroneous.
(People v. Bradford (1997) 15 Cal.4th 1229, 1382.) Because none of Christopher
Harris’s contentions involve error, there is no issue of cumulative error.
                                     DISPOSITION
       The judgments are affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                  KLEIN, P. J.


We concur:



              CROSKEY, J.




              ALDRICH, J.




                                           29
