Filed 9/8/16 P. v. Zambrano CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,                                                             B262756

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No. BA369032)
         v.

JULIO ZAMBRANO et al.,

         Defendants and Appellants.


         APPEAL from judgments of the Superior Court of Los Angeles County, James R.
Dabney, Judge. Affirmed.
         Matthew D. Alger, under appointment by the Court of Appeal, for Defendant and
Appellant Julio Zambrano.
         Marcia Levine, under appointment by the Court of Appeal, for Defendant and
Appellant Abraham Khan.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Michael R. Johnsen and Alene
M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
         Sergio Trejo Hernandez was using a pay phone near a busy Los Angeles
intersection when he was killed by a single gunshot to the head. A jury convicted
defendants Julio Zambrano and Abraham Khan of committing the murder. (Pen. Code, §
187, subd. (a).)1 The jury also found true various gang and firearm allegations as to both
defendants. (§§ 186.22, subd. (b)(1)(C), 12022.53, subds. (b), (c), (d), & (e)(1).)
         Both defendants appeal from the judgments entered against them. They contend
that the trial court deprived them of a fair trial by excluding their proffered evidence of
third party culpability. Defendants also argue that the prosecutor improperly relied upon
hearsay and facts not in evidence during her rebuttal argument, errors Zambrano further
claims were compounded by the trial court’s denial of his motions for mistrial and new
trial.
         We conclude the trial court properly excluded the evidence of third party
culpability. We further conclude that the prosecutor did not improperly rely upon
hearsay or facts not in evidence, and that even if she did, defendants were not prejudiced.
We accordingly affirm.
                                   PROCEDURAL HISTORY
         In an information dated September 1, 2010, the District Attorney of Los Angeles
County charged defendants with one count of murder (§ 187, subd. (a)). The information
further alleged that defendant Khan personally used (§ 12022.53, subd. (b)) and
intentionally discharged a firearm and caused great bodily injury and death to Hernandez
(§ 12022.53, subds. (c) & (d)), and that a principal personally used (§ 12022.53, subds.
(b) & (e)(1)) and intentionally discharged a firearm and caused great bodily injury and
death to Hernandez (§ 12022.53, subds. (c), (d) & (e)(1)). The information also alleged
that defendants committed the murder for the benefit of, at the direction of, and in
association with a criminal street gang with the specific intent to promote, further, and
assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(C)). Defendants
pleaded not guilty and denied the allegations.


         1
             All further statutory references are to the Penal Code unless otherwise indicated.
                                                 2
       After two mistrials, the second of which was occasioned by a deadlocked jury, a
third jury found both defendants guilty and found true all of the gang and firearm
allegations. The court sentenced each defendant to a total of 50 years to life in state
prison, consisting of 25 years to life on the murder count and an additional 25 years to
life for the most serious firearm allegation found true as to each of them, section
12022.53, subdivision (d) for Khan, and section 12022.53, subdivisions (d) and (e)(1) for
Zambrano. Pursuant to section 654, the court imposed and stayed additional sentences
for the remaining firearm allegations. It also struck the gang enhancements because they
did not add additional time to defendants’ sentences.
       Defendants timely appealed.
                               FACTUAL BACKGROUND
I.     Prosecution Case
       A.       Events Before the Shooting
       On the evening of March 3, 2010, 21-year-old James Rios visited his father John
Rios’s2 house on Telfair Avenue in the San Fernando Valley. John was associated with
the Mid City Stoners street gang. James, who first met his father in 2009, claimed he did
not have any gang affiliation. He admitted, however, to having a criminal record, and he
testified at trial while in custody and under a grant of immunity.
       James and John stood outside the house and talked. James heard music and voices
coming from the unattached garage, which he had never entered. Khan exited the garage,
and John introduced him to James as Abraham. James described Khan as heavy, with a
“[s]haved head, little glasses, little mustache, little goatee, [and] baggy clothes.” A
second male, whom James identified in court as Zambrano, also exited the garage. John
introduced him to James as “Stalker.”
       James and John remained outside talking, and Khan and Zambrano went back into
the garage to “kick it” with two women who were there. Eventually John decided to go
inside the house with his girlfriend, Jennifer Collins, at which point Zambrano and Khan


       2
           We refer to James and John by their first names to avoid confusion.
                                              3
invited James into the garage. James accepted the invitation and stayed in the garage
with Zambrano, Khan, and the two women for about an hour, listening to music, talking,
and drinking beer.
      The two women left, and John joined James, Khan, and Zambrano in the garage.
During the ensuing conversation, James learned that Zambrano and Khan were members
of the Playboys street gang, and that Khan’s gang moniker was “Diablo.” James also
learned that Zambrano and Khan lived in or at least were staying in the garage, which
James testified had been converted into a bedroom and small bathroom.
      The topic of conversation eventually shifted to guns. John retrieved a rolled-up
blanket from the house. Someone unrolled the blanket onto the floor, revealing
approximately five guns. James, John, and Khan “played with” and discussed the guns
while Zambrano “was on his phone.” Khan also pulled out a “little black and silver”
lockbox that contained “an even better gun than the rest of them,” a black nine-millimeter
Beretta. James did not see anything else in the lockbox.
      At the end of the evening, John took the blanket of guns back into the house and
Khan returned the Beretta to the lockbox. Khan also asked James if he wanted to do
some construction work with him and Zambrano the next day. The construction site was
an apartment complex located in “MS’s ‘hood.” James knew at the time that MS was a
gang. James also understood, from Khan’s comment about the MS neighborhood, that
MS was probably a rival of the Playboys. John gave his permission for James to go to
the construction job, and James spent the night on John’s couch.
      B.     The Shooting and Immediate Aftermath
             1.      James Rios’s Testimony
      The next morning, March 4, 2010, James, Zambrano, and Khan drove to the Los
Angeles construction site in Khan’s car, a “[n]icer, newer model” black Cadillac CTS
with “[n]ice rims,” tinted back windows, and a black leather interior. Khan drove,
Zambrano sat in the front passenger seat, and James sat in the back seat behind
Zambrano. James noticed the lockbox from the night before lying on the front passenger


                                            4
floorboard near Zambrano’s feet. As they traveled, Khan and Zambrano pointed out their
gang territory, which James noticed was marked by a lot of graffiti.
       James testified that he, Khan, and Zambrano stayed at the worksite until sometime
around 5:00 or 6:00 p.m. They left in the black Cadillac. Khan was driving, Zambrano
was in the front passenger seat, and James was in the back passenger seat. Less than five
minutes into their trip, James saw a Hispanic man talking on a pay phone. James testified
that Khan drove the Cadillac a short distance past the man on the pay phone, then pulled
the car over and parallel parked it. They did not stop to engage in any conversation with
anyone outside the car. James stated that, “Nothing was said as to why we were stopping,”
and on redirect testified that he “thought it was strange . . . . Just the pulling over, the him
getting out, us not knowing why - - or me not knowing why, you know. . . .”
       According to James, Khan got out of the car and looked around. James saw that
Khan had a “Dodger blue” sweater or hoodie “wrapped around” or “draped over” his left
arm. James also testified that Khan was wearing eyeglasses and a hat. Khan closed the
door and told Zambrano to move to the driver’s seat. As Khan walked away toward the
rear of the car, Zambrano jumped over the center console and got into the driver’s seat.
James asked Zambrano what was going on, but Zambrano was texting and “appeared to
be only interested in his phone.”
       James and Zambrano stayed in the car for what James estimated was “longer than
five minutes.” Then James heard a pop like a firecracker from behind the car. He began
to wonder why the car had pulled over and why they had been sitting there with the
engine off. He then saw Khan walking up alongside the passenger side of the car. Khan
got in the front passenger seat and told Zambrano, “All right, let’s go.” Zambrano started
the car and pulled away. James testified that Khan was “slightly frantic maybe.”
       According to James, Khan gave Zambrano directions on where to drive. James
testified that Zambrano initially made a left turn. As the car was turning, James saw a
police car sitting at a traffic light. James testified that the police car had several people in
the back seat. The officer behind the wheel of the police car looked at the black Cadillac
as it was turning. Everyone in the Cadillac looked back at the officer, and James “kn[e]w

                                               5
that Stalker and Abraham, the cop, they met eyes.” The officer did not pull over or
follow the Cadillac.
       Khan directed Zambrano to a tattoo shop in an industrial area. The drive took
approximately 10 to 15 minutes. Zambrano parked behind the tattoo shop and he, Khan,
and James went inside. Zambrano’s demeanor remained consistent and he spent most of
the time at the shop texting on his phone. Khan, however, “was acting weird,” “coming
out of the bathroom with, like, his hands dripping wet . . . jumping on his phone, talking
to people, just in and out.” During an interview with law enforcement, James said that
Khan was speaking Spanish on the phone. James testified that Khan seemed to know the
people at the shop and asked for a particular artist, a man by the name of Cartoon.
Cartoon was not around. James, Zambrano, and Khan waited around the tattoo shop for
Cartoon because Khan wanted to get tattooed by Cartoon and no one else. Cartoon never
arrived, and James, Zambrano, and Khan left the shop at around 9:30 or 10:00 p.m.
       Khan drove the trio back to John’s house. On the way there, James heard
Zambrano ask what had happened. James also heard Khan say that he had shot
somebody. James did not believe at that time that Khan had shot someone because he did
not see it with his own eyes, and because they had been on a busy street in broad
daylight.
       When James, Khan, and Zambrano arrived at John’s house, John was outside.
James wanted to talk to his father about the evening’s events, but Khan asked John if he
could talk to him about something. Zambrano went into the garage, and James waited
outside while John and Khan spoke inside the house for more than five minutes. When
they came out, John said to James, “Well, son, you had a good day at work, huh?” James
and John went into the house, and Khan and Zambrano left in the black Cadillac. James
again spent the night on John’s couch.
       Zambrano and Khan returned the next morning in a gold car that James said “kind
of looked the same as the black one, but it was a different color and the interior was
different.” James described the gold car as a “school mom type of car,” devoid of
“special rims” and a “special interior.” James asked them if he could have a ride to his

                                             6
grandfather’s house in Canoga Park. Khan drove James and Zambrano to Canoga Park in
the gold car. When they arrived at James’s grandfather’s house, Khan said, “Now we
know where you live.” James recalled “looking back at Stalker and he was just, like, you
know, what the fuck, you know.”
                2.   Testimony of Other Witnesses
        Maria Sanchez testified that she was in a long-term relationship with Sergio
Hernandez. Hernandez was not a gang member and did not fraternize with gang
members. He and Sanchez had a child together and lived in Los Angeles, approximately
one block from the intersection of James M. Wood Boulevard and Westmoreland
Avenue. Hernandez took the bus to and from work and typically called Sanchez from a
pay phone on his way home. On March 4, 2010, Hernandez called Sanchez and told her
he was on his way to meet her. After Sanchez hung up, she heard a gunshot. She became
worried because she heard ambulances and Hernandez had not arrived home yet. She
went outside to see what was going on and saw Hernandez lying on the ground.
        Jose Monterrosa was walking along James M. Wood toward Westmoreland at
around 5:15 p.m. on March 4, 2010. He was listening to music on headphones but could
still hear his surroundings. As Monterrosa approached the 7-Eleven convenience store on
the corner of James M. Wood and Westmoreland, he saw a black Cadillac CTS with
chrome rims “cruising” by him slowly. As the car passed, he heard the front passenger in
the car say “Where you from?,” which he recognized as “gangster terms.” Monterrosa
described the front passenger as an Hispanic male wearing a blue Dodgers hat, a black
shirt, and sunglasses. He could not see the driver and could not see into the back seat of
the car. Monterrosa turned around and began walking in the other direction, toward
Hoover Street. He then ran down a driveway and hid behind a tree because he was afraid
for his life.
        From his vantage point behind the tree, Monterrosa saw the black Cadillac make a
U-turn and park in front of a driveway. The driver’s side window was down, and
Monterrosa was able to see that the driver was a “skinny” Hispanic male. He could not
see into the back seat because the tinted windows were up. Monterrosa saw the front

                                             7
passenger—the same person who had asked where he was from—get out of the car.
Monterrosa noted that the passenger was “a little stocky” and had a white shirt covering
his hand. Monterrosa lost sight of the passenger as he walked toward the corner “where
there’s a phone booth,” the corner diagonally across or catty-corner from the 7-Eleven.
He noticed that the driver of the car “seem[ed] kind of nervous looking in the rearview
mirror,” “kind of leaning,” not looking “like a regular person.”
       Monterrosa “knew something was going to happen,” so he started to walk toward
his grandmother’s house on James M. Wood with the intention of going inside. Shortly
thereafter, Monterrosa heard a gunshot. He ran faster and went inside his grandmother’s
house. Once inside, he saw the passenger run back to the black Cadillac and get in the
front passenger seat. The car drove off toward Hoover Street at a normal rate of speed.
As it drove away, Monterrosa took a “memory picture” of the car. At trial, he recalled
seeing a Cadillac emblem and a CTS emblem on the back of the “black model, four-door
CTS Cadillac, [with] chrome rims, [and] black tinted windows from the back.”
Monterrosa also recalled that one of the people in the car had a facial tattoo beneath his
eyelid, but could not remember whether it was the passenger or driver.
       Another witness, Jacquelyn Contreras, lived in a second-floor apartment on James
M. Wood Boulevard. Around 5:15 p.m. on March 4, 2010, she was watching television
with her mother. She heard a gunshot outside and walked to the window. The first thing
that caught her eye was a car parked in front of a driveway across the street. The car was
black, with tinted windows and shiny silver rims. She saw hands on the steering wheel
but could not see the driver’s face or anything else within the car. Contreras also saw a
“guy running towards the car,” from the direction of Westmoreland. The man, whom
Contreras thought was Latino, was “a little chunky.” He was wearing a hoodie and
carrying a gun, which he stuffed into his waistband. Contreras saw him get into the front
passenger seat of the black car. The car drove away toward Hoover Street.
       Los Angeles Police Department (LAPD) Officer Allan Corrales testified that he
was transporting three witnesses from court to the Olympic Division police station in the
back of his police cruiser on the evening of March 4, 2010. He was driving south on

                                             8
Hoover, through MS-13 gang territory, when he stopped at a red light at the intersection
of Hoover and James M. Wood. While Corrales was waiting at the traffic light, a black
vehicle with shiny chrome rims caught his attention. Corrales watched the vehicle as it
made a left turn from James M. Wood onto northbound Hoover. Corrales made eye
contact with the driver as the vehicle passed within 12-14 feet of him. He described the
driver as an Hispanic male with a teardrop tattoo under his left eye. Corrales identified
the driver in a photo array and in court as Zambrano. Corrales could not see the front
passenger because the seat was reclined; he saw only “a silhouette leaning back.” He
could not see into the back seat because the tinted windows were up.
       Shortly after the car passed, Corrales received a radio call reporting a shooting
near the intersection of James M. Wood and Westmoreland. Corrales “transmitted over
the radio to let the other officers know that [he] had seen a black vehicle traveling
northbound on Hoover from James M. Wood” but did not document his sighting of the
black car in a report or log. After he dropped off his civilian passengers, Corrales drove
back up Hoover to where he had seen the black car. He drove around the area, but did
not see the car anywhere. Corrales then went to the scene of the shooting to assist the
officers who had responded to the radio call.
       LAPD Officer Josh McDonald was among those responders. McDonald testified
that the intersection of James M. Wood and Westmoreland was “kind of mixed use
between residential and business.” There was a 7-Eleven on the northwest corner,
residential buildings on the northeast corner, and small businesses including an ice cream
shop and clothing store on the southern corners. The southeast corner also housed a pay
phone. McDonald found a male lying on his back next to the pay phone. Based on the
blood coming from the man’s nose and ears, and his swollen temple, McDonald
concluded that the victim had suffered some sort of head wound. McDonald did not
observe any other injuries on the victim’s body. He saw a spent casing from a gun lying
on the ground near him.
       LAPD Detective George Lee took control of the investigation when he arrived on
the scene. He marked the single bullet casing as evidence. Lee testified at trial that the

                                              9
casing came from a nine-millimeter semiautomatic weapon. Lee further testified that he
spoke to Jose Monterrosa on the night of March 4, 2010. During that interview, Lee
received a call that police had located a car that matched the description of the one seen
fleeing the murder scene. Lee drove Monterrosa and his parents to the location of that
car, approximately a mile or two from the crime scene. Monterrosa told Lee the car was
very similar to the one he had seen; according to Monterrosa, it was the same color and
same model as the car he had seen, and had black tinted windows and chrome rims.
Further investigation revealed that the car was not the one used during the crime.
       Deputy medical examiner Dr. Juan Carrillo performed an autopsy on Hernandez
on March 5, 2010. He found a “hole defect” in the back of Hernandez’s head that was
surrounded by dark abrasions known as “stippling.” Carrillo testified that the stippling
indicated that Hernandez was shot at a close range of about two to three feet. Inside
Hernandez’s brain, Carrillo found lead and copper fragments consistent with a bullet.
Carrillo concluded that Hernandez died instantly from a single gunshot to the head.
Carrillo testified that the manner of death was homicide.
       C.     Investigation
       On March 5, 2010, the day after the shooting, Detective Lee sent a “crime
bulletin” about it to the entire LAPD. According to Lee, crime bulletins apprise other
officers of information such as a suspect or vehicle, and allow them to “see if they can
come up with something.”
       Officers in the Hollywood Division of the LAPD happened to be conducting an
unrelated investigation of Khan and Zambrano. One of those officers, Detective Lance
Jurado, testified that he and his team obtained a search warrant for “narcotics and
firearms” believed to be associated with residents of a garage on Telfair Avenue—John
Rios’s garage. On March 9, 2010, one of the officers surveilling the home informed
Jurado that two men had arrived in a gold Cadillac and gone inside the garage. Jurado
knew that Khan was connected to a gold Cadillac, so he deployed his team to execute the
search warrant.


                                            10
       The search team, including Detective Fruit,3 knocked on the door of the main
house, announced “Los Angeles Police Department,” and demanded entry. John Rios
and Jennifer Collins came out of the house and were detained.4 Khan and Zambrano
were found hiding in the bathroom of the garage. Officers did not find any guns in the
garage, but they recovered a “small amount of marijuana, handgun magazine with
ammunition in it, and some items identifying people who lived in the garage.” Police
also found approximately 24 nine-millimeter bullets in the garage. They seized five guns
from the main house. Those guns were not wrapped in a blanket or contained in a
lockbox, and none of them was a nine-millimeter Beretta.
       On or about March 10, 2010, Detective Fruit from the Telfair Avenue search team
informed Detective Lee that “they had someone, in particular, Mr. Khan, Abraham Khan,
who was driving a similar vehicle to that of the vehicle that [he] was looking at.” Lee did
a “work-up” of Khan and learned that a black Cadillac CTS was registered in Khan’s
name. Detective Ernesto Ignacio, Lee’s partner, went to the Hollywood Division station
and spoke to officers involved with the Khan and Zambrano narcotics and firearms
investigation. Ignacio became “confident” that the two investigations were related. He
obtained photographs of Khan, Zambrano, and John and put them into six-pack photo
arrays. Because he was concerned that Khan, Zambrano, and John might post bail—
which Khan and John in fact did—Ignacio immediately took the photo arrays to
Monterrosa and Contreras. Both Monterrosa and Contreras circled the photograph of
Khan, which Monterrosa said resembled the passenger in the black car he had seen and

       3
         The record does not contain Detective Fruit’s first name.
       4
         James testified that he subsequently received numerous phone calls from Collins.
When he returned her calls, “[s]he was, like, hysterical, crying. She said she was at the
police station, that they arrested my dad and that they were asking her a bunch of
questions about what happened on this and this day and things like that.” James testified
“[t]hat’s when [he] realized what had actually happened” on March 4. James later told
John “everything that had happened that day from beginning to end” but left for Oregon
without speaking to the police. Law enforcement personnel, including the prosecutor,
traveled to Oregon and spoke to James for the first time in June 2013. James, who was in
custody, agreed to speak to them only after they transported him to Los Angeles and let
him speak to John. James identified Khan and Zambrano in photo arrays.
                                            11
Contreras said resembled the person she had seen outside of the car. Monterrosa was not
able to identify Khan in court. According to Ignacio, Khan “looked completely different”
at trial than he did at the time of his arrest: “[h]e lost a substantial amount of weight,
grew out his hair.”
       After obtaining positive identifications of Khan, Ignacio sent surveillance teams to
John’s house on Telfair Avenue and to the address in Monrovia at which the gold
Cadillac was registered. Khan’s uncle, John Blanco, lived at the Monrovia address.
Blanco testified at trial that the owner of the house had a “goldish or champagne-colored”
Cadillac. According to Blanco, he loaned the gold Cadillac to Khan on March 8, 2010,
and Khan left the black Cadillac at the Monrovia residence.
       Ignacio’s surveillance team reported that a black Cadillac was parked at the
Monrovia residence. Ignacio obtained search warrants for both John’s house and the
Monrovia residence. Both warrants were executed on March 11, 2010. Ignacio
participated in the Monrovia search and impounded the black Cadillac. The vehicle was
searched for evidentiary items but none was found. No usable fingerprints were
recovered from the vehicle.
       On March 12, 2010, Lee interviewed Blanco. That same day, Lee received
information that “someone was removing property at the Telfair address that belonged to
Mr. Khan.” Lee went to John’s house and saw the gold Cadillac leaving the location.
Lee stopped the vehicle. Another detective searched the car and found Khan’s passport.
Ignacio testified that unspecified “property” belonging to Khan and “some money” were
found as well. Lee took the occupants of the car, Jose Villa and Patricia Valle, to the
Olympic Division police station. Lee learned that Villa and Valle “were in constant
contact” with Khan via cell phone. Lee obtained a telephone number associated with
Khan and discovered that the number was connected to a residence in Orange County.
       Lee and Ignacio obtained a search warrant for the Orange County residence, which
was occupied by Khan’s relatives. On March 13, 2010, he and other officers executed
the search warrant and arrested Khan, who had posted bail and was present. Officers also
recovered a computer bag containing a laptop, a cell phone, and some thumb drives, all of

                                              12
which were found in a bedroom that LAPD Detective Dennis Bopp testified “was
described by the aunt as being Mr. Khan’s room.” The officers booked those items into
evidence.
       LAPD computer crimes officer Maurice Kwon analyzed the computer, cell phone,
and thumb drives. His analysis revealed that the computer’s password-protected user
account belonged to “Abraham.” Kwon found 702 internet searches relating to the
Playboys gang on that account. The searches were conducted between January 22, 2010
and February 6, 2010. He also found “a number of searches relating to murders or
homicides,” and a query for “recent shootings in Los Angeles.” In addition, Kwon
recovered approximately 160 to 170 images “possibly related to gangs or gang members
or gang paraphernalia,” and an article “bookmarked in relation to the keyword Playboy.”
The undated article, which was last accessed on January 18, 2010, contained a sentence
concerning a deceased Playboys member named Lucky: “He mentioned Lucky, one of
the dead Playboys, who was shot and killed on a street corner last summer while talking
on a pay phone.” From one of the thumb drives, Kwon recovered a folder called
“[H]omies” that contained gang photographs and other images that had been deleted on
March 5, 2010 or shortly thereafter.
       D.     Relevant Gang Evidence
       LAPD officer Juan Del Rio testified as a gang expert. He was familiar with the
Playboys gang and its rivals, including Mara Salvatrucha, which is also known as “MS”
or “MS-13.” Both the Playboys and MS had territories within the Olympic Division in
2010. The Playboys’ territory was bounded by Olympic Boulevard to the north, Vermont
Avenue to the east, Venice Boulevard to the south, and Normandie Avenue to the west.
This territory bordered territory claimed by MS, which included the intersection of James
M. Wood and Westmoreland.
       Del Rio opined that the Playboys was a criminal street gang whose primary
activities included graffiti, grand theft auto, carjacking, possessing firearms and narcotics,
and committing assaults, batteries, and shootings. The Playboys gang had approximately
80 documented members in 2010. Members commonly wore clothing with the letter P or

                                             13
bunnies on it. Del Rio also testified that they wore “Dodger blue” and used a hand signal
that evoked the shape of the Playboy bunny logo.
       Del Rio testified that it was common for Playboys members to paint graffiti both
inside and outside their territory. The court admitted an exhibit depicting some Playboys
graffiti. According to Del Rio, “you can see the words [sic] Playboys behind the two
individuals that are depicted in the photograph. Above it, Lucky Bird.” Del Rio was not
familiar with Lucky Bird, but testified that “usually when a group of gang members will
do a graffiti like that, everyone that’s present at the time when it’s done, they will write
their monikers. We call that a roll call.” Del Rio noted that “[a]t the bottom right of the
Playboys . . . it says Muerto. That’s another moniker.”
       According to Del Rio, it is common for gang members to get tattoos declaring
their allegiance to their gang or “trophy tattoos” commemorating incidents of criminal
behavior. Khan had numerous tattoos related to the Playboys gang, and admitted his
gang membership to officers when he was arrested in 2000 and 2001. Zambrano
admitted his Playboys membership during previous arrests dating back to 2000 and had
numerous Playboys-related tattoos, including the words “Lucky” on his left arm and
“Bird” on his right. Zambrano also had teardrop tattoos under his left eye. Del Rio
opined that Khan and Zambrano were members of the Playboys gang in 2010. Del Rio
testified that Khan’s monikers were “Diablo” and “Termite,” and Zambrano’s moniker
was “Stalker.”
       Del Rio testified that it is common for gang members to commit crimes with
fellow gang members. He explained that there were several reasons why gang members
tend to commit crimes in groups: “for security purposes[,] to show force and also to
validate their work so they can go back to their fellow gang members and . . . . [h]ave
someone that can corroborate that.” One of the activities common to predominantly
Hispanic gangs like the Playboys is “hitting someone up or asking, ‘Where are you
from?’” According to Del Rio, “if you have a gang member from Playboys that tells
another person, ‘Where you from?’ if it’s a rival gang, as soon as they hear that rival
name, sometimes that will ensue in a fight or a shooting or a stabbing.” Even if the gang

                                              14
member does not get a response to this query, “they will see that as a form of disrespect”
and “will still inflict violence on that other person.” Thus, there is an “expectation that
violence is going to follow” when someone is “hit up.” Del Rio noted that individuals
who are not gang members sometimes get caught up in the violence.
       According to Del Rio, gang members generally know the boundaries “of their
territories and also the territories where their enemies’s [sic] territories begin. So when
they cross that line, they’re exposing themselves to be, one, victimized by the rival gang,
and also to start a gang feud.” Del Rio testified that the Playboys and MS “have been
feuding for years,” and Playboys members frequently go into rival gang areas and shoot
rival gang members when they are feuding with a particular gang. He opined that a
Playboys gang member would gain elevated status within the gang if he went into rival
MS territory and committed a shooting. When given a hypothetical mirroring the
evidence presented at trial, Del Rio opined that the shooting would have been committed
for the benefit of the shooter’s gang.
II.    Defense Case
       Khan called several witnesses to testify in his defense. Zambrano did not call any
witnesses.
       Jayme Licuanan, a retired federal narcotics agent and police officer, testified that
he was driving west on James M. Wood near Westmoreland around 5:15 p.m. on March
4, 2010. While he was stopped at a red traffic light, Licuanan looked around and noticed
a young man on a pay phone, which he thought was “strange” in light of the proliferation
of cell phones. He then saw a Latino male who was a “little heavy, maybe” get out of a
car. He had a jacket hanging on his left hand. Licuanan testified that the man with the
jacket approached the man on the pay phone and stopped about eight to 10 inches away.
Licuanan looked away. He then heard a gunshot and saw the man on the pay phone fall
to the ground. The man with the jacket walked away briskly and got into a black car.
Licuanan described the black car as a “new Honda car” with “unusual rims” that were
“nice” and “clean.” Licuanan was unable to get the car’s license plate number. He also
was unable to identify a suspect when a detective showed him a six-pack photo array.

                                             15
       Doris Chaney, the tutorial coordinator at California State University, Northridge,
testified that she met Khan when he started attending school on an engineering
scholarship in 2006 and hired him as a tutor in 2009. Khan tutored at-risk students for 20
hours per week. He also served as secretary of the engineering honor society and helped
mentor students who were struggling with addiction. In Chaney’s opinion, Khan was
peaceful and nonviolent. She conceded on cross-examination that Khan had gang-related
tattoos, but testified that he did not look like a gang member and “was trying to do
something with his life.”
       Retired LAPD Officer Steven Strong appeared as a gang expert for the defense.
He testified that the number of gang tattoos a person has is not necessarily correlated with
the level of violence in which that person engages. Strong also testified that he has seen
teardrop tattoos on people who are not gang members. Strong further testified that a
person may have a gang tattoo but may no longer be associated with a gang. Strong
opined that a gang member who has not been identified on a field identification card for
eight years and has been attending college during much of that time is probably no longer
an active gang member.
       Linda Barrera lived with Khan’s uncle John Blanco in Monrovia. Barrera testified
that Khan stayed at their home on March 7, 2010. His black car was not there before
March 7, 2010. At that time, Khan’s head was shaved and he had a mustache.
       Private investigator Lawrence DeLosh took photographs from Contreras’s and
Monterrosa’s reported viewpoints. Those photographs were admitted into evidence.
       Khan’s mother, Rosalinda Khan, testified that Khan was left-handed. She had
never heard him speak Spanish.
                                      DISCUSSION
       Khan and Zambrano advanced competing theories at trial—Khan’s defense was
one of mistaken identity, while Zambrano’ s was that he was merely present and did not
know that Khan intended to murder Hernandez. On appeal, however, defendants raise
essentially the same claims: they contend the court erroneously refused to admit evidence


                                            16
of third party culpability, and the prosecutor committed prejudicial error by making
improper arguments. We consider these contentions in turn.
I.     Third Party Culpability
       A.     Background
       Prior to trial, Khan’s counsel informed the court that he wished to call Ricardo
Cabral as a witness. Zambrano’s counsel later joined the request. Khan’s counsel told
the trial court, “Cabral testified under oath that he overheard Roberto Ceron bragging
about committing this murder to another individual, not directly speaking to Mr. Cabral.”
The court stated that it would “have to hear more than what’s being purported at this time
in the offer of proof before I allow that testimony to come in.” The court further
explained that “there has to be something connecting that person to the crime” and it had
not “heard anything at this point that establishes sufficient nexus to do that.”
       During trial, Khan’s counsel provided the court with a transcript of testimony
Cabral gave in an unrelated murder case that was tried in 2012, People v. Martinez, No.
BA361721-01. According to that transcript, which was included in the record on appeal,
Cabral was a member of the Villa Boys gang who was serving a sentence for burglary.
He previously had been arrested for “going into cars, trying to steal purses” but was
sentenced to probation and released after providing information regarding Martinez.
Specifically, Cabral testified that Martinez was his friend and told him that “he had
dropped somebody on Sixth and - - I think 6th and Berendo,” or “6th and Vermont.”
That area was near Cabral’s mother’s house, which he testified was within MS gang
territory near “Berendo and 8th.” According to Cabral, Martinez often wore hats and
shaved his mustache after the murder.
       Cabral testified that he subsequently was arrested in March 2010 and held in
custody “for a few days” for second degree burglary. He testified that he was released
after providing “information on another murder,” i.e., not the one Martinez allegedly




                                             17
committed at Sixth and Berendo. 5 According to Cabral, he told the police that “[s]ome
other guy told me about another murder,” or, as Martinez’s counsel put it on cross,
“someone from Mara Salvatrucha . . . did a shooting at the 7-Eleven” in which the victim
“got shot behind the head.” Cabral could not remember the alleged perpetrator’s name
on direct examination, even when the prosecutor mentioned the name Roberto Ceron, but
remembered that the shooter belonged to MS. On cross-examination, however, Cabral
agreed that he “told officers that Robert [sic] Ceron, the guy from Mara Salvatrucha,”
told someone else about the murder. Cabral agreed to wear a wire and “went to go talk to
that guy.” His efforts to elicit a taped confession proved fruitless, however, because the
man “wasn’t really saying nothing.” The police released Cabral after this attempt, but
rearrested him in November 2010. He ultimately was sentenced to four years for the
burglary and was serving that sentence at the time of the Martinez trial.
       The trial court reviewed the transcript and accurately summarized it as follows:
“So it’s clear, what this involves is the witness testifying as to one murder and he is
subsequently arrested and released shortly after his arrest in March of 2010 and he claims
that somebody told - - and the reason he was released because was [sic] he got
information on a second murder. So he got a deal on the first case, got picked up on a
second case, and got released on that case in March, put on a wire to go talk to this guy to
get back to - - to see if they could confirm any of the information that he had given him
on this supposedly second homicide, and he got nothing.” The court opined that “there’s
a paucity of facts relating to that particular incident and nothing that would connect it to

       5
         The parties conflate the two murders about which Cabral testified. Zambrano
(whose argument Khan joins) represents that Khan “sought to present evidence that
someone named Roberto Ceron, aka Raul Martinez, had claimed responsibility for the
murder in this case,” and states that Cabral “testified that he overheard Raul Martinez, an
MS gang member, say that he shot someone in the back of the head in March 2010, at a
7-Eleven store located at 6th and Berendo streets.” Respondent similarly refers to the
third party as “Robert [sic] Ceron, aka Raul Martinez.” These assertions are not
supported by the transcript of Cabral’s testimony, which does not indicate that Martinez
has an alias and refers to two distinct murders: one allegedly committed by Martinez in
August 2009, and another allegedly committed by a person named Ceron, sometime prior
to Cabral’s arrest in March 2010.
                                             18
the shooting that took place on the corner of James M. Wood and Westmoreland.” The
court ruled that this evidence did not directly or circumstantially link the third party to the
crime and that the probative value of the evidence was outweighed by “the confusion it
could cause by introducing this evidence.”
       B.     Legal Principles
       Any “relevant evidence that raises a reasonable doubt as to a defendant’s guilt,
including evidence tending to show that a party other than the defendant committed the
offense charged,” is admissible. (People v. Hall (1986) 41 Cal.3d 826, 829 (Hall).) “To
be admissible, the third party evidence need not show ‘substantial proof of a probability’
that the third person committed the act; it need only be capable of raising a reasonable
doubt of defendant’s guilt.” (Id. at p. 833.) However, “we do not require that any
evidence, however 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.” (Ibid.) Similarly, evidence that another person “had some
‘remote’ connection to the victim or the crime scene, is not sufficient to raise the requisite
reasonable doubt.” (People v. DePriest (2007) 42 Cal.4th 1, 43.)
       The proper inquiry for trial courts to make when considering the admissibility of
third party culpability evidence is “limited to whether this evidence could raise a
reasonable doubt as to defendant’s guilt and then applying [Evidence Code] section 352.”
(Hall, supra, 41 Cal.3d at p. 833.) That is, “courts should simply treat third-party
culpability evidence like any other evidence: if relevant it is admissible ([Evid. Code,]
§ 350) unless its probative value is substantially outweighed by the risk of undue delay,
prejudice, or confusion.” (Id. at p. 834.) Courts should not reject proffered evidence of
third party culpability on the basis of its credibility; “[s]uch a determination is properly
the province of the jury.” (Ibid.)
       “A trial court’s ruling excluding third party culpability evidence is reviewed for
abuse of discretion.” (People v. Elliott (2012) 53 Cal.4th 535, 581.) Likewise, we

                                              19
review the trial court’s rulings on the relevance of evidence and its exclusion under
Evidence Code section 352 for abuse of discretion. (People v. Avila (2006) 38 Cal.4th
491, 577; People v. Lewis (2001) 26 Cal.4th 334, 373.)
       C.     Analysis
       Defendants argue that the trial court abused its discretion by considering Cabral’s
credibility, by concluding that there “was insufficient evidence to connect
Martinez/Ceron’s admission to the murder in this case,” and by concluding that the
potential for confusion outweighed the probative value of his testimony. Defendants also
claim that the exclusion of the evidence violated their right to a fair trial. None of these
contentions is persuasive.
       First, nothing in the record indicates that the court evaluated the credibility of
Cabral’s testimony. Defendants assert that the court “evidently” did, by commenting that
Cabral “got nothing” from the alleged perpetrator when he wore the wire. We disagree.
That statement plainly was part of the trial court’s summation of the proffered evidence.
The trial court did not suggest that Cabral’s testimony was incredible because he could
not elicit a confirmatory confession from the alleged perpetrator; it simply noted the
sequence of pertinent events documented in the transcript. We note further that the court
made no comments even alluding to classic hallmarks of credibility, such as Cabral’s
criminal record, the lapse of time between the murders and his testimony, or his inability
to recall names and details.
       Second, the court’s conclusion that there was “a paucity of facts relating to that
particular incident and nothing that would connect it to the shooting that took place on
the corner of James M. Wood and Westmoreland” was not an unreasonable or arbitrary
one. According to Cabral, “someone from Mara Salvatrucha . . . did a shooting at the 7-
Eleven” in which the victim “got shot behind the head.” This testimony at best describes
events vaguely similar to those at issue in this case; it does little to link a third person to
the actual perpetration of the Hernandez murder. Construed generously, Cabral’s
testimony described a victim who was shot “behind the head” by MS member Roberto
Ceron “at the 7-Eleven.” Cabral offered no further details, such as the number of shots

                                               20
fired, the type of weapon used, the approximate date, or the gang territory or general
location in which the shooting occurred that would suggest the second murder he had
heard about was the murder at issue in this case.6 Absent these sorts of details, Cabral’s
skeletal testimony did not tend to raise a reasonable doubt about defendants’ involvement
in the murder of Hernandez at a pay phone catty-corner from a 7-Eleven. The trial court
accordingly did not abuse its discretion in excluding the evidence on this basis.
       Finally, the court reasonably concluded that the potential for confusion
substantially outweighed any probative value Cabral’s testimony might have had.
Defendants suggest that the “only potential for confusion was that the informant’s
testimony might cause the jury to believe the wrong person had shot Hernandez,” but this
circular suggestion is not persuasive. Many aspects of Cabral’s testimony were
potentially confusing. Cabral had difficulty recalling the name of the alleged shooter and
said nothing about the date or general location of the shooting. He said only that the
shooting was “at the 7-Eleven,” while the shooting in this case was diagonally across the
street from a convenience store. Indeed, attorneys familiar with the entirety of Cabral’s
testimony have conflated his description of two distinct murders into a single murder
committed by a perpetrator named “Martinez/Ceron” who changed his appearance
afterward. It was not an abuse of discretion for the court to conclude that a jury
composed of laypeople similarly might have become confused.
       In light of our conclusion that the trial court did not abuse its discretion in
determining that the proffered evidence was inadmissible under Evidence Code section
352, it necessarily follows that the court did not violate defendants’ constitutional rights
by excluding the evidence. “As a general matter, the ordinary rules of evidence do not



       6
         We reiterate that Cabral explicitly described two separate murders. One of those
murders, the one allegedly committed by Martinez in 2009, occurred at or near the
intersection of Sixth and Berendo and was followed by a change in Martinez’s
appearance. The second murder, the one allegedly committed by Roberto Ceron, a
member of Mara Salvatrucha, occurred at some unspecified point in time “at the 7-
Eleven” in some unspecified location.
                                              21
impermissibly infringe on the accused’s right to present a defense.” (Hall, supra, 41
Cal.3d at p. 834.)
II.    Prosecutorial Misconduct
       Defendants contend the prosecutor committed prejudicial misconduct during her
rebuttal argument, and the trial court erred in failing to grant a mistrial or new trial to
rectify the prejudice.
       A.     Legal Principles
       Prosecutors are afforded wide latitude to draw inferences from the evidence
presented at trial. (People v. Hill (1998) 17 Cal.4th 800, 823.) Likewise, they are
permitted to make “‘a wide range of descriptive comment’” on the evidence and may
vigorously argue that reasonable inferences or deductions should be drawn therefrom.
(People v. Martinez (2010) 47 Cal.4th 911, 957.) Prosecutors also may state matters that
are common knowledge or are drawn from common experience, history, or literature
(People v. Wharton (1991) 53 Cal.3d 522, 567), and are permitted to fairly respond in
rebuttal to arguments made by defense counsel (People v. Reyes (2016) 246 Cal.App.4th
62, 74). However, these allowances do not excuse misstatements of fact, whether
deliberate or mistaken. (Hill, supra, 17 Cal.4th at p. 823.) It is equally impermissible for
prosecutors to mischaracterize evidence (ibid.), to elicit evidence in violation of a ruling
by the trial court, or to refer during opening statement or closing argument to evidence
the trial court has deemed inadmissible (People v. Crew (2003) 31 Cal.4th 822, 839).
       “‘A prosecutor’s conduct violates the Fourteenth Amendment to the federal
Constitution when it infects the trial with such unfairness as to make the conviction a
denial of due process. 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 trial court or
the jury.’ [Citation.] When a claim of misconduct is based on the prosecutor’s
comments before the jury, as all of defendant[s’] claims are, ‘“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.”’” (People v. Gonzales (2011) 52 Cal.4th 254,

                                              22
305.) “Because we consider the effect of the prosecutor’s action on the defendant, a
determination of bad faith or wrongful intent by the prosecutor is not required for a
finding of prosecutorial misconduct.” (People v. Crew, supra, 31 Cal.4th at p. 839.) “A
defendant’s conviction will not be reversed for prosecutorial misconduct, however, unless
it is reasonably probable that a result more favorable to the defendant would have been
reached without the misconduct.” (Ibid.)
       We review the trial court’s rulings on prosecutorial misconduct for abuse of
discretion. (People v. Peoples (2016) 62 Cal.4th 718, 792-793 (Peoples).) We also
review for abuse of discretion the trial court’s rulings on motions for mistrial and new
trial. (People v. Ayala (2000) 23 Cal.4th 225, 283 [mistrial]; People v. Ault (2004) 33
Cal.4th 1250, 1260 [new trial].) “A trial judge is in a better position than is an appellate
court to determine the probable effect of [the prosecutor] and his [or her] conclusion on
that question will not be disturbed by an appellate court unless in the circumstances it is
plainly wrong.” (People v. Sarazzawski (1945) 27 Cal.2d 7, 15, overruled on another
ground by People v. Braxton (2004) 34 Cal.4th 798, 817.)
       B.     Timeliness of Objections
       Respondent contends defendants have failed to preserve their claims of
prosecutorial misconduct for appeal because they did not object to the prosecutor’s
rebuttal argument during the argument. By holding any objection until the conclusion of
the prosecutor’s argument, when the jury was dismissed for lunch, respondent contends,
defendants waited too long. We disagree.
       “To preserve a claim of prosecutorial misconduct for appeal, a defendant must
make a timely and specific objection and ask the trial court to admonish the jury to
disregard the improper argument.” (People v. Gonzales, supra, 52 Cal.4th at 305.) As a
general rule, a defendant alleging prosecutorial misconduct must object specifically and
contemporaneously. (See Peoples, supra, 62 Cal.4th at p. 801.) The reason for this rule
is to give the trial court an opportunity to correct any errors by admonishing the jury.
(Ibid.) Thus, a post-verdict motion for a new trial is not sufficient to preserve a claim of
prosecutorial misconduct for statements made during closing arguments (ibid., citing

                                             23
People v. Adams (2014) 60 Cal.4th 541, 577), but an objection made after an extended
colloquy may be (ibid., citing People v. Collins (2010) 49 Cal.4th 175, 225). A claim of
prosecutorial misconduct during closing argument also may be preserved if presented in a
motion for mistrial made while proceedings were still ongoing. (Peoples, supra, 62
Cal.4th at pp. 800-801.)
       Here, defendants objected at the conclusion of the prosecutor’s rebuttal argument,
while the jury was at lunch and before it began deliberating. The timing of their
objections, while perhaps not ideal, nonetheless “provided the trial court with an
opportunity to admonish the jury prior to the start of deliberations.” (Peoples, supra, 62
Cal.4th at p. 801.) “Moreover, defendant[s’] objections were specific enough for the trial
court to craft suitable corrective instructions.” (Ibid.) Just as the defendant’s motion for
mistrial preserved his claim of misconduct in Peoples, defendants’ objections at the
conclusion of rebuttal argument were “alleged in time for the court to instruct the jury
and correct any error.” (Ibid.) The purpose of the rule was served and we therefore
conclude the objections were timely.
       C.     Packed Suitcases
              1.     Background
       During her initial closing argument, the prosecutor suggested that Khan attempted
to evade capture after murdering Hernandez. In support of this argument, she pointed to
evidence that Villa and Valle were apprehended after leaving the Telfair Avenue
residence in a gold Cadillac with “some of Khan’s property.” She further argued that
“you don’t see many of [Khan’s] belongings” in photographs taken during the search of
the Orange County residence, because “he needed to get out of town quite quickly.” The
prosecutor also noted that Khan changed his appearance by shaving his facial hair.
       Khan’s attorney responded to this argument during his closing argument. While
suggesting to the jury that there was no evidence of flight, counsel stated: “You heard
about a passport and then you heard one of the detectives saying that, oh, well, we were
afraid he was going to leave the country. . . . [I]s anybody going to leave a passport in a
place that you have vacated? But since Mr. Villa is a friend of his and he’s in

                                             24
photographs, there’s some basis for believing that that is flight? And questions by
[Zambrano’s counsel] on direct or on cross-examination at one point in time, there was
no packed suitcases. No toothbrushes. No stashes of money. No disguises.”
       Zambrano also called into question the evidence of Khan’s flight during his
argument. “I love this one. Mr. Khan packed his suitcase. He was fleeing the country.
We heard that from two witnesses. Right? And I’m thinking to myself, wow, that
sounds bad. Someone fleeing the country. They pack up their suitcase. They put their
extra glasses in, for prescription glasses. They put their toothbrush in. They put their
whatever you’re going to pack that you need to pack. . . . When I say toothbrush, you
know I’m being a little facetious about that. But where’s this evidence, ladies and
gentlemen? You heard it twice. And they back-peddled [sic] both times because they’re
fudging this case. . . . Where is that evidence? Where is any evidence that there was a
box, there was clothes? There’s nothing, ladies and gentlemen. Again, they got caught
on that because it sounded good. Oh, he was going to flee the country. Sounds great.
Right? Come on. Really?”
       On rebuttal, the prosecutor returned to the issue of Khan’s flight. She asked the
jury, “You want to know what the evidence is of this man’s fleeing? The two bags that
are packed in his bedroom. Okay? I mean, I almost have to laugh. Because they’re up
there really trying to get all of you to believe that this guy is not going to flee. ‘Where’s
the luggage? Where are his bags being packed?’ Well, counsel, if you had looked at the
evidence, you would see they’re sitting in his bedroom. Okay? Along with his computer,
along with his jump drive, along with some cell phones.” (Emphases added)
       Exhibit 49, to which the prosecutor was alluding, is a photograph of a bedroom—
the bedroom that Detective Bopp testified “was described by the aunt as being Mr.
Khan’s room” and from which Khan’s laptop and thumb drives were obtained. In the
foreground of the photograph, there are two soft-sided suitcases. The suitcases are
upright and closed.
       Khan objected to and moved for a mistrial and new trial based on the prosecutor’s
comments at the conclusion of her rebuttal argument. He contended her argument was

                                              25
improper because the two pieces of luggage in the photograph were “totally unidentified,
never testified to [sic] about to lay any particular foundation that they belonged to Mr.
Khan or that anything else in that room belonged to Mr. Khan.” Zambrano did not join
the objection or motion for mistrial on these grounds, though he later joined Khan’s
motion to continue sentencing to enable defense counsel to obtain further information
about the suitcases.7
       The trial court overruled the objection and denied the posttrial motions. When
considering the objection, the court stated that it “allow[s] wide latitude to both sides to
argue reasonable inferences,” and ruled that the comments about the suitcases “fall[] in
that category.” In discussing the posttrial motions, the court stated that the prosecutor’s
comment “didn’t go to the underlying issues of the case. It went to the question of
whether there was evidence of flight . . . . I think it was a comment, even if it was
improper, in light of all the evidence related to flight, it’s just not - - it was tangential at
best.” The trial court ruled that the comment was not improper, and would not warrant a
new trial even if it had been.
                2.      Analysis
       Khan argues that the prosecutor argued facts not in evidence when she asserted
that the suitcases depicted in Exhibit 49 belonged to Khan and were packed. He claims
“there was no evidence that the suitcases had anything in them, and no evidence that they
were appellant’s.” He further argues that the prosecutor “had the means to determine to
whom the suitcases belonged” but instead “manufactured the evidence and presented it to
the jury in argument as if it were true.” These arguments are not persuasive on the record
before us.
       During trial, the jury heard evidence that Khan’s aunt told LAPD officers that
Khan used the room in which the suitcases were found. Neither Khan nor Zambrano
objected to the prosecutor’s introduction of this hearsay evidence. The jury also heard
       7
           We accordingly consider this claim of misconduct only as to Khan.



                                               26
evidence that the laptop computer recovered from the same room had a single user
account in the name “Abraham,” which is Khan’s first name, and contained photographs,
Internet searches, and articles pertaining to Khan’s gang, the Playboys. The prosecutor
reasonably could infer from this evidence both that the room was used by Khan and that
other items found in it also belonged to him. The fact that the room was not within
Khan’s residence—the garage of John’s Telfair Avenue home—rendered even more
reasonable the inference that he used suitcases while at his aunt’s home in Orange
County.
       The prosecutor’s suggestion that the suitcases were packed was equally
reasonable. The suitcases were found in a room Khan “used” rather than permanently
lived in. They were found roughly contemporaneously with other evidence suggestive of
flight, namely Khan’s change of appearance and Villa and Valle’s use of a car associated
with Khan, possession of his passport, and removal of unspecified property from the
Telfair Avenue home. This evidence supported the inferences that Khan intended to flee
and had packed suitcases as part of that endeavor. Moreover, both defendants explicitly
argued that there were no “packed suitcases” indicative of flight by Khan. The
prosecutor was entitled to respond to these claims, and her response was a fair one
grounded in the evidence.
       Even if the comments were improper, we agree with the trial court that they were
not prejudicial. The evidence of Khan’s involvement in the Hernandez murder was
strong. Multiple eyewitnesses placed him and his distinctive car at the murder scene,
which was in rival gang territory. Monterrosa testified that someone matching Khan’s
description “hit him up,” which Del Rio opined was often a precursor to violent acts.
James testified that Khan had a nine-millimeter gun that he kept in a lockbox, and that he
saw the lockbox in the car on the day of the shooting. He further testified that Khan was
acting slightly frantic, sought to get a tattoo immediately following the incident, and
threatened him the following day. Evidence suggestive of flight reinforced rather than
completed this evidence, and, as the trial court observed, the suitcase was “tangential at
best” even with respect the alleged flight.

                                              27
       The trial court properly overruled Khan’s objections and denied his motions for
mistrial and new trial to the extent they relied upon the suitcase evidence.
       D.     Lucky Article
              1.     Background
       One of the items Officer Kwon recovered from Khan’s computer was an article
regarding Los Angeles gangs. The article began with an anecdote about a 13-year-old
girl who “was the innocent victim of a random gang shooting” while she put on makeup
in her bedroom. It also purported to quote a member of the Playboys gang named Chino,
who opined that “younger gang members don’t know how to behave on the streets” and
“mentioned Lucky, one of the dead Playboys, who was shot and killed on a street corner
last summer while talking on a pay phone.”8 The article further quoted Chino as saying,
“Nobody was there to watch his back, so this guy could just walk up to him from behind
and shoot him.” Kwon did not discuss the contents of the article during his testimony,
and neither did any other witness.
       Zambrano objected to the admission of the article, Exhibit 67, at the close of the
prosecutor’s case. He argued that it was “extremely inflammatory” because it discussed
the unrelated murder of an innocent victim. He further claimed that it lacked probative
value. Khan joined in these objections.
       The court overruled the objections on the ground that the article was probative
“for the impact that that it might have had on the reader. The conclusion could be that
the reader was, in fact, Mr. Khan.” The court further ruled, however, that “nothing in the
article itself would be admissible for the truth of the matter asserted.” The court offered
to “reference that and let [the jury] know why it’s being admitted and for the limited
purpose, but I don’t know if you want me to highlight that.” Zambrano responded, “I
would not.” The court responded, “So there you go. This is kind of problematic. I’m not
going to highlight it. I will if you want me to. I don’t mean highlighted, but I would give


       8
      It is unclear when the article was written. File data reported on the top of the
document indicate only that it was last accessed on January 18, 2010.
                                             28
a limiting instruction as to that particular item so it’s clear it’s not admitted for the truth
of the matter asserted. But over your objection, No. 67 will be admitted.”
       The article was not mentioned again until the prosecutor’s rebuttal argument.
After telling the jury “I’m not going to get into the facts of the article because most [sic]
it is just an article written by someone out there,” she made the following argument:
       “This particular article addresses the Playboys gang. And in it there is some talk
about a gang member by the name of Lucky. Why am I even bringing this up?
       “Because what you will learn is that Lucky, a Playboy gang member, was out at a
street corner on a pay phone when he was murdered in cold blood, this Playboy gang
member. And when he was murdered in cold blood, the other Playboy gang members
were very upset because no one was out protecting one of their own. They didn’t protect
their homeboy. Okay?
       “This individual, Lucky, who you didn’t even hear about in the trial and it wasn’t
a story that was raised, comes in through the evidence taken off Khan’s computer.
       “Now, why do I talk about Lucky to you? Because Lucky is very important to
them. Lucky is tattooed on Detective [sic] Zambrano’s arms, Lucky Bird. I’m going to
show you later some photographs of this Lucky Bird. But the fact that one of their own
was murdered violently at a street corner on a pay phone meant when Khan and
Zambrano drove by that pay phone that day, they seized an opportunity. Okay? And the
reason why it would be a trophy tattoo is because Khan and Zambrano can then go back
and say in the name of Lucky. We got one too. They got one of ours at a street corner on
a pay phone; we got one also. And that’s the point. That is what we’re talking about
when it comes to these gangs.”
       Zambrano objected after the argument but before the jury commenced
deliberations. He argued that it was improper for the prosecutor to refer to the article for
its truth. He further argued that her claims that “Lucky” and “Lucky Bird” were the same
person were not supported by the evidence. Zambrano’s “biggest concern” was that
“there [is] an additional motive being argued that once either Khan and/or Zambrano sees
someone at the pay phone, they both know we’re going to kill that guy on the pay phone,

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which would impute knowledge as to Mr. Zambrano.” He contended that such an
argument had a “devastating” impact on him, and asked the court “to reconsider and not
allow that one document about the article to go in with some sort of curative instruction,”
or grant a mistrial. Khan joined in Zambrano’s objections and requests.
       The court overruled the objection and denied defendants’ motions for mistrial.
The court explained: “Whether Lucky was actually shot at a phone booth is not as
important as whether or not the defendants believed he was shot. But the article came in
as basically part of the series of - - the activity that occurred shortly after the shooting.
That’s what it came in for. I don’t think that - - I think that in terms of the inferences that
[the prosecutor] is asking the jury to draw from that article, it’s a fair comment. As you
argued several things that you believed could be inferred from the evidence. Again, it’s
not as if they’re being charged with it. They’re being - - or there’s any suggestion that
they’re responsible for the shooting. It’s a suggestion that he was shot by an MS gang
member.
       “I don’t think that’s anything much more than what the gang expert already made
clear that these two are enemies. And that, in fact, when they confront one another, it
often results in violence and sometimes it escalates into somebody dying. So this is
nothing beyond what they’ve already heard.
       “The fact that there was a connection to a particular individual, I think, would be
relevant in terms of what - - going to motive. Whether or not it actually was a MS - -
somebody - - an MS gang member who shot him or not. The question is whether or not
the defendant believed that was the case. So I’m not going to remove that particular item
from the evidence and I’m not granting a mistrial, but your objection and motion are
noted for the record.”
       Zambrano later moved for new trial on the ground that the prosecutor committed
misconduct by “improperly using the facts of the article for the truth of the matter
asserted.” He further argued that the article only should have been admitted as to Khan,
and that the prosecutor used the article to fill a gap in the case, namely that Zambrano
was aware of and sought to aid and abet Khan’s intention of killing Hernandez.

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       The court denied the motion. It “reiterate[d]” its opinion that “it was fair game to
testify to this,” and ruled that the comments have “to be viewed within the context of all
the other evidence that came as motive relating to the active participation of both Mr.
Zambrano and Mr. Khan and the Playboys.” The court ruled, “I don’t think it’s so much
admissible for the purpose of knowledge, and it wasn’t argued as such. It was more a
principle of motive and as far as why they would do something in that gang’s territory in
the nature it was done.”
              2.     Analysis
       Defendants argue that the prosecutor improperly “offered the article for its truth
when the court had not admitted it for that purpose.” They point specifically to the
prosecutor’s assertion that the jurors would “learn” from the article that Lucky was
murdered at a pay phone, and her reference to “the facts of the article” that prefaced her
discussion. They argue that her assertions about Lucky “could only be true if the
information contained in the article was true,” and that her use of the word “facts” told
“the jurors that the article was proof that Lucky was killed and how he was murdered.
Assuming these arguments properly are before us, we disagree.9
       “Although defendant singles out words and phrases, or at most a few sentences, to
demonstrate misconduct, we must view the statements in the context of the argument as a
whole.” (People v. Dennis (1998) 17 Cal.4th 468, 522.) The trial court concluded that
the overarching thrust of the argument was that defendants had a motive to murder
Hernandez. This was not an abuse of discretion. Whether the statements in the article
about Lucky were true or not, the presence of the article on Khan’s computer reasonably
supported the prosecutor’s inference that Khan was familiar with its contents and
accordingly killed Hernandez in pursuit of vengeance. Indeed, the prosecutor returned to
this theme toward the conclusion of her rebuttal argument: “He chose to take a loaded


       9
        Respondent suggests Zambrano is precluded from presenting these issues on
appeal because he refused the court’s earlier offer of a curative instruction. We do not
decide whether Zambrano invited error; defendants’ arguments fail on the merits in any
event.
                                            31
gun into rival territory. He chose to pull that car around because he saw a man on a pay
phone who was young and who was of an ethnic race that matched the description of the
rivals, the MS. And he saw the fact that that guy was on a pay phone was now
redemption for whatever happened to Lucky.” Although her comments about the article
may have been close to the line, the prosecutor did not introduce the article to prove its
truth. She did not ask the jury to do anything more than consider the article as one piece
of a much bigger picture—a picture that in any event included other evidence from which
it could be inferred that there was a member of the relatively small Playboys gang named
Lucky Bird, with whom Zambrano was familiar to the point of tattooing the words
“Lucky” and “Bird” on his arms.
       Zambrano further contends the article “should have been admitted only as to Mr.
Khan,” because “the jury could only speculate that [he] was aware of the article, or the
information that it contained, and that it provided him with a motive to kill Hernandez.”
This argument is misplaced. The trial court admitted the article “only for the impact that
might have had on the reader,” and expressly observed that “[t]he conclusion could be
that the reader was, in fact, Mr. Khan.” It appears that Zambrano actually aims to
challenge the prosecutor’s suggestions that he and Khan shared the same retributive
motive on the day of the murder. His claim that there was no evidence he was aware of
the article is true in a strict sense, but there was certainly evidence from which the jury
could infer his awareness. He and Khan lived together in the cramped quarters of a
garage. They belonged to the same gang for almost a decade. The gang had only 80
members. He had the word “Lucky” tattooed on his arm.
       Even if there was an improper suggestion that Zambrano was aware of the
contents of the article, it does not follow that the jury necessarily “used the article to
conclude [Zambrano] was aware of how Lucky was murdered and therefore knew that
Khan was going to kill Hernandez” and therefore found him guilty on impermissible
grounds. Whether Zambrano knew or shared Khan’s precise motive was not the pertinent
question for the jury; motive is not an element of murder. The question was whether
Zambrano knew Khan was going to commit an act of murder and knowingly took steps

                                              32
intended to assist or encourage him in it. (See People v. Chiu (2014) 59 Cal.4th 155,
166-167 [describing elements of aiding and abetting first degree murder].) Ample
evidence in the record supports an inference that he did. Del Rio testified that gang
members are keenly aware of the boundaries of territories claimed by their gang and its
rivals, and multiple witnesses testified that the intersection of James M. Wood and
Westmoreland was within MS territory. Del Rio testified that the Playboys were feuding
with MS, and that Playboys members frequently go into rival gang areas and shoot rival
gang members when they are feuding with a particular gang. Monterrosa testified that
the people in the Cadillac asked him where he was from, and Del Rio testified that there
is an “expectation that violence is going to follow” when someone is “hit up,” even if that
person does not answer the query. James testified that a lockbox he knew housed a
Beretta was at Zambrano’s feet in the car, and multiple witnesses described the unusual
way in which Khan “draped” a shirt over his arm when he exited the car mere feet from
Zambrano. Even though there was no evidence that Khan and Zambrano explicitly
discussed their intentions, Zambrano obeyed Khan’s directive to get into the driver’s seat
without question, and kept watch in the rearview mirror in what Monterrosa described as
a nervous and abnormal fashion. Even Monterrosa, who was not in a gang, discerned
from the circumstances he observed that “something was going to happen.” The article,
improperly construed or not, was not the sine qua non of the case against Zambrano, and
it is not reasonably probable that a result more favorable to him would have been reached
had the prosecutor not made the arguments she did.
       For all of these reasons, the court did not abuse its discretion in finding there was
no misconduct and denying defendants’ motions for mistrial and new trial.




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                                    DISPOSITION
      The judgments of the trial court are affirmed.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


                                     COLLINS, J.

We concur:



EPSTEIN, P. J.


MANELLA, J.




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