Filed 10/24/14 P. v. Yi CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B251560

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. KA081781)
         v.

JAE HEE YI,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F.
Marrs, Judge. Affirmed in part, reversed and remanded in part with directions.
         Law Offices of Ronald A. Ziff, Ronald A. Ziff and Abby Besser Klein, for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and
Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
                                   I. INTRODUCTION


       A jury convicted defendant, Jae Hee Yi, of first degree murder. (§§ 187, subd.
(a).) The jury found the murder occurred while defendant was engaged in the
commission of robbery, burglary or carjacking. (§ 190.2, subd. (a)(17).) The jury also
convicted defendant of: first degree in concert robbery (§§ 211, 213, subd. (a)(1)(A));
first degree residential robbery (§ 211); carjacking (§ 215, subd. (a)); and first degree
burglary, with another person present. (§§ 459, 667.5, subd. (c)(21).) The trial court
found defendant had a prior serious felony conviction (case No. KA055011) within the
meaning of sections 667, subdivisions (a)(1), (b) through (i), and 1170.12. The trial court
further found defendant had served two prior prison terms (case Nos. FRE006868 and
03NF4021) within the meaning of section 667.5, subdivision (b). Defendant was
sentenced to life without the possibility of parole enhanced by five years. This was the
second time defendant was tried for these crimes. The first trial ended in a mistrial.


                                   II. THE EVIDENCE


                                A. The Prosecution’s Case


                                        1. Overview


       Summarized in a light most favorable to the judgment, the evidence was as
follows. Defendant was a member of a burglary conspiracy which targeted Indian
families. The perpetrators routinely stole cash, jewelry, electronics and vehicles. During
the present burglary, Panalal Shah was murdered. Mr. Shah suffered blunt force trauma
causing multiple bruises and abrasions, fractured ribs and vertebrae, and a fractured
spine. He was found with his hands and feet bound lying face down on his bedroom
floor. Defendant made admissions to his girlfriend, Jennifer Pasasouk, and an



                                              2
acquaintance, Josephine Chai. Defendant admitted assaulting a man. Defendant thought
the man had died.


                                      2. The evidence


                        a. December 4, 2007 burglary and murder


       On December 4, 2007, defendant and several accomplices burglarized a Diamond
Bar home. They entered the home after prying off a window screen at the back of the
house. They attempted unsuccessfully to access a safe inside an armoire. Several tools,
including a screwdriver, were left on the floor near the armoire. Latex gloves were also
left on the floor. They were visible in the crime scene photographs. And the victims’
Mercedes was stolen. There was evidence that subsequent to the burglary defendant had
the key to the Mercedes in his possession and knew where it had been parked. The
Mercedes was later found in West Covina. Boxes of latex gloves had been left in the
vehicle.
       During the burglary, Mr. Shah was murdered. The time of death was estimated at
between 1 and 4 a.m. Mr. Shah was found lying face down on his bedroom floor. His
hands and feet were bound with Christmas tree lights. He had suffered multiple blunt
force injuries. He had multiple bruises and abrasions, fractured ribs and vertebrae and a
thoracic spine fracture. Two preexisting conditions may have contributed to Mr. Shah’s
death—osteoporosis, causing his bones to be weak and break easily, and coronary artery
disease. Dr. Juan Carrillo, a deputy medical examiner, testified at trial that Mr. Shah had
a 50 percent narrowing of a major coronary artery. A 50 percent narrowing of a major
coronary artery decreases the blood flow to the heart. Dr. Carrillo explained, “In any
situation of stress, the heart requires more oxygen, and this can deprive the heart of the
oxygen it needs.” Dr. Carrillo further explained that if an individual in Mr. Shah’s
condition were tied up, facedown, with no ability to move, death could ensue: “The
person’s entire weight is on his chest and he will have difficulty breathing. If he is


                                              3
unable to turn his body, even though his face may be uncovered, eventually he will tire
out and will be unable to breathe, and die.” Given that Mr. Shah’s ribs had been
fractured and vertebrae bruised and crushed, Dr. Carrillo concluded: “With the injury to
the spine, it would prevent his lower extremities from moving. So any ability for him to
try to turn and remove himself from this situation is gone; and, therefore, he’d remain on
his chest. [¶] Injuries to the ribs now compromise his ability to breathe. He can’t
expand his chest very well with the fractured ribs. On top of that, now he’s facedown
with his entire weight, so that further decreases his ability to breathe.” If he remained in
that position unattended for a period of time, he would die. Dr. Carrillo was unable to
say whether a younger, healthier man with these injuries would have survived.
       Details of the crime were not made public. The location and the murder victim’s
name were disclosed. Information about the Mercedes was given only to law
enforcement agencies.


                    b. Ms. Chai’s January 9, 2008 arrest and interview


       On January 9, 2008, Ms. Chai was arrested on drug charges. Sergeant Randy
Seymour interviewed Ms. Chai in custody the following day, January 10. Sergeant
Seymour offered to “walk” the charges against Ms. Chai if she told him who perpetrated
the Shah burglary and murder. Ms. Chai said three people were involved. Defendant
was one of them. Ms. Chai had seen defendant with two pieces of jewelry, presumably
from the burglary. Ms. Chai thought the jewelry had since been sold. Ms. Chai told
Sergeant Seymour she overhead defendant talking to her boyfriend. Ms. Chai refused to
name her boyfriend. Her boyfriend was later identified as Steven Phong (Steven). The
conversation occurred at around 4 a.m. the day of the murder: “[Defendant] was
saying . . . that he wanted to get in the safe but he couldn’t get in. He’s saying that the
[Mercedes is] somewhere.” With respect to the murder, Ms. Chai told Sergeant
Seymour, “[A]nd I guess the old man came downstairs, into . . . the room, and
[defendant] didn’t get really into detail about [it] and I got the gist that something bad


                                              4
happened.” Ms. Chai said, “[They hurt the old guy because] [h]e was making noises.”
Sergeant Seymour ended the interview after Ms. Chai continually refused to identify the
perpetrators other than defendant.
       Ms. Chai later testified before a grand jury. She described defendant as a
potentially violent person, “I’ve seen [him] get angry with people that he thought were
snitching on him.” She also testified, “I have never seen him actually beat anybody up,
but I have seen him hold a gun to somebody.” Ms. Chai also told the grand jury that on
the morning following the Shah burglary, defendant had said to her, “I think I killed
somebody.” Defendant told Ms. Chai “they” went to the Shah home because there was a
safe, but they were unable to get into it. Defendant told Ms. Chai a man showed up
downstairs. Defendant restrained the man who resisted. Ms. Chai testified to the grand
jury: “[Defendant] said he went in the house and . . . I don’t think that he knew that
anybody would be home. But he went in the house, and the old man obviously showed
up downstairs. And . . . he did say that he – he sub – I can’t think of the word now, sub,
where you just hold somebody down like – so that can’t move, like restraining
him . . . and then the man resisted . . . and that’s it. I don’t think he knew that the man
died.” Ms. Chai said “they” took the man’s black Mercedes and parked it somewhere.
Defendant had the keys to the Mercedes.
       At trial, Ms. Chai testified her statements to Sergeant Seymour and her grand jury
testimony were untruthful. Ms. Chai said she did not hear any information about the
burglary from defendant. She had heard about the Shah burglary on the news and had
read about it on the Internet. She had not spoken to defendant about the burglary at all.
Ms. Chai said she had implicated defendant because she hated him. Ms. Chai testified,
“A lot of my testimony [before the grand jury] was because I had felt that [defendant] had
robbed me when I was . . . dealing dope when I was on the streets.” Ms. Chai also
testified she made the untruthful statements because she wanted to get out of custody and
she had been promised leniency. Ms. Chai told the grand jury what she thought the
detectives wanted her to say.



                                              5
                    c. The January 11, 2008 search pursuant to a warrant


       On January 11, 2008, sheriff’s investigators conducted a search of a home in
Rowland Heights pursuant to a search warrant. Defendant lived in the home with
Ms. Chai, Ms. Chai’s boyfriend, Steven and her boyfriend’s brother, Nelson “Nate”
Phong (Mr. Phong). Sergeant Seymour saw a Lexus automobile at the location. Also on
January 11, 2008, detectives searched a Rancho Cucamonga residence pursuant to a
search warrant. Defendant and his girlfriend, Ms. Pasasouk, had been staying in the
home. Officers found what appeared to be stolen electronics and currency, including
Indian currency.


                       d. Ms. Pasasouk’s January 11, 2008 interview


       Defendant’s girlfriend, Ms. Pasasouk, was present during the Rancho Cucamonga
search. Sergeant Seymour interviewed Ms. Pasasouk. The interview was recorded, but
the recording was lost prior to trial. Ms. Pasasouk told Sergeant Seymour the following.
Defendant made a living committing “licks”—in other words, burglaries, robberies, thefts
and drug dealing. Sergeant Seymour testified Ms. Pasasouk related the following, “She
said that [defendant] had come home one morning rather upset, and he told her that he
thought he had just killed somebody.” Defendant said it happened during a burglary.
The victim had been tied up and kicked. After that morning, defendant began committing
burglaries about once a week. Defendant told Ms. Pasasouk he lost a cellular telephone
during one of those subsequent burglaries. He left it in a car that was abandoned at the
burglarized home.


e. Defendant’s and Ms. Pasasouk’s January 14, 2008 arrests and subsequent interviews


       Defendant and Ms. Pasasouk were both arrested at a Fullerton hotel on January 14,
2008. This was a few days after Ms. Pasasouk spoke with Sergeant Seymour.


                                             6
Ms. Pasasouk was charged as an accessory to murder. Male and female clothing and
toiletries were in the hotel room together with a laptop computer, a small amount of
methamphetamine, and more than $10,000 in cash. The laptop appeared to be relatively
new. It contained pictures of an Indian family. It also contained a folder labeled
“Pasadena.” The folder held the names, addresses and telephone numbers of four Indian
families in Pasadena. During booking, defendant said he was known by a moniker.
       Sergeant Seymour interviewed Ms. Pasasouk in custody the day following her
arrest. The jury heard a recording of that interview. Ms. Pasasouk repeated that
defendant thought he had killed someone. She said defendant felt bad about it.
Defendant knew he was wanted for murder. Ms. Pasasouk told Sergeant Seymour:
“[Defendant] just told me that he tied up the person, he held down the person: he tied the
person; he kicked them, it was a couple of times. But then . . . after that, you know, he
didn’t know if the man had a heart attack or not. But he was saying that he probably had
a heart attack ‘cause he stopped moving.” According to Ms. Pasasouk, defendant’s
accomplices were Mr. Phong and John Smiles. Ms. Pasasouk overheard Mr. Phong and
defendant talking. They had not known Mr. Shah would be home. They knew Mr. Shah
had died, but they did not know whether he had suffered a heart attack. They also said
that Mr. Smiles had “fucked up.”
       Ms. Pasasouk testified at trial under a conditional grant of immunity.
Ms. Pasasouk admitted she told Sergeant Seymour the foregoing. She denied, however,
that it was true. Ms. Pasasouk testified Sergeant Seymour gave her information about the
burglary and told her to repeat it. Sergeant Seymour said if she implicated defendant, her
children—who had been detained by the Department of Children and Family Services—
would be returned to her. Ms. Pasasouk testified she only told Sergeant Seymour what he
wanted to hear so that she could reclaim custody of her children.
       Sergeant Seymour also interviewed defendant. The interview occurred on the day
following defendant’s arrest. The recorded interview was presented to the jury.
Defendant admitted he was known by a particular moniker. At first defendant claimed he
only held property stolen by others. Eventually, defendant admitted that he burglarized


                                             7
houses. He denied he had ever killed anyone. Defendant asserted he was only the driver
and lookout; he was not the one who set up the burglaries. Defendant admitted driving to
seven or eight burglaries including in Corona, Anaheim Hills, Hidden Hills, Hacienda
Heights or La Puente, Boyle Heights and Rowland Heights. Defendant specifically
acknowledged his participation in the Corona burglary: “[Defendant]: Well, Corona’s
just—which one’s Corona? [¶] [Sergeant Seymour]: Corona’s the one where you
almost got caught. [¶] [Defendant]: Oh, okay.” Defendant admitted a cellular telephone
found at the Corona location was his: “[Defendant]: And the phones. Honestly, only
one of them was mine.” Defendant and his co-perpetrators repeatedly stole cash,
electronics, jewelry and cars, including a Lexus, a Maxima and a Honda Accord.
Defendant named Steven, John Smalls, “Keith,” and “[a] guy named Bethos” as among
the perpetrators of the multiple burglaries. Mr. Smalls handled the jewelry and sold it in
Orange County. Defendant said Steven got caught with the Lexus. Defendant
remembered Steven and “Joseph” driving the Lexus. Defendant also told Sergeant
Seymour he had left the Corona residence just before the detectives arrived. As a result,
defendant’s accomplices thought he had “snitched.” Just after midnight, a text was sent
to the cellular telephone defendant had left behind. The text said: “Where in the hell r u
at? dont even tell me that u knocked out wherever the fuck u at n dont expect me not to
trip if u did, so call me from ur other phone[.]”
       Sergeant Seymour told defendant Ms. Pasasouk had been arrested. Only then did
defendant admit his participation in the Diamond Bar burglary. Defendant said there
were four perpetrators—defendant, Mr. Smalls, “Bethos,” and an otherwise unidentified
Asian man. They gained entry at the rear of the residence. The burglars had been told
there was $60,000 cash in the house. Defendant said the burglars knew Mr. Shah would
be present: “It was done, it was done out of—it was—they knew that person was in the
house. Know what I mean?” Defendant said he had been waiting outside in his truck but
was summoned inside the Shahs’ house. The other burglars wanted defendant to tie up
Mr. Shah. The burglars inside the residence wanted Mr. Shah placed in defendant’s
truck: “And they call . . . they wanted me at first, they wanted me to get the body and


                                              8
load it up. I’m like, fuck, no, man. I ain’t touching that body, man. You know, like—
you call me in the house to load it up? No, man. Know what I mean?”
       At one point, defendant seemed unsure whether Mr. Shah’s abduction or murder
was an objective of the burglary: “They wanted me to tie and take him to the car. . . . I
don’t know if this was the job . . . if this is the reason why we came to the house for.”
Defendant said: “[L]ike they’re like trying, trying to hold somebody down, whatever.
But like, it looked like—the guy wasn’t even—they [wanted to] put him in the truck.”
Upon entering the residence, defendant saw the armoire on the bedroom floor and
Mr. Shah was “mostly on the floor.” Someone was holding Mr. Shah down. Mr. Shah
was alive and moving. He was not tied up. Mr. Shah was on his knees by the bed with
his torso laid out across the bed. It looked like there was a sheet over him. (As Sergeant
Seymour later testified, Mr. Shah was wearing a “lungee”—a linen wrap worn by Indian
men. That information had never been disclosed to the public.) Defendant did not know
who subsequently tied Mr. Shah’s feet and hands: “But like—the last time I know—like
I know somebody—I don’t know who tied him up. I really don’t know that part, sir.
Tied up or not. But I heard—I know that he was trying to resist or something, and
somebody just—you know what I mean—whacked him. But he didn’t like, uh, I guess
whacked to the head or anything. It was just, be quiet. You know what I mean? Type of
thing.” Defendant left the house and returned to his truck where he waited. Defendant
saw someone drive the Shahs’ Mercedes out of their garage.
       Sergeant Seymour testified it was defendant who first mentioned the Mercedes.
Defendant also told Sergeant Seymour, “[T]he [Shahs’] son or somebody either owned or
worked at a hotel or motel.” In fact, the Shahs did own a hotel in Colorado and their son
did work there. Further, defendant’s description of Mr. Shah’s fatal beating was
consistent with Mr. Shah’s injuries. During the interview, defendant, who was nervous,
expressed fears for his safety and that of his family and Ms. Pasasouk. Sergeant Seymour
testified, “He was fearful that if he gave names of certain individuals, especially one
name in question, that that could have repercussions on his safety.” During the
conversation, defendant asked if efforts could be taken to protect Ms. Pasasouk. Sergeant


                                              9
Seymour testified defendant expressed concern about protecting Ms. Pasasouk from a
specific Latino gang. Sergeant Seymour was asked to describe the structure of the gangs
in this state. After referring to the gang mentioned by defendant, Sergeant Seymour
testified: “You have Southern California Hispanic gangs. Depending on who you are
talking to and the context you are talking to, Hispanic gangs can go into a larger or more
organized group, leading up to, and who I believe he was eventually talking about was
the Mexican Mafia.”


                                   f. Forensic evidence


       Deoxyribonucleic acid evidence was taken from the Shahs’ Mercedes and home.
Footprint evidence was also recovered from the Shahs’ backyard. The only possible
match to defendant was deoxyribonucleic acid on a screwdriver found near the armoire in
the Shahs’ bedroom. Defendant and Mr. Shah were both possible contributors to the mix
of deoxyribonucleic acid found on the screwdriver’s handle. There was a 1 in 25 chance
defendant was a contributor. Defendant’s deoxyribonucleic acid was not found on any of
several other tools that were examined in addition to the screwdriver. The one pair of
defendant’s shoes that was examined did not match the recovered footprint evidence.


                            g. Uncharged burglaries evidence


       The prosecution presented evidence that subsequent to Mr. Shah’s killing,
defendant committed several other burglaries. Two of the three targeted homes belonged
to Indian families. On December 21, 2007, a La Verne residence was burglarized. The
perpetrators entered through a bathroom window that faced the backyard. The victim,
Ashok Patel, was a native of India. Mr. Patel testified his house was left in disarray:
“Everything was upside down. Everything, all the items, they were everywhere in the
hallway, on the bed. All the drawers were pulled out from the shel[v]ing.” Jewelry, a
computer, currency, including Indian money, and a Lexus automobile were stolen. The


                                             10
Lexus was subsequently found at Ms. Chai’s Rowland Heights residence. Defendant had
also rented a room in that Rowland Heights home. Ms. Chai testified at trial that in
December 2008 and January 2009, her boyfriend, Steven, was driving a Lexus. He
claimed to have borrowed it. Property from the Patels’ house was found in the January
11, 2008 search of defendant’s Rancho Cucamonga home.
       On December 29, 2007, Bill Carter’s home in Corona was burglarized. Mr. Carter
arrived home while the burglary was in progress. He notified law enforcement
authorities. A door from the garage into the house had been “knocked down.”
Mr. Carter described the condition of his house: “It had been ransacked. The drawers in
the master bedroom had been pulled out and stuff dumped on the . . . bed and the floor.”
According to Mr. Carter, a duffle bag had been filled with old cellular telephones and
“odds and ends like that.” A stolen Subaru had been abandoned in Mr. Carter’s
driveway. Several cellular telephones and two ski masks were in the Subaru. The
discovery of cellular telephones in the Subaru was consistent with information
Ms. Pasasouk gave Sergeant Seymour at their first meeting. Ms. Pasasouk said defendant
had left a cellular telephone in a vehicle abandoned at the scene of a burglary subsequent
to the present crimes. Moreover, as noted above, defendant admitted he had burglarized
the Corona home and had left his cellular telephone in the Subaru. And a jewelry store
receipt in defendant’s name bore the telephone number associated with that cellular
telephone. Defendant had purchased a “promise” or engagement ring for Ms. Pasasouk.
       Also on December 29, 2007, a burglary occurred at Mahesh Bhatt’s Anaheim Hills
home. The burglars entered through a window towards the rear of the house. The house
was left in a mess. Sergeant Luis Correa testified: “[The house] was in complete
disarray. Everything that could be knocked off a shelf, overturned, looked at, looked
through, it was completely ransacked. Mattresses off of the box springs. The rails,
paintings off the walls and . . . torn. So everything is just everywhere.” Three cars were
stolen—a Ford Taurus, a Nissan Maxima and a Honda Accord. On January 11, 2008,
investigators searched the Rancho Cucamonga home where defendant had been staying.
The detectives found, among other items, a California driver’s license for an individual


                                            11
whose last name was Bhatt. Sergeant Seymour had been unaware of the Anaheim Hills
burglary until defendant mentioned it.


                                  B. The Defense Case


                              1. Cellular forensics evidence


       Thomas Blackburn testified he was employed as an expert witness on matters
relating to cellular technology. Mr. Blackburn investigated whether defendant’s cellular
telephone was in the vicinity of the Shah residence at the time of the killing. This was
the cellular telephone found in the Subaru in Corona. Defendant’s cellular telephone was
on and operating at the time. Telephone calls made at 10:28 p.m. and 1:24 a.m.
demonstrated the cellular telephone was then at least five miles from the Shahs’ house.
No calls were made or received in the vicinity of the Mercedes abandoned in West
Covina. Mr. Blackburn conceded there was a 2-hour, 56-minute gap between the last call
made on December 3, 2007, and the first call made on December 4, 2007. The cellular
telephone data also demonstrated it had been regularly used in the Rowland Heights and
Rancho Cucamonga areas.


                                   2. Forensic evidence


       Mehul Anjaria explained the significance of the deoxyribonucleic acid evidence
collected at the Shah home. Mr. Anjaria said in a random test of 25 unrelated people,
about 1 would be included as a possible contributor to the deoxyribonucleic acid mix on
the screwdriver handle. So if you had a population the size of California, 37 million
people, 1.5 million would be possible contributors. Mr. Anjaria concluded, “I would call
this very weak evidence associating [defendant] with the screwdriver.”




                                            12
                               3. False confession evidence


       Richard Angelo Leo is a law professor who also has a Ph.D. in social psychology.
Dr. Leo testified about “how certain people or situations can influence others” to behave.
More specifically, Mr. Leo testified about law enforcement interrogation techniques and
how they can lead to false confessions. Dr. Leo testified that the goal of police
interrogation is not always to get to the truth; rather, it is, ‘[T]o move a witness away
from [an] account the police don’t want to hear to get the account they do want to hear”;
in other words, to obtain statements, admissions or confessions that can be used to obtain
a conviction. Dr. Leo explained that law enforcement agents frequently attempt to
persuade a suspect that he or she has “no way out.” They may tell the suspect he or she
would be better off admitting the crime because the individual will receive leniency. Or
they frame the suspect’s conduct as accidental or committed in self-defense in order to
encourage an admission. The officers may also mischaracterize or falsify facts in an
attempt to obtain incriminating statements. Dr. Leo concluded law enforcement
interrogation techniques may lead to a search for statements supporting a conviction
while ignoring evidence that does not.


                                     III. DISCUSSION


                            A. Felony-Murder Jury Instruction


                                     1. Legal principles


       Defendant was sentenced to life without the possibility of parole pursuant to a
felony murder special circumstance finding under section 190.2, subdivision (a)(17)
which states: “(a) The penalty for a defendant who is found guilty of murder in the first
degree is death or imprisonment in the state prison for life without the possibility of
parole if one or more of the following special circumstances has been found . . . to be


                                             13
true: [¶] . . . [¶] (17) The murder was committed while the defendant was engaged in,
or was an accomplice in, the commission of, attempted commission of, or the immediate
flight after committing, or attempting to commit, the following felonies [including
robbery, burglary and carjacking].” Section 190.2, subdivision (b) discusses the special
circumstance as applied to the actual killer. Section 190.2, subdivisions (c) and (d)
address the special circumstance as applied to persons not the actual killer. Section
190.2, subdivision (c) provides: “Every person, not the actual killer, who with the intent
to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in
the commission of murder in the first degree shall be punished by death or imprisonment
in the state prison for life without the possibility of parole . . . .” (Italics added.) Section
190.2, subdivision (d) states: “Notwithstanding subdivision (c), every person, not the
actual killer, who, with reckless indifference to human life and as a major participant,
aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission
of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of
some person or persons, and who is found guilty of murder in the first degree therefor,
shall be punished by death or imprisonment in the state prison for life without the
possibility of parole . . . .” (People v. Mil (2012) 53 Cal.4th 400, 408-409; People v.
Estrada (1995) 11 Cal.4th 568, 572.)
       The jury was instructed on felony murder and aiding and abetting liability.
However, defendant contends, the Attorney General concedes, and we agree there was
instructional error. The parties do not dispute there was sufficient evidence for a
reasonable jury to conclude defendant was not Mr. Shah’s actual killer and did not have
an intent to kill. Therefore, the trial court erred in refusing defendant’s request for
instruction on the reckless indifference and major participant elements. (§ 190.2, subd.
(d); People v. Mil, supra, 53 Cal.4th at p. 409; see People v. Rountree (2013) 56 Cal.4th
823, 854.) In failing to so instruct, the trial court omitted two essential elements of the
charge. (People v. Mil, supra, 53 Cal.4th at p. 409; see People v. Contreras (2013) 58
Cal.4th 123, 164.)



                                               14
       We apply the harmless error standard of review. (People v. Nunez and Satele
(2013) 57 Cal.4th 1, 45; People v. Mil, supra, 53 Cal.4th at pp. 405, 409-417.) We must
conduct a thorough examination of the record to determine whether, beyond a reasonable
doubt, the jury’s verdict would have been the same absent the instructional error. (People
v. Gonzalez (2012) 54 Cal.4th 643, 666; People v. Mil, supra, 53 Cal.4th at p. 417.) We
must consider whether the evidence was such that a rational factfinder could have
concluded defendant was not a major participant or did not act with reckless indifference.
(People v. Gonzalez, supra, 54 Cal.4th at p. 666; People v. Mil, supra, 53 Cal.4th at p.
418.) In other words, we must consider whether the record supports a reasonable doubt
as to either omitted element. (People v. Gonzalez, supra, 54 Cal.4th at p. 666; People v.
Mil, supra, 53 Cal.4th at p. 418.) The instructional error is harmless if the omitted
elements were uncontested and are supported by overwhelming evidence. (People v.
Gonzalez, supra, 54 Cal.4th at p. 666; People v. Mil, supra, 53 Cal.4th at p. 417; see
People v. Aranda (2012) 55 Cal.4th 342, 367-368; People v. Marshall (1997) 15 Cal.4th
1, 42 [failure to instruct that special circumstance required intent to kill was prejudicial
under the Chapman v. California (1967) 386 U.S. 18, 24 standard because intent to kill
evidence was sufficient but not overwhelming].)


                                    2. Major participant


       The Court of Appeal has held that “major participant” as used in section 190.2,
subdivision (d) does not have a technical meaning peculiar to the law. (People v. Proby
(1998) 60 Cal.App.4th 922, 933; see People v. Smithey (1999) 20 Cal.4th 936, 980-981.)
The Courts of Appeal have defined “major participant” thusly: “As used in the term
“‘major participant,’” the word “‘major’” means “‘notable or conspicuous in effect or
scope’” or “‘one of the larger or more important members . . . of a . . . group.’” (People
v. Proby, supra, 60 Cal.App.4th at pp. 931, 933-934.)” (People v. Smith (2005) 135
Cal.App.4th 914, 928; People v. Hodgson (2003) 111 Cal.App.4th 566, 578 & fn. 23.)



                                              15
“Major participant” does not require that the defendant be a “‘ringleader’” with greater
participation than others. (People v. Proby, supra, 60 Cal.App.4th at p. 934.)
       There was overwhelming evidence defendant was a major participant in the Shah
burglary. Defendant was a member of a burglary conspiracy. He made his living
committing burglaries and other crimes. Defendant and his accomplices had committed a
series of burglaries—four in the month of December 2007 alone. They routinely stole
cash, jewelry, electronics and vehicles. They targeted Indian families. They chose the
Shah home because they knew it contained a safe. They expected to find $60,000 in
cash. Ms. Chai overheard defendant talking to Steven, her boyfriend. They discussed
defendant’s failed attempt to access the safe. Moreover, defendant told both
Ms. Pasasouk and Ms. Chai he had committed the Shah burglary. Defendant admitted
during those conversations assaulting Mr. Shah. After the assault, Mr. Shah stopped
moving and died.
       And, in the immediate aftermath of the crime, Ms. Pasasouk overheard defendant
and Mr. Phong talking about how Mr. Shah had died. In addition, defendant had a key to
the Shahs’ stolen Mercedes and he knew its location. Even if the jurors disbelieved
Ms. Pasasouk and Ms. Chai, defendant, when questioned after his arrest, admitted in
some detail his participation in the burglary and homicide. The jury heard a recording of
that interview. Defendant described how the burglars had gained entrance to the house.
He knew the victims’ son worked for a hotel. He admitted being inside the house. He
admitted observing that Mr. Shah had been assaulted. When interviewed by Sergeant
Seymour, defendant described why Mr. Shah was killed: “I know that he was trying to
resist or something, and something just - you know what I mean - whacked him. But he
didn’t like, uh, I guess whacked to the head or anything. It was just, be quiet.”
Defendant described an assault that was consistent with Mr. Shah’s blunt force trauma.
He knew the Mercedes had been stolen. Further, there was a 1 in 25 chance defendant’s
deoxyribonucleic acid was on a screwdriver found in the Shah’s bedroom. While
arguably less than significant in a vacuum, this was material evidence of guilt when
viewed in light of the record as a whole. Defendant participated in the burglary from its


                                             16
commencement until he and his accomplices made their escape. When he learned he was
suspected of burglary and murder, defendant attempted to flee. This was overwhelming
evidence defendant was a major participant within the meaning of section 190.2,
subdivision (d). No rational juror could have a reasonable doubt whether defendant was
a major participant.
       In support of his argument to the contrary, defendant’s points to a jury question
raised the morning of the day the jury returned its verdict. The jury inquired, “Would it
be unreasonable to go against a charge in this case of [first] degree murder because there
is no other charge available, such as manslaughter?” The trial court responded: “You
must follow the evidence and the law as given to you in the instructions.” Defendant
asks us to conclude the jury posed the question because it was unconvinced defendant
was a major participant in the burglary. However, defendant’s argument is sheer
speculation. (See People v. Boyce (2014) 59 Cal.4th 672, 716; People v. Tamborrino
(1989) 215 Cal.App.3d 575, 587.)


                          3. Reckless indifference to human life


       The language “reckless indifference to human life” in section 190.2, subdivision
(d), derives from the opinion in Tison v. Arizona (1987) 481 U.S. 137, 158, and footnote
12. (People v. Estrada, supra, 11 Cal.4th at p. 575.) In Tison, the United States Supreme
Court held “[R]reckless disregard for human life” means “knowingly engag[es] in
criminal activities known to carry a grave risk of death . . . .” (Tison v. Arizona, supra,
481 U.S. at p. 157; see Ring v. Arizona (2002) 536 U.S. 584, 594.) The United States
Supreme Court gave two examples: “[S]ome nonintentional murderers may be among
the most dangerous and inhumane of all—the person who tortures another not caring
whether the victim lives or dies, or the robber who shoots someone in the course of the
robbery, utterly indifferent to the fact that the desire to rob may have the unintended
consequence of killing the victim as well as taking the victim’s property. This reckless
indifference to the value of human life may be every bit as shocking to the moral sense as


                                             17
an ‘intent to kill.’” (Tison v. Arizona, supra, 481 U.S. at p. 157; see Schad v. Arizona
(1991) 501 U.S. 624, 644.)
       In People v. Estrada, supra, 11 Cal.4th at pages 577-578, our Supreme Court held
“reckless indifference to human life” does not have a technical meaning peculiar to the
law. Rather, our Supreme Court explained: “[It] is commonly understood to mean that
the defendant was subjectively aware that his or her participation in the felony involved a
grave risk of death. The common meaning of the term ‘indifference,’ referring to ‘the
state of being indifferent,’ is that which is ‘regarded as being of no significant importance
or value.’ (Webster’s New Internat. Dict. (3d ed. 1981) p. 1151, col. 1.) To regard
something, even to regard it as worthless, is to be aware of it. (See id. at p. 1911, col. 1
[‘regard’ is synonymous with ‘consider, evaluate, judge’].” (People v. Estrada, supra, 11
Cal.4th at p. 577; see People v. Miranda (2011) 199 Cal.App.4th 1403, 1421.) Our
Supreme Court concluded, “[T]he generally accepted meaning of the phrase, ‘reckless
indifference to human life,’ in common parlance amply conveys to the jury the
requirement of a defendant’s subjective awareness of the grave risk to human life created
by his or her participation in the underlying felony.” (People v. Estrada, supra, 11
Cal.4th at p. 578; accord, People v. Mil, supra, 53 Cal.4th at p. 417 [“reckless
indifference to human life” means the defendant knowingly engaged in criminal conduct
with subjective awareness the activity involved a grave risk of death]; see, e.g., People v.
Lopez (2011) 198 Cal.App.4th 1106, 1117; People v. Smith, supra, 135 Cal.App.4th at
pp. 927-928.)
       There was overwhelming evidence defendant acted with reckless indifference to
human life. Defendant was one of four perpetrators of the present crimes. Defendant
admitted to Ms. Pasasouk tying up, holding down and kicking Mr. Shah several times.
Defendant told Ms. Pasasouk and Ms. Chai he thought he had killed somebody.
Defendant and the other burglars beat Mr. Shah. Enough force was used to fracture
Mr. Shah’s vertebrae, ribs and spine. Defendant observed that Mr. Shah stopped moving.
Defendant thought Mr. Shah might have suffered a heart attack. Defendant nevertheless



                                             18
left Mr. Shah bound and lying face down on the floor. Defendant made no attempt to
assist Mr. Shah.
       Even when viewed in a light favorable to defendant, albeit discounting his false
confession claim, the evidence established defendant’s subjective awareness of a grave
risk of death. When interviewed, defendant admitted observing that Mr. Shah had been
assaulted and was incapacitated. Defendant knew Mr. Shah had resisted and had been
“whacked.” Defendant saw Mr. Shah “mostly on the floor.” Mr. Shah was on his knees
with his upper torso sprawled across the bed. Someone was trying to hold Mr. Shah
down. Defendant said, “But like, it looked like—the guy wasn’t even—they [wanted to]
put him in the truck.” Defendant’s accomplices wanted defendant to bind Mr. Shah and
remove “the body” from the house. Instead, defendant returned to his truck. This act of
leaving the residence resulted in leaving Mr. Shah in the hands of defendant’s assaultive
accomplices. Defendant made no attempt to summon help. No rational juror could have
a reasonable doubt whether defendant acted with reckless disregard for human life.
       This case is distinguishable from People v. Mil, supra, 53 Cal.4th at pages 417-
419. In Mil, our Supreme Court considered whether a failure to instruct on the major
participant and reckless indifference elements of felony murder was harmless error. Our
Supreme Court found there was substantial evidence the defendant had participated in a
burglary and robbery in a motel room and had stabbed and killed the victim. However,
our Supreme Court found there was also evidence the defendant had left the motel room
ahead of his girlfriend. She then had an opportunity, unbeknownst to the defendant, to
stab and kill the victim. The Supreme Court concluded the evidence supported a finding
the defendant was unaware that: his girlfriend planned to use any force; that she was
armed with a knife; or that she stabbed the victim. Therefore, a rational juror could have
a reasonable doubt whether the defendant was subjectively aware of a grave risk of death
when he participated in the burglary and robbery. The instructional error was not
therefore harmless beyond a reasonable doubt. (Id. at p. 419.) Unlike the defendant in
Mil, defendant cannot claim ignorance of Mr. Shah’s predicament. Defendant admitted



                                            19
perceiving Mr. Shah’s condition. And defendant understood his accomplices’ assaultive
intent and conduct.


                             B. Evidence Suppression Motion


       In the trial court, defendant moved to suppress: “any and all evidence illegally
seized from [defendant] and/or his property”; “any statements, observations and evidence
which was [the] product of the original illegal taking of any property . . . which was
seized without a warrant”; and “[i]n particular, . . . any computer evidence . . . .”
(Emphasis omitted.) Defendant explained: “There were two . . . computers seized . . . .
One was seized at a hotel and the other at [defendant’s] believed to be residence.” On
appeal, defendant argues the trial court improperly denied his motion to suppress a
computer and “other items” seized from the hotel room. He also challenges the failure to
suppress evidence obtained from his cellular telephone. The later issue was never raised
in the trial court. As a result it was forfeited. (§ 1538.5, subd. (m); People v. Williams
(1999) 20 Cal.4th 119, 136; People v. Davis (2008) 168 Cal.App.4th 617, 629.)
       A section 1538.5 motion must be made in writing and must specifically list the
items of property or evidence sought to be suppressed. (§ 1538.5, subd. (a)(2).) The only
item defendant specifically identified as having been seized from the hotel room was a
computer. We need not determine whether the trial court’s suppression denial ruling was
in error. Even if there was a violation of defendant’s Fourth Amendment rights,
admission of the challenged evidence was harmless beyond a reasonable doubt under
Chapman v. California, supra, 386 U.S. at page 24. (People v. Moore (2011) 51 Cal.4th
1104, 1128-1129; People v. Prince (2007) 40 Cal.4th 1179, 1250.) The primary issue at
trial was the extent of defendant’s involvement in the burglary and murder. The evidence
on the computer seized at the hotel tended to corroborate evidence defendant and his
accomplices targeted Indian homes. There is no showing the evidence of the computer’s
existence in the hotel room or its content had any significant impact on the jury’s
determination of the central issues at trial. In light of the overwhelming evidence of


                                             20
defendant’s guilt, any error was harmless beyond a reasonable doubt. (See People v.
Moore, supra, 51 Cal.4th at pp. 1128-1129; People v. Prince, supra, 40 Cal.4th at p.
1250.)


                             C. Uncharged Burglaries Evidence


                                 1. Defendant’s contention


         Defendant asserts it was prejudicial error to admit uncharged burglaries evidence.
(Evid. Code, § 1101, subd. (b).) Defendant argues there was insufficient uniqueness and
similarity to support admission. We find no abuse of discretion.


                               2. Controlling legal principles


         Other crimes evidence is inadmissible to prove a defendant’s conduct on a
particular occasion or criminal disposition. (Evid. Code, § 1101, subd. (a); People v.
Harris (2013) 57 Cal.4th 804, 841; People v. Thomas (2011) 52 Cal.4th 336, 354.) But it
may be admitted to prove some other fact such as intent, identity or common design.
(Evid. Code, § 1101, subd. (b); People v. Harris, supra, 57 Cal.4th at p. 841; People v.
Thomas, supra, 52 Cal.4th at p. 354.) The prosecutor’s argument paralleled these limited
purposes for which other crimes evidence may be considered. The necessary degree of
similarity between the charged and uncharged crimes depends on the element sought to
be proved. (People v. Ewoldt (1994) 7 Cal.4th 380, 402; accord, People v. Harris, supra,
57 Cal.4th at p. 841; People v. Thomas, supra, 52 Cal.4th at p. 355.) Our review is for an
abuse of discretion. (People v. Harris, supra, 57 Cal.4th at p. 841; People v. Thomas,
supra, 52 Cal.4th at pp. 354-355.) Our Supreme Court has explained: “A court abuses
its discretion when its ruling ‘falls outside the bounds of reason.’ [Citations.].” (People
v. Thomas, supra, 52 Cal.4th at pp. 354-355; People v. Carter (2005) 36 Cal.4th 1114,
1149.) The trial court did not abuse its discretion.


                                             21
                                          3. Intent


       The least degree of similarity is required to prove intent. Our Supreme Court has
held, “In order to be admissible to prove intent, the uncharged misconduct must be
sufficiently similar to support the inference that the defendant, ‘“probably harbor[ed] the
same intent in each instance.” [Citation.]’ (People v. Robbins [(1988)] 45 Cal.3d 867,
879.)” (People v. Ewoldt, supra, 7 Cal.4th at p. 402; accord, People v. Harris, supra, 57
Cal.4th at p. 841; People v. Thomas, supra, 52 Cal.4th at p. 355.) When interviewed after
his arrest, defendant admitted he had committed a number of burglaries. In each of the
prior cases, as in the present case, the burglars took jewelry, electronics, cash and
vehicles. Defendant admitted being present in the Shahs’ home. The other crimes
evidence corroborated defendant’s admissions. It supported a reasonable inference
defendant’s intent in the present case was to commit a similar burglary. The other crimes
evidence also countered defendant’s attempts to downplay his role in the present
burglary. It undermined his effort to portray himself as a mere driver and lookout.


                                4. Common design or plan


       A greater degree of similarity is required to prove a common design or plan.
(People v. Thomas, supra, 52 Cal.4th at p. 355; People v. Ewoldt, supra, 7 Cal.4th at p.
402.) Our Supreme Court has explained: “To establish the existence of a common
design or plan, the common features must indicate the existence of a plan rather than a
series of similar spontaneous acts, but the plan thus revealed need not be distinctive or
unusual. . . . . [E]vidence that the defendant has committed uncharged criminal acts that
are similar to the charged offense may be relevant if these acts demonstrate
circumstantially that the defendant committed the charged offense pursuant to the same
design or plan he or she used in committing the uncharged acts. Unlike evidence of
uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need
only exist to support the inference that the defendant employed that plan in committing


                                             22
the charged offense. (See People v. Ruiz [(1988)] 44 Cal.3d 589, 605-606.)” (People v.
Ewoldt, supra, 7 Cal.4th at p. 403; accord, People v. Edwards (2013) 57 Cal.4th 658,
712.)
        The manner in which the other burglaries and the present burglary were committed
was sufficiently similar to support an inference defendant committed the present burglary
pursuant to the same plan. The charged and uncharged burglaries were all committed in
the same month, December 2007. All but one was committed against an Indian family.
In each case the perpetrators entered through a door or window in an area not visible
from the street. They ransacked the houses. They stole jewelry, electronics, cash and
vehicles.


                                          5. Identity


        The greatest degree of similarity is required for the uncharged crimes evidence to
be relevant to prove identity. (People v. Harris, supra, 57 Cal.4th at p. 841; People v.
Ewoldt, supra, 7 Cal.4th at p. 403.) As our Supreme Court has held: “For identity to be
established, the uncharged misconduct and the charged offense must share common
features that are sufficiently distinctive so as to support the inference that the same person
committed both acts. (People v. Miller [(1990)] 50 Cal.3d 954, 987.) ‘The pattern and
characteristics of the crimes must be so unusual and distinctive as to be like a signature.’
[Citation.]” (People v. Ewoldt, supra, 7 Cal.4th at p. 403.) The distinctive features of the
uncharged and charged burglaries were threefold. First, the burglars targeted Indian
families. Second, they ransacked the houses leaving little untouched. Third, they stole
vehicles. These unusual features were sufficient to support an inference the same person
or persons committed all of the crimes.




                                              23
                                  D. The Gonzalez Matter


       Prior to his first trial, defendant brought a motion to: “[P]resent the testimony of
Herbert Gonzales, a former defendant in a [murder] case (dismissed July, 2006 on motion
of the People) concerning the modus operandi of Los Angeles County Sheriff’s
[Sergeant] Randall Seymour in his mode of interrogation, intimidation, fabrication and
exploitation—all in an effort to make it appear to a Court—at some later time—that
[Sergeant] Seymour obtained a freely given, voluntary confession, or statements against
one’s penal interest, in compliance with both the requirements that a confession be free
and voluntary and comply with the mandate of Miranda when in fact, it does not.”
Defendant represented that Mr. Gonzalez was under subpoena and available to testify.
The trial court denied the motion. Prior to the present trial, defendant sought permission
to cross-examine Sergeant Seymour about the Gonzalez matter. Defendant asked the trial
court to take judicial notice of newspaper articles discussing the Gonzalez case. The trial
court declined to take judicial notice and denied defendant’s motion. On appeal,
defendant argues the trial court abused its Evidence Code section 352 discretion and
violated his confrontation and fair trial rights under the state and federal Constitutions.
Defendant does not raise any issue with respect to the trial court’s judicial notice ruling.
       Defendant forfeited any claim in the present appeal with respect to testimony by
Mr. Gonzalez. Defendant did not move to present Mr. Gonzalez’s testimony in the
present trial. Defendant made no showing Mr. Gonzalez was under subpoena or
otherwise available to testify. Defendant cannot now claim the trial court erred in
refusing to allow Mr. Gonzalez to testify. (See People v. Dowl (2013) 57 Cal.4th 1079,
1087-1089; People v. Thompson (2010) 49 Cal.4th 79, 129-130.)
       We review the trial court’s Evidence Code section 352 ruling in the present trial
for an abuse of discretion. (People v. Clark (2011) 52 Cal.4th 856, 893; People v.
Williams (2008) 43 Cal.4th 584, 634-635.) As our Supreme Court explained in Williams:
“A trial court’s discretionary ruling under [Evidence Code section 352] ‘“must not be
disturbed on appeal except on a showing that the court exercised its discretion in an


                                              24
arbitrary, capricious or patently absurd manner that resulted in a miscarriage of justice.
[Citations.]”’ (People v. Rodrigues [(1994)] 8 Cal.4th [1060,] 1124-1125.)” (People v.
Williams, supra, 43 Cal.4th at pp. 634-635.) We find no such abuse of discretion in
concluding the probative value was not outweighed by potential prejudicial effect. First,
in the Gonzalez matter, there apparently was exculpatory deoxyribonucleic acid evidence
lending credence to a false confession claim. There was no such exculpatory evidence in
the present case. Second, defendant’s interview was recorded. Mr. Gonzalez’s was not.
Third, defendant presented testimony from Dr. Lee as to the aim and effect of law
enforcement interrogation techniques. Fourth, the trial court could reasonably conclude
reference to the isolated Gonzalez matter in cross-examination of Sergeant Seymour
would tend to confuse the jury, cause it to speculate as to the settlement, and take up
undue time.
       Having found no abuse of discretion, we turn to defendant’s constitutional claims.
(People v. Moore (2011) 51 Cal.4th 386, 407, fn. 6.) We find no constitutional fair trial
or confrontation violation. This is because, “‘“[A]s a general matter, the ordinary rules of
evidence do not impermissibly infringe on the accused’s [state or federal constitutional]
right to present a defense.” [Citations.]’ (People v. Robinson (2005) 37 Cal.4th 592,
626-627, fn. omitted.)” (People v. Prince, supra, 40 Cal.4th at p. 1245.) There is no
showing here that the trial court’s Evidence Code section 352 ruling infringed on
defendant’s constitutional rights.
       Defendant makes passing reference on appeal to a request to discover information
as to other homicide cases investigated by Sergeant Seymour. This argument is
insufficiently developed to warrant discussion. (See People v. Fuiava (2012) 53 Cal.4th
622, 726; People v. Barnett (1998) 17 Cal.4th 1044, 1182; People v. Bonin (1989) 47
Cal.3d 808, 857, fn. 6.) We note that we previously denied a mandate petition as to the
trial court’s denial of defendant’s discovery request. We ruled, “Defendant, whose
overbroad motion is unsupported by any relevant evidence, has failed to demonstrate an
abuse of discretion occurred. [Citations.]” (Yi v. Superior Court (Apr. 21, 2011,
B232421) [nonpub. order].) We reiterate that analysis today.


                                             25
                               E. The Confidential Informant


        Prior to the first trial in this case, on February 3, 2010, defendant filed a motion
for confidential informant disclosure. Defendant relied on information from the sheriff’s
“murder book” as follows. On January 8, 2008, Sergeant Seymour spoke with a narcotics
detective. The narcotics detective told Sergeant Seymour an anonymous informant had
identified defendant as Mr. Shah’s murderer. In identifying the murderer, the informant
referred to defendant’s moniker. The anonymous informant also said “Nate” and “Cups,”
two brothers, were with defendant at the time. Later that day Sergeant Seymour spoke
with the anonymous informant. The informant said Mr. Phong, Steven and defendant
committed burglaries. Mr. Phong and Steven, but not defendant, were staying at a house
in Philips Ranch. There were guns, drugs and stolen property in the Philips Ranch
residence. Prior to the foregoing conversation, defendant argues there was no connection
between him and the murder. The trial court denied defendant’s motion. On appeal,
defendant argues: “That information constituted the first known connection between
[defendant] and the murder of Shah, and concerned the basic issue of [defendant’s] guilt
or innocence, including the requirement . . . that [defendant] be a ‘major participant’ in
the burglaries . . . .”
        A public entity has a privilege to refuse to disclose a confidential informant’s
identity when the need to preserve confidentiality outweighs the need for disclosure.
(Evid. Code, § 1041; People v. Hobbs (1994) 7 Cal.4th 948, 958-959.) The privilege
gives way only when it appears the informant is a material witness on the question of
guilt or innocence and nondisclosure would result in a fair trial denial. (People v. Lawley
(2002) 27 Cal.4th 102, 159; People v. Borunda (1974) 11 Cal.3d 523, 527; People v.
Hobbs, supra, 7 Cal.4th at p. 959; People v. Navarro (2006) 138 Cal.App.4th 146, 163.)
Disclosure is required upon an adequate showing an informant: participated in the crime
or was an eyewitness to it; is a witness to circumstances preceding the crime; or
otherwise can give evidence that might exonerate the defendant or offer an affirmative
defense. (People v. Lawley, supra, 27 Cal.4th at p. 159; Twiggs v. Superior Court (1983)


                                              26
34 Cal.3d 360, 365; Price v. Superior Court (1970) 1 Cal.3d 836, 844.) The burden is on
the defendant to demonstrate a reasonable possibility the informant could give potentially
exculpatory evidence. (People v. Lawley, supra, 27 Cal.4th at pp. 159-160; People v.
Borunda, supra, 11 Cal.3d at p. 527.) Moreover, “The defendant bears the burden of
adducing ‘“‘some evidence’”’ on this score. (People v. Gordon [(1990)] 50 Cal.3d
[1223,] 1246[, overruled on a different point in People v. Edwards (1991) 54 Cal.3d 787,
835].)” (People v. Lawley, supra, 27 Cal.4th at pp. 159-160.) The necessary showing
requires more than speculation or a mere suspicion the information will be relevant and
helpful to the defense or essential to a fair trial. (Davis v. Superior Court (2010) 186
Cal.App.4th 1272, 1276; People v. Luera (2001) 86 Cal.App.4th 513, 526.) It requires at
least a reasonable possibility. (Ibid.) Our review is for an abuse of discretion. (People v.
Hobbs, supra, 7 Cal.4th at p. 976; Davis v. Superior Court, supra, 186 Cal.App.4th at p.
1277.) There was no abuse of discretion. Defendant made no showing of even a
reasonable possibility the confidential informant was in any position to offer exculpatory
evidence or support an affirmative defense.


                                   F. Cumulative Error


       Defendant contends he is entitled to reversal because of cumulative error. We find
no prejudicial legal error. Therefore, we reject defendant’s argument the cumulative
effect of all the errors requires reversal. (People v. Jones (2013) 57 Cal.4th 899, 981;
People v. Edwards, supra, 57 Cal.4th at p. 746.)


                           G. Peace Officer Personnel Records


       Defendant requested that we independently review the record of the trial court’s in
camera hearing for review of peace officer personnel records. (People v. Mooc (2001) 26
Cal.4th 1216, 1228-1232; Pitchess v. Superior Court (1974) 11 Cal.3d 531, 535.) The
trial court found no complaints responsive to defendant’s motion. We have reviewed the


                                              27
transcripts of the trial court’s April 15, 2010 in camera hearing. No abuse of discretion
occurred. (People v. Myles (2012) 53 Cal.4th 1181, 1209; People v. Mooc, supra, 26
Cal.4th at pp. 1228, 1232.)


                                      H. Sentencing


                              1. Cruel and unusual punishment


       Defendant contends his life-without-parole sentence as applied to him is so
disproportionate that it constitutes cruel and unusual punishment under the state and
federal Constitutions. Defendant asserts he did not participate in the killing. Defendant
denies intending that Mr. Shah die. Defendant claims he did not want to be involved in
moving Mr. Shah from the scene of the killing. Defendant argues he was not a major
participant in the burglary and did not act with reckless indifference to human life.
Defendant describes his liability as “entirely derivative and coincidental.” Defendant
further asserts 16 states impose less severe punishment for felony murder. We disagree.
       The Eighth Amendment to the United States Constitution prohibits cruel and
unusual punishment. The Eighth Amendment does not require strict proportionality
between the crime and sentence; rather, it forbids sentences that are grossly
disproportionate to the severity of the crime. (Ewing v. California (2003) 538 U.S. 11,
23-24 (lead opn., O’Connor, J.) (Ewing); see In re Coley (2012) 55 Cal.4th 524, 529.)
Three factors are considered: the gravity of the offense and the harshness of the penalty;
sentences imposed for other crimes in the same jurisdiction; and sentences imposed for
the same crime in other jurisdictions. (Ewing, supra, 538 U.S. at p. 22; In re Coley,
supra, 55 Cal.4th at p. 540.) Here, defendant addresses only the first and third factors.
       A sentence may be cruel or unusual under the California Constitution, article I,
section 17. Such a sentence though must be so disproportionate to the crime that it
shocks the conscience and offends fundamental notions of human dignity. (People v.
Virgil (2011) 51 Cal.4th 1210, 1287-1288; In re Lynch (1972) 8 Cal.3d 410, 424.) We


                                             28
consider the nature of the offense, the offender and the particular circumstances of the
crime. (People v. Gonzales (2012) 54 Cal.4th 1234, 1300; People v. Dillon (1983) 34
Cal.3d 441, 478 (Dillon).) Further, because choosing appropriate criminal penalties is a
legislative function, a court must not intervene unless the prescribed punishment is out of
proportion to the crime. (Ibid.; People v. Felix (2003) 108 Cal.App.4th 994, 999-1000.)
       The sentence imposed on defendant was not cruel or unusual under the state or
federal Constitutions. Defendant participated in a burglary during which Mr. Shah was
killed. Defendant attempts to downplay his involvement. However, defendant was a
member of a burglary conspiracy that had committed multiple burglaries. The conspiracy
targeted Indian families. The perpetrators routinely stole cash, jewelry, electronics and
vehicles. During the present burglary, defendant, at a minimum, tied up Mr. Shah. There
is evidence defendant held down and kicked Mr. Shah. Mr. Shah stopped moving.
Defendant thought Mr. Shah might have had a heart attack. Defendant later spoke to
Ms. Pasasouk. Defendant expressed fear that Mr. Shah may have been killed.
Defendant’s accomplices wanted defendant to move Mr. Shah’s body. Defendant
refused. Defendant left the Shah residence without taking any steps to aid Mr. Shah.
Defendant took no steps to preserve Mr. Shah’s life. Mr. Shah was found face down on
his bedroom floor with his hands and feet bound. Mr. Shah had suffered multiple blunt
force injuries. His spine, vertebrae and ribs had been fractured.
       In the years preceding the present crime, defendant had been convicted of several
felonies. On March 13, 2002, defendant was convicted of assault with a deadly weapon
other than a firearm (§ 245, subd. (a)(1)) and placed on probation. However, on
December 3, 2003, defendant was arrested for first degree burglary (§ 459) and burglary
tools possession (§ 466). And on February 18, 2004, defendant was arrested for felony
vehicle theft (Veh. Code, § 10851, subd. (a)). On March 16, 2004, defendant received a
16-month sentence consecutive to his burglary sentence. Defendant’s probation in his
assault case was revoked and on September 16, 2004, defendant was sentenced to two
years in state prison. On February 10, 2005, defendant was convicted of burglary and
sentenced to two years in state prison. His sentence was concurrent with the assault case.


                                            29
Defendant was paroled on September 23, 2005. He was discharged from parole on
September 13, 2007. Less than three months later, defendant committed the present
crimes. When interviewed after his arrest, defendant admitted having committed seven
or eight additional burglaries.
       Defendant relies on Enmund v. Florida (1982) 458 U.S. 782, 784 and Dillon,
supra, 34 Cal.3d at page 480. In Enmund, a robbery at a farmhouse ended in a murder.
But there was no evidence the defendant was present at the farmhouse when the murder
occurred. It appeared, instead, the defendant was the driver who waited in a car by the
side of the road a few hundred feet away. (Enmund v. Florida, supra, 458 U.S. at pp.
783-788.) The United States Supreme Court found the defendant did not personally kill
or attempt to kill. The record did not warrant a finding he had any intention of
participating in or facilitating a murder. And he merely aided and abetted a robbery
during which a murder was committed. The United States Supreme Court concluded that
under those circumstances the death penalty was impermissible under the Eighth
Amendment. (Enmund v. Florida, supra, 458 U.S. at p. 798.) The circumstances of the
present case are not comparable. Here, there was overwhelming evidence defendant was
not merely a driver but fully participated in the burglary during which Mr. Shah was
murdered. Enmund is inapplicable under the facts of our case. (People v. Contreras,
supra, 58 Cal.4th at pp. 162-164; People v. Young (2005) 34 Cal.4th 1149, 1205.) And
this case does not involve the death penalty, an important element of the Enmund
analysis. (See People v. Contreras, supra, 58 Cal.4th at p. 163; People v. Letner and
Tobin (2010) 50 Cal.4th 99, 192-193; People v. Lancaster (2007) 41 Cal.4th 50, 81-90.)
       In Dillon, a 17-year-old and several others went to a marijuana farm to steal some
marijuana. The defendant carried a .22 semi-automatic rifle. Some of his friends were
armed with shotguns. They encountered an armed security guard. One of the
defendant’s companions accidentally fired his shotgun. The defendant began rapidly
firing his weapon. The defendant fatally shot the guard. Our Supreme Court concluded
the punishment for first degree murder was cruel and unusual under the circumstances
and reduced the judgment to second degree murder. The court reasoned that when the


                                            30
defendant heard gunshots, he thought one of his friends had been shot, and he thought he
would be next. (People v. Dillon, supra, 34 Cal.3d at pp. 482-483.) In addition, there
was evidence the defendant was extremely immature and exercised poor judgment. (Id.
at p. 483.) Our Supreme Court noted that because the defendant was a minor, he would
have received the same sentence as that the trial court imposed even if he had committed
premeditated and deliberate first degree murder. (Id. at p. 487.) There are no comparable
circumstances in the present case. Defendant, a recidivist, was not a minor. There was
no evidence he was immature or exercised poor judgment. There was no evidence he
acted out of fear he would be shot or otherwise harmed. Dillon is not controlling.
(People v. Rhodes (2005) 126 Cal.App.4th 1374, 1389; People v. Valdez (2005) 126
Cal.App.4th 575, 581; see Witkin & Epstein, Cal. Criminal Law (4th ed. 2012)
Punishment, § 283, pp. 385-386.)
       Additionally, as the Attorney General points out, a number of other jurisdictions
authorize a life-without-parole sentence for felony murder. These include: Colorado
(Colo. Rev. Stat. §§ 18-3-102, 18-1.3-401; Georgia (Ga. Code § 16-5-1; Iowa (Iowa
Code §§ 702.11(1), 707.2(1)(b), (2), 902.1; Louisiana (La. Rev. Stat. § 14:30);
Mississippi (Miss. Code Ann. §§ 97-3-19(2)(e), 97-3-21(3)); Nevada (Nev. Rev. Stat.
§ 200.030(1)(b), (4)(b)); North Dakota (N.D. Cent. Code, §§ 12.1-16-01(1)(c), 12.1-32-
01(1)); Oklahoma (Okla. Stat. Ann. 21, §§ 701.7(B), 701.9(A)); and Tennessee (Tenn.
Code Ann., § 39-13-202(a)(2), (c)). Other jurisdictions treat the aggravated
circumstances in our case as a matter requiring a life sentence without the possibility of
parole. The sentence of life without the possibility of parole violates no provision of the
state or federal Constitutions.


                          2. The prior prison term enhancements


       We asked the parties to brief the question whether the trial court was required to
either impose or strike (§ 1385, subd. (a)), rather than stay, the section 667.5, subdivision
(b) prior prison term enhancements. (People v. Langston (2004) 33 Cal.4th 1237, 1241;


                                             31
People v. Garcia (2008) 167 Cal.App.4th 1550, 1561; see People v. Johnson (2006) 145
Cal.App.4th 895, 908, fn. 20.) The parties agree. The failure to either impose or strike a
prior prison term enhancement is a jurisdictional error that may be corrected for the first
time on appeal. (People v. Garcia, supra, 167 Cal.App.4th at p. 1562; In re Renfrow
(2008) 164 Cal.App.4th 1251, 1254.) Upon remittitur issuance, the trial court is to
exercise its discretion whether to impose or strike the prior prison term enhancements
(§ 667.5, subd. (b)) as to each of counts 1 and 3 through 6.


                                    IV. DISPOSITION


       The judgment staying the Penal Code section 667.5, subdivision (b) prior prison
term enhancements is reversed. Upon remittitur issuance, the trial court is to exercise its
discretion whether to impose or strike the prior prison term enhancements (§ 667.5, subd.
(b)) as to each of counts 1 and 3 through 6. The judgment is affirmed in all other
respects.
                            NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                            TURNER, P.J.


I concur:




       KRIEGLER, J.




                                             32
MOSK, J., Concurring


       I concur.
       In Neder v. United States (1999) 527 U.S. 1 (Neder), the United States Supreme
Court held that a jury instruction that erroneously omits elements of the offense is subject
to a harmless error analysis. The harmless error standard is governed in such a case by
Chapman v. California (1967) 386 U.S. 18. (See Washington v. Recuenco (2006) 548
U.S. 212, 213.) Justice Scalia dissented in Neder saying, “I believe that depriving a
criminal defendant of the right to have the jury determine his guilt of the crime charged—
which necessarily means his commission of every element of the crime charged—can
never be harmless.” (Neder, supra, 527 U.S. at p. 30.) Although I believe Justice
Scalia’s point has merit (see also People v. Flood (1998) 18 Cal.4th 470, 522 (Mosk, J.,
dissenting), I am bound to follow the California Supreme Court decision following
Neder. (See People v. Aranda (2012) 55 Cal.4th 342; People v. Gonzalez (2012) 54
Cal.4th 643, 663; People v. Mil (2012) 53 Cal.4th 400; People v. Chun (2009) 45 Cal.4th
1172; People v. Concha (2010) 182 Cal.App.4th 1072, 1085-1089.)
       I concur in the judgment.




                                   MOSK, J.
