Filed 7/11/16 P. v. Mendez CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                      E064249

v.                                                                      (Super.Ct.No. FWV1303835)

DAVID MENDEZ,                                                           OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Mary E. Fuller,

Judge. Affirmed with directions.

         Richard A. Levy, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, and Allison

V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
                                               I

                                     INTRODUCTION

       Defendant David Mendez and his cohort, Jorge Esteban Cisneros, entered a check-

cashing business where Cisneros shot the clerk in the chest while defendant seized $600

from the cash drawers as the victim lay dying. Security cameras recorded the

coordinated attack. Defendant claimed Cisneros forced him to participate by threatening

him at gunpoint.

       The jury rejected the defense of duress and convicted defendant of premeditated

murder and second degree robbery. (Pen. Code, §§ 187, subd. (a), and 211.)1 The jury

also found true, with respect to both counts, that a principal was armed with a firearm

within the meaning of section 12022, subdivision (a)(l), and, with respect to count 1, that

the murder was committed while engaged in the commission of a robbery within the

meaning of section 190.2, subdivision (a)(17). The court sentenced defendant to life in

prison without the possibility of parole.2

       On appeal, the People agree with defendant’s argument that the trial court failed to

instruct the jury properly, based on CALCRIM No. 703, on the elements of the special

circumstance that defendant committed the murder while engaged in the commission of a

robbery, a finding that permitted the court to impose life in prison without parole.

However, the People argue the error was harmless because of overwhelming evidence

       1   All statutory references are to the Penal Code unless stated otherwise.

       2 After being convicted, Cisneros was also sentenced to life without parole on
April 14, 2016.

                                              2
defendant intended to kill or was a major participant who acted with reckless indifference

to human life.

       Defendant next argues that the trial court failed to instruct the jury sua sponte on

the defense of necessity and erred in admitting impeachment evidence and other types of

incriminating evidence. We reject these contentions. Finally, the People agree with

defendant that his parole revocation restitution fine should be stricken as an unauthorized

sentence because defendant was sentenced to life without parole. Subject to this

modification, we affirm the judgment.

                                              II

                                STATEMENT OF FACTS

A. Prosecution’s Evidence

       Defendant and Cisneros were good friends and coworkers at Clariant

Corporation.3 Cisneros was a gun enthusiast. Coworkers described him as aggressive

and obnoxious. In April 2013, Jose Mendez, a coworker, noticed defendant and Cisneros

handling a handgun in the locker room. When Jose asked them why they were “doing

stupid stuff,” defendant stuffed the gun in his waistband under his shirt. In rebuttal, Jose

testified that, the day after Jose reported the incident to his supervisor, defendant and

Cisneros confronted him. Specifically, defendant said, “Just watching here. When it’s

your time, it’s your time.” Jose reported that defendant had bullied Jose’s stepson, who

also worked at Clariant.

       3 At work, defendant was known as Johan Samayoa and Cisneros was known as
Jorge Esteban.

                                              3
       Both Cisneros and defendant had asked coworkers for loans. Cisneros was

struggling financially and he was a customer of Check ‘n Go, a payday loan business, in

Chino. The store manager, Virgil Ross, testified that, on November 14, 2013, Cisneros

came into the store at closing time. Vanessa Martinez, an employee, told him he did not

qualify for a modified loan. Cisneros complained to Ross, asking if Ross was “too good”

to greet him. Cisneros left the store, driving a black Nissan Altima.

       Defendant told a coworker he was living from paycheck to paycheck. On the

morning of November 15, 2013, defendant asked another coworker if he could borrow a

hundred dollars to avoid a $25 insurance late fee.

       Later that day, Cisneros and defendant left work for lunch. They arrived at the

Check ‘n Go after 1:15 p.m. Martinez was the only employee because Ross, the

manager, had left for lunch. The front door was locked, which was the business practice.

Martinez was on the phone, talking with Anthony Lagos, the manager of an Upland

Check ‘n Go. Lagos heard Martinez scream and then a loud thump. He heard Martinez

moaning in pain and two male voices speaking in Spanish. One was saying, “Over there.

Over there.” The other voice asked, “There?” Lagos immediately called the police on

another line.

       In the security videos, Cisneros approaches the door of the business and Martinez

pushes a button to allow him entry as she talks on the phone. Cisneros, who is barefaced,

holds the door open as defendant, wearing a mask, comes into the frame and both men

move inside. With defendant behind him, Cisneros walks up to the front counter and,



                                             4
before Martinez can take any evasive action, Cisneros fires a gun at her chest at close

range. Defendant is still several feet behind Cisneros during that time.

       After Cisneros fires, defendant sprints around the counter and rummages through

several drawers while Cisneros remains on the other side of the counter, pointing to

various locations. Martinez falls from her chair and lies on the floor, lifting her head

repeatedly while defendant steps over her body to search the drawers. Cisneros then

turns and walks out of the store ahead of defendant. After defendant finishes searching

the drawers, he runs out of the store.

       At no point does Cisneros point a weapon at defendant. Defendant does not try to

leave when he is following behind Cisneros. Defendant took $600 from the cash

drawers. Martinez died at the scene.

       A witness in a nearby car observed defendant, wearing a blue dust mask, walk

quickly around the corner of the Check ‘n Go, and get into the passenger side of a black

Altima. Defendant and Cisneros returned to work at around 1:45 p.m.

       Ross, the store manager, identified Cisneros as the customer from the night before.

Jorge Villegas, who worked with Cisneros and defendant, recognized Cisneros on the

news and reported him to the police. Villegas also recognized defendant’s Boston Red

Sox hat and the blue mask as one they typically wore at work. Another coworker

recognized defendant as the masked man in the video.

       During a search of the Clariant building, officers found the handgun used in the

shooting inside a cereal box. At Cisneros’s work station, officers found a hat like he



                                             5
wore in the video. In defendant’s truck, officers also found a hat like defendant wore in

the video.

        When defendant was interviewed the day after the shooting, he denied

involvement but responded, “If I were in a tough situation financially, perhaps I can do

this. But I’m not. I’m financially okay.” He also contended that, if he had committed

such a crime, he would have fled.

        In a phone call from jail to his wife, defendant recounted going to lunch with

Cisneros; stopping “to do a quick job”; Cisneros cocking the hammer of the gun; entering

the store; and searching the drawers. Defendant told his wife he was in the video but

claimed there was little evidence against him because his face was covered. A detective

testified that defendant also discussed the payment of an insurance premium with his

wife.

B. Defense Case

        One of the coworkers testified that, a few weeks before the shooting, Cisneros had

borrowed $200 from him. On the day of the shooting, Cisneros and defendant invited

him to join them for lunch. Defendant appeared normal all morning but seemed quiet and

nervous when he returned from lunch. The afternoon of the shooting, the coworker

overheard defendant talking about needing to visit Washington state.

        Another coworker described Cisneros as having an unpredictable demeanor and

sometimes angrily snapping at people. He saw Cisneros bring a weapon to work several

times, and Cisneros’s fixation on guns and violence was well-known. The coworker also



                                             6
received phone calls from Cisneros’s debt collectors. Defendant had said that he needed

money.

       Defendant testified in his own defense. He claimed that, at the time of the

shooting, his bills were up to date, he was not in debt, and that he had not asked anyone

for money. He admitted that he was the masked man in the video. Despite Cisneros’s

reputation, defendant regularly went out to lunch with him and played soccer with him

after work.

       On the day of the shooting, defendant initially declined to go to lunch with

Cisneros because his wife had packed his lunch but he eventually agreed. While they

were in Cisneros's car, Cisneros stopped to cash a check. Defendant asked Cisneros why

he was putting on gloves. Cisneros responded that they were going to perform a “small

job,” a robbery, and then leave. When defendant refused to go inside, Cisneros

threatened him with the gun. Cisneros forced him to wear the mask. Defendant was

silent and feared for his life. Defendant refused to move until Cisneros stood behind him

with the gun.

       After they entered the store, there were two gunshots, and defendant grabbed the

money. Once they exited, defendant ran to the car and handed Cisneros the money.

Then they returned to work.

       Defendant was concerned for his family’s safety and afraid to report the incident.

After work, he picked up a pizza and went home. He was arrested the next day.

Defendant explained his denials to police by saying that he was not sure if Cisneros had



                                             7
been detained, and he was still afraid for his family. Detective Acuna testified in rebuttal

that, defendant was told in his initial interview that Cisneros was in custody.

       Although defendant admitted the April 2013 incident in which he tucked a gun in

his waistband, he denied that the gun belonged to him. He also denied asking a coworker

for money. He knew that Cisneros was preoccupied with guns and violence. He

acknowledged that he could have outrun Cisneros but he claimed he was afraid that

Cisneros would shoot him in the parking lot. Defendant did not consider running away or

calling for help.

       Defendant also acknowledged that Cisneros held the door open for him before he

entered the business and that, after the shooting, defendant immediately went behind the

counter to get the money. Defendant did not call for help and he stepped on the dying

victim’s hair while collecting the money.

                                             III

        INSTRUCTION ON FELONY MURDER SPECIAL CIRCUMSTANCE

       In an oral motion for a new trial, defense counsel noted that the trial court did not

instruct the jury with CALCRIM No. 703. He explained that the prosecution had

presented two theories for count 1—first degree murder based on malice and first degree

felony murder—and that it was not clear on which theory the jury relied. If the jury had

relied on a felony murder aiding and abetting theory, CALCRIM No. 703 would have

required the jury to make findings on the special circumstance as to defendant’s level of

involvement and intent in committing the murder. Defense counsel further argued that,

although defendant was involved in an armed robbery that resulted in death, he did not

                                              8
necessarily have the requisite intent and involvement to support the special circumstance

finding.

       In response, the prosecutor argued that, unlike in cases involving a getaway driver,

defendant’s substantial role in these crimes was overwhelmingly clear from the videos.

The prosecutor argued that defendant’s conduct and use of a mask indicated planning and

preparation. Defendant did not hesitate or indicate any surprise about the murder.

Instead, he immediately ran to ransack the drawers. The court denied defendant’s request

for a new trial, finding there was no doubt defendant was a major participant.

       On appeal, the People agree with defendant’s argument that the trial court failed to

instruct the jury properly, based on CALCRIM No. 703, that if the jury convicted

defendant of murder under the theory of felony murder, it could only return a true finding

on the special circumstance if it further found that he either intended to kill or was a

major participant and he acted with reckless indifference to human life. Failure to

instruct that a nonkiller, under the felony-murder special-circumstance allegations, must

(1) have personally had the intent to kill or (2) have been a major participant in the

commission of the burglary or robbery and have acted with reckless indifference to

human life is error: “In order to support a finding of special-circumstances murder, based

on murder committed in the course of designated felonies, against an aider and abettor

who is not the actual killer, the prosecution must show either that the aider and abettor

had intent to kill (§ 190.2, subd. (c)) or acted with reckless indifference to human life

while acting as a major participant in the underlying felony. (§ 190.2, subd. (d).)”

(People v. Bustos (1994) 23 Cal.App.4th 1747, 1753.)

                                              9
       Instead, the parties focus their argument on whether the error was harmless. The

People argue that the court’s federal constitutional error was harmless beyond a

reasonable doubt and “no reasonable jury, properly instructed . . . would have failed to

find” the missing element. (People v. Osband (1996) 13 Cal.4th 622, 682.) The People

contend the overwhelming evidence demonstrated that defendant and Cisneros jointly

coordinated and executed the robbery and murder and defendant intended to kill.

According to the People, the surveillance videos show that defendant and Cisneros “acted

as a choreographed team throughout the course of the robbery.” Defendant responds that

participating in a robbery is not evidence of intent to kill, or even of knowledge that the

other participant intended to kill, citing People v. Banks (2015) 61 Cal.4th 788, 807.

       Section 190.2, subdivision (d), provides in pertinent part that “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 [an enumerated] felony [including robbery,] 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.” Both parties rely heavily on the Banks case, which holds: “The statute thus

imposes both a special actus reus requirement, major participation in the crime, and a

specific mens rea requirement, reckless indifference to human life.” (People v. Banks,

supra, 61 Cal.4th at p. 798.)

       With respect to the mental aspect of culpability, section 190.2, subdivision (d),

looks to whether a defendant knowingly engaged in a crime carrying a grave risk of

                                             10
death. (People v. Banks, supra, 61 Cal.4th at p. 801.) He “must be aware of and

willingly involved in the violent manner in which the particular offense is committed,

demonstrating reckless indifference to the significant risk of death his or her actions

create.” (Ibid.) Thus, the special circumstance may be applied to those who

“‘subjectively appreciated that their acts were likely to result in the taking of innocent

life.’” (Id. at p. 802, quoting Tison v. Arizona (1987) 481 U.S. 137.)

       We hold that, although the trial court erred by not giving CALCRIM No. 703 to

the jury, the error was harmless: “[W]hen a trial court fails to instruct the jury on an

element of a special circumstance allegation, the prejudicial effect of the error must be

measured under the test set forth in Chapman v. California (1967) 386 U.S. 18, 24.

[Citations.] Under that test, an error is harmless only when, beyond a reasonable doubt, it

did not contribute to the verdict.” (People v. Williams (1997) 16 Cal.4th 635, 689.)

Section 190.2 and CALCRIM No. 703 protect some aiders and abettors from sentences of

death or life in prison without parole for felony murder convictions. In this case,

however, the videos and other evidence overwhelmingly showed defendant was a major

participant who acted with reckless indifference to human life.

       In Banks, the defendant Matthews was sentenced to life in prison without the

possibility of parole. Matthews was the getaway driver in an attempted armed robbery

that resulted in a killing. Matthews had helped plan the robbery with two other gang

members. (People v. Banks, supra, 61 Cal.4th at p. 796.) However, Banks was not

present at the attempted robbery and shooting and there was no evidence that he intended

for the robbery to result in a killing. (Id. at pp. 805, 807.) The perpetrator’s killing

                                              11
appeared to be a spontaneous response to resistance from the victim. (Id. at pp. 795-796.)

Under those facts, the California Supreme Court found there was insufficient evidence

that Matthews was a major participant or that he acted with reckless indifference to

human life for purposes of the special circumstance for an aider and abettor to felony

murder under section 190.2, subdivision (d). (Id. at pp. 805-811.)

       Banks described a spectrum of conduct that may make a defendant eligible for a

special circumstance. (People v. Banks, supra, 61 Cal.4th at pp. 794, 811.) The pertinent

considerations include: “What role did the defendant have in planning the criminal

enterprise that led to one or more deaths? What role did the defendant have in supplying

or using lethal weapons? What awareness did the defendant have of particular dangers

posed by the nature of the crime, weapons used, or past experience or conduct of the

other participants? Was the defendant present at the scene of the killing, in a position to

facilitate or prevent the actual murder, and did his or her own actions or inactions play a

particular role in the death? What did the defendant do after lethal force was used?” (Id.

at p. 803.)

       Applying the Banks factors, the present case did not involve an unexpected

shooting or a defendant who was not present at the scene. Instead, defendant participated

in the entire sequence of events from beginning to end. Before they entered the store,

defendant knew Cisneros was armed and prone toward violence. Defendant wore a

mask. The videos clearly showed defendant’s active involvement. Defendant did not

object, hesitate, or run before Cisneros shot Martinez, even though he was behind

Cisneros most of the time. Instead, defendant instantly began searching the drawers for

                                             12
money. He showed no concern for Martinez as she was dying and fled without trying to

help her.

       The only opposing evidence was defendant’s own testimony, which the jury

rejected. Furthermore, we reject defendant’s argument that, because defendant had

invited a coworker to go to lunch with Cisneros and him, there was evidence that

defendant did not know that a robbery and a murder had been planned. “Our task, then,

is to determine ‘whether the record contains evidence that could rationally lead to a

contrary finding with respect to the omitted element.’” (People v. Mil (2012) 53 Cal.4th

400, 417, quoting Neder v. United States (1999) 527 U.S. 1, 19.) Whatever defendant

knew before he went to lunch, the evidence supports that by the time he entered the door

of the business he knew a murder, or a grave risk of death, was in the offing. No

“rational juror, given proper instructions, could have had a reasonable doubt whether

defendant was subjectively aware of a grave risk of death when he participated in this

burglary and robbery.” (Mil, at p. 419.) We conclude no evidence could rationally

support defendant’s claim of not knowing what might happen that day.

       On appeal, defendant argues that he may have intended to commit robbery but the

murder was unexpected. However, if the court had instructed the jury with CALCRIM

No. 703, that instruction was not consistent with the duress theory that defendant

presented. As a result, there is simply no possibility that the instruction would have

resulted in a verdict more favorable to defendant. The evidence against him was

overwhelming, strong, and consistent. Thus, the court’s instructional error was harmless



                                            13
beyond a reasonable doubt. For the same reasons, defendant has failed to show that the

court abused its discretion by denying his motion for a new trial.

                                             IV

                            INSTRUCTION ON NECESSITY

       Defendant also argues the trial court erred by not giving sua sponte the jury

instruction on necessity, an instruction he did not request. Defendant contends that the

jury may have rejected his duress defense because Cisneros’s alleged threat lacked

immediacy. Therefore, an alternative instruction on necessity would have allowed the

jury to find defendant’s participation in the robbery was justified by his fear of future

harm to himself or his family.

       We disagree. “[T]he defense of necessity, or choice of evils, traditionally covered

the situation where physical forces beyond the actor’s control rendered illegal conduct the

lesser of two evils.” (U. S. v. Bailey (1980) 444 U.S. 394, 410; People v. Lovercamp

(1974) 43 Cal.App.3d 823, 831-832.) This defense is generally recognized when a

defendant is charged with committing any criminal act except the taking of an innocent

human life. (People v. Pena (1983) 149 Cal.App.3d Supp. 14, 22; People v. Slack (1989)

210 Cal.App.3d 937, 940-942.)

       The defense of necessity involves six elements: (1) the act charged as criminal

must have been done to prevent a significant evil; (2) there must have been no adequate

alternative; (3) the harm caused must not be disproportionate to the harm avoided; (4) the

accused must entertain a good-faith belief that his act was necessary to prevent the

greater harm; (5) his belief must be objectively reasonable under all the circumstances;

                                             14
and (6) the accused must not have substantially contributed to the creation of the

emergency. (People v. Pena, supra, 149 Cal.App.3d Supp. at pp. 25-26; CALCRIM No.

3403.)

         The necessity defense was inconsistent with defendant’s theory of duress. In his

trial testimony, defendant stated that Cisneros pointed the gun directly at him and he

feared for his life. On appeal, he argues that he had time to consider his options and form

the intent to commit the acts. Necessity is different from duress because, with duress, the

immediacy of the threat negates an element of the crime—the intent to commit the act.

(People v. Heath (1989) 207 Cal.App.3d 892, 901.) By contrast, the necessity defense

contemplates a threat that gives the defendant time to consider alternative courses of

conduct. (Ibid.) Thus, “[n]ecessity does not negate any element of the crime, but

represents a public policy decision not to punish such an individual despite proof of the

crime.” (Ibid.) Defendant could not have argued that he both did and did not have the

requisite intent. Indeed, “to require trial courts to ferret out all defenses that might

possibly be shown by the evidence, even when inconsistent with the defendant’s theory at

trial, would not only place an undue burden on the trial courts but would also create a

potential of prejudice to the defendant.” (People v. Barton (1995) 12 Cal.4th 186, 197.)

         Furthermore, defendant’s evidence does not justify an instruction on necessity. A

trial court’s sua sponte duty to instruct on defenses not asserted by the defendant is

limited. (People v. Barton, supra, 12 Cal.4th at p. 197.) A trial court has a sua sponte

duty to instruct regarding a defense if substantial evidence supports the defense and it is

not inconsistent with the defendant’s theory of the case. (People v. Montoya (1994) 7

                                              15
Cal.4th 1027, 1047.) In deciding whether there is substantial evidence, the trial court

does not make credibility determinations. (People v. Salas (2006) 37 Cal.4th 967, 982.)

On appeal, the court determines whether the evidence was sufficient such that a

reasonable jury, accepting all the evidence as true, could find the defendant’s actions

justified by necessity. (People v. Slack, supra, 210 Cal.App.3d at p. 941.)

       We conclude defendant did not meet his burden to present sufficient evidence to

support the necessity defense. In order to establish the necessity defense, there must be

an emergency, a showing of imminent harm or a threat in the immediate future. (People

v. Galambos (2002) 104 Cal.App.4th 1147, 1163, fn. 7.) Defendant presented no

evidence of a significant and imminent evil; there was only evidence of a direct

immediate threat against defendant that he would be immediately shot if he did not

participate in the armed robbery and murder. The jury rejected the duress defense.

       There was no evidence of any other threatened harm. Specifically, there was no

evidence that Cisneros threatened to harm defendant or his family after the robbery or

that defendant did not have adequate legal alternatives. (People v. Pena, supra, 149

Cal.App.3d Supp. at pp. 25-26.) Instead, the video showed that defendant entered the

store after Cisneros, which gave him an opportunity to flee. The robbery occurred at a

strip mall in the middle of the day, giving defendant a chance to escape. Thus, since

defendant had the ability to flee, seek help, and call the police, he did not present

evidence that there was no reasonable legal alternative to participating in an armed

robbery and murder. The necessity defense fails if there was a reasonable, legal



                                             16
alternative to violating the law. (People v. Galambos, supra, 104 Cal.App.4th at p. 1164;

People v. Kearns (1997) 55 Cal.App.4th 1128, 1135.)

        In addition, defendant presented no evidence that participating in the armed

robbery created a lesser danger: “An important factor of the necessity defense involves

the balancing of the harm to be avoided as opposed to the costs of the criminal conduct.”

(People v. Heath, supra, 207 Cal.App.3d at p. 901.) Several courts have found that the

necessity defense is inappropriate when “its recognition would encourage rather than

deter violence.” (People v. Kearns, supra, 55 Cal.App.4th at p. 1135; People v.

McKinney (1986) 187 Cal.App.3d 583, 587; People v. Velasquez (1984) 158 Cal.App.3d

418.)

        In this case, the armed robbery created a far greater danger than any speculative

threat to defendant’s family. Defendant chose unhesitatingly to participate in an armed

robbery and murder and now seeks to justify his decision. But, as other courts have

recognized, permitting the necessity defense based on sheer speculation would encourage

rather than deter violence.

        Furthermore, even if defendant subjectively believed that armed robbery and

murder were necessary, defendant presented no evidence that his belief was objectively

reasonable. (People v. Pena, supra, 149 Cal.App.3d Supp. at pp. 25-26.) There was no

evidence of a threat against defendant’s family, defendant had the opportunity to flee, and

his subjective and speculative fears did not outweigh the greater danger involved in

armed robbery. Therefore, defendant failed to show that his belief in the need to commit

these crimes was objectively reasonable.

                                             17
       Finally, any error was harmless beyond a reasonable doubt because the evidence

of defendant’s guilt was overwhelming. (Chapman v. California, supra, 386 U.S. at p.

24.) The evidence established defendant was financially strapped, suggesting a motive.

The jury viewed and evaluated the crime videos, which showed defendant wore a mask

and acted without hesitation. He showed no surprise or concern while he grabbed money

from the drawers. He did not report the murder and he tried to deny his involvement.

There was also no reason why Cisneros needed defendant’s assistance to commit the

crimes. He could easily have taken the money after killing the clerk. Because the jury

rejected defendant’s version and because overwhelming evidence foreclosed the

necessity defense, any error was harmless.

                                              V

                                     IMPEACHMENT

       Defendant testified that, in his initial interview with police, he did not claim

Cisneros had threatened him because he was afraid that Cisneros might harm him or his

family: “I couldn’t open my mouth until I was sure that they had detained Mr. Cisneros.”

On cross-examination, he testified that he “would have told them everything” if the

police had told him that Cisneros was already in custody. He also asserted that the police

informed him “when we had finished the interview.” The prosecutor rebutted

defendant’s testimony by having an officer testify that defendant was told about

Cisneros’s arrest during the course of the interview and not at the conclusion.

       A prosecutor’s use of a defendant’s post-Miranda silence violates federal due

process because “it is fundamentally unfair to use post-Miranda silence against the

                                             18
defendant at trial in view of the implicit assurance contained in the Miranda warnings

that exercise of the right of silence will not be penalized. [Citation.]” (People v.

Coffman and Marlow (2004) 34 Cal.4th 1, 65; Doyle v. Ohio (1976) 426 U.S. 610, 618.)

A prosecutor may not use the defendant’s invocation of his right to remain silent or

refusal to answer questions as evidence against him. (People v. Champion (2005) 134

Cal.App.4th 1440, 1448.)

       However, “Doyle does not apply to cross-examination that merely inquires into

prior inconsistent statements. Such questioning makes no unfair use of silence because a

defendant who voluntarily speaks after receiving Miranda warnings has not been induced

to remain silent. As to the subject matter of his statements, the defendant has not

remained silent at all.” (Anderson v. Charles (1980) 447 U.S. 404, 408.) In addition,

there is no violation of due process when the prosecutor’s reference to defendant’s

postarrest silence was, in context, a fair response to defendant’s claim or a fair comment

on the evidence. (People v. Champion, supra, 134 Cal.App.4th at p. 1448.)

       Defendant has not shown that the prosecution’s impeachment of his trial testimony

was wrong under Doyle. First, Doyle does not apply because defendant did not invoke

his right to remain silent. (See Anderson v. Charles, supra, 447 U.S. at p. 409.) Instead,

defendant testified about his police interview and the prosecutor used the impeachment

evidence to rebut defendant’s trial testimony. For that reason, defendant’s “silence” was

not used against him. Defendant has not shown that the prosecutor took unfair advantage

of his exercise of his right to remain silent. (People v. Champion, supra, 134

Cal.App.4th at pp. 1450-1451.)

                                             19
       Finally, any error was harmless beyond a reasonable doubt. (See People v.

Champion, supra, 134 Cal.App.4th at p. 1453, applying Chapman v. California, supra,

386 U.S. at p. 24.) As already discussed, the evidence of defendant’s guilt was

overwhelming. He admitted his presence and participation, and his duress claim was

inconsistent with all of the other evidence and extremely improbable. Even without the

officer’s rebuttal testimony, defendant admitted that he was told of Cisneros’s arrest at

the end of the interview but he did not then tell “everything.” Even if the trial court erred

by allowing the rebuttal testimony, the error was harmless beyond a reasonable doubt.

                                             VI

                                   EVIDENCE OF GUN

       It was not an abuse of discretion to admit evidence about defendant and Cisneros

handling a gun in April. That evidence was clearly relevant because it showed that the

relationship between the men involved guns. It was not ineffective assistance of counsel

not to object to that evidence.

       Evidence is relevant when it has any tendency to “prove or disprove any disputed

fact that is of consequence to the determination of the action.” (Evid. Code, § 210.)

Nonetheless, the court may, in its discretion, “exclude evidence if its probative value is

substantially outweighed by the probability that its admission will (a) necessitate undue

consumption of time or (b) create substantial danger of undue prejudice, of confusing the

issues, or of misleading the jury.” (Evid. Code, § 352.) “‘Prejudice’ in [Evidence Code]

section 352 does not refer simply to evidence that is damaging to the defendant. Instead,

‘“[t]he ‘prejudice’ referred to in Evidence Code section 352 applies to evidence which

                                             20
uniquely tends to evoke an emotional bias against the defendant as an individual and

which has very little effect on the issues.”’ [Citation.]” (People v. Smith (2005) 35

Cal.4th 334, 357.)

       A trial court has wide discretion in determining the relevance of evidence and

whether the probative value of evidence outweighs its possible prejudicial effect.

(People v. Chatman (2006) 38 Cal.4th 344, 371; People v. Sassounian (1986) 182

Cal.App.3d 361, 402.) “An appellate tribunal is not authorized to substitute its judgment

for that of the trial judge.” (People v. Stewart (1985) 171 Cal.App.3d 59, 65.)

“[D]iscretion is abused only if the court exceeds the bounds of reason, all of the

circumstances being considered.” (Ibid.)

       The trial court properly exercised its discretion when it admitted the evidence of

the April gun incident. The trial court held that the incident was “still relevant to the two

of them acting together with a gun in November” in spite of who actually handled the

gun. The relationship between defendant and Cisneros was highly relevant, particularly

since defendant claimed that Cisneros suddenly and unexpectedly ordered him at

gunpoint to participate in a robbery. Regardless of who brought the gun to work, the two

clearly shared an interest in guns. Thus, this evidence was relevant to defendant’s

relationship with Cisneros, his knowledge of Cisneros’s interests and actions, and the

absence of any mistake by defendant. (Evid. Code, § 1101, subds. (b) & (c).) Although

defendant was not the shooter, that fact has little bearing on whether he and Cisneros

handled guns together, evidence which tended to rebut defendant’s claim that he was an



                                             21
unwilling participant in the crimes. The trial court’s decision did not exceed the bounds

of reason.

       Furthermore, defendant forfeited his argument that the prior gun incident was

unduly prejudicial because he failed to raise that objection in the trial court. (People v.

Champion (1995) 9 Cal.4th 879, 918, overruled on other grounds in People v. Combs

(2004) 34 Cal.4th 821, 860.) Here, defendant only raised a relevance objection to the

prior gun incident evidence. He did not object under Evidence Code sections 352 or

1101, nor did he raise a due process objection. Therefore, he has forfeited these claims

on appeal.

       Notwithstanding forfeiture, defense counsel may have had a reasonable, tactical

purpose for not objecting. The Sixth Amendment to the United States Constitution and

article I, section 15 of the California Constitution guarantee criminal defendants the right

to effective assistance of counsel. (People v. Bonin (1989) 47 Cal.3d 808, 833.) The

burden of proving ineffective assistance of trial counsel lies with the defendant who

challenges the judgment. (People v. Haskett (1990) 52 Cal.3d 210, 248.) Defendant

must demonstrate deficient performance as well as prejudice under the federal and state

Constitutions. (Strickland v. Washington (1984) 466 U.S. 668, 687-695; People v.

Osband, supra, 13 Cal.4th at p. 700.)

       We presume “that counsel rendered adequate assistance and exercised reasonable

professional judgment in making significant trial decisions.” (People v. Holt (1997) 15

Cal.4th 619, 703.) Defendant must show trial counsel’s representation fell “below an

objective standard of reasonableness.” (People v. Bolin (1998) 18 Cal.4th 297, 333.) If

                                             22
the record on appeal does not contain an explanation for the challenged action or

omission, the reviewing court must reject a claim of deficient performance unless counsel

failed to provide an explanation when asked or there could be no satisfactory explanation

for counsel’s conduct. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266; People v.

Osband, supra, 13 Cal.4th at pp. 700-701.)

       Here, defense counsel may have recognized that, by arguing that the evidence was

irrelevant, he presented his strongest argument and maintained credibility with the court.

In addition, since this incident, which occurred over six months earlier, was the only

other evidence of defendant handling a gun, counsel could have portrayed the prosecutor

as “grasping at straws” and the evidence would do minimal damage. Therefore,

defendant has not shown that counsel was deficient for not raising a prejudice objection.

       Furthermore, the gun incident evidence was not unduly prejudicial. (People v.

Davis (1995) 10 Cal.4th 463, 515-516.) The defendant must show a “reasonable

probability that counsel’s omission resulted in a less favorable verdict” (People v. Wash

(1993) 6 Cal.4th 215, 271) or “so undermined the proper functioning of the adversarial

process that the trial cannot be relied on as having produced a just result.” (Strickland v.

Washington, supra, 466 U.S. at p. 686.) “‘If it is easier to dispose of an ineffectiveness

claim on the ground of lack of sufficient prejudice . . . that course should be followed.’”

(In re Fields (1990) 51 Cal.3d 1063, 1079.)

       The gun evidence merely showed that defendant and Cisneros had previously

handled a gun together at work. The evidence did not involve any gun use, violence, or



                                              23
threats. The evidence did not “‘“uniquely tend[] to evoke an emotional bias against the

defendant.”’” (People v. Smith, supra, 35 Cal.4th at p. 357.)

       Errors in admitting evidence are harmless under People v. Watson (1956) 46

Cal.2d 818, 836 unless there is a reasonable probability that the defendant would have

received a more favorable result without the error. (People v. Alcala (1992) 4 Cal.4th

742, 770.) Here, defendant has not shown any probability of a more favorable result

without this evidence. The evidence against defendant was overwhelming, and the only

issue in dispute was whether defendant committed the crime under duress, regardless of

whether the jury knew defendant handled a gun six months before. Defendant has not

shown a reasonable probability of a different result without the evidence.

                                            VII

                                   OTHER EVIDENCE

       In his telephone conversation to his wife while in jail, defendant tried to explain

what had happened. In the translated version, he stated: “so since my face is not

uncovered, they doesn’t [sic] have much. They have me here because he said it was me,

but let him put — let him — as deep as he can in my case, so the videos of everyone,

everything — everything, so that they see that, take away the two charges. [Emphasis

added.]” After a bench conference, the court told the jury, “[T]he statements that were

just read to you, there are statements that [defendant] makes referring to what other

people said. Those statements are not being offered for truth of those statements, only as

to defendant’s state of mind concerning those statements. Unless he specifically adopts

them as his statements.” It is not clear who defendant means in the phrase “he said it was

                                             24
me.” Nevertheless, defendant claims that “he” referred to Cisneros, that the statement

was inadmissible hearsay, that the statement violated the Confrontation Clause, and that

the court’s instruction not to consider the statement for the truth of the matter was

inadequate.

         Hearsay is “evidence of a statement that was made other than by a witness while

testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid.

Code, § 1200.) Out-of-court statements that are not offered for their truth are not hearsay

under California law and do not violate the confrontation clause. (People v. Ervine

(2009) 47 Cal.4th 745, 775-776; Crawford v. Washington (2004) 541 U.S. 36, 60, fn. 9.)

Statements that are “admitted to supply meaning to defendant’s conduct or silence” in the

face of accusatory statements, rather than for their truth, do not constitute inadmissible

hearsay. (People v. Combs, supra, 34 Cal.4th at p. 842; Evid. Code, § 1221.) These

adoptive admissions are admissible when (1) the party has knowledge of the content of

another’s hearsay statement, and (2) the party uses words or conduct indicating adoption

or belief in the truth of the statement. (Combs, at p. 843.)

         Trial court rulings regarding the admissibility of evidence are reviewed for abuse

of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 203.) This court independently

reviews a trial court’s determination that evidence did not violate the defendant's rights

under the Confrontation Clause. (People v. Johnson (2007) 150 Cal.App.4th 1467,

1478.)

         The trial court did not abuse its discretion by admitting defendant’s recitation of

the accusation against him by an unidentified person. The purpose of this evidence was

                                               25
not to prove who had accused defendant. The issue was how defendant responded to that

accusation. As the prosecutor argued, “[I]t would be an implied admission.” Rather than

denying his presence at the scene of the crime, defendant acknowledged the truth of the

statement, and it became an adoptive admission. (People v. Combs, supra, 34 Cal.4th at

p. 843.) In addition, because the statement was not admitted for its truth, it did not

violate the Confrontation Clause. (People v. Ervine, supra, 47 Cal.4th at p. 776.)

       Even if the court erred by admitting the statement, the error was harmless under

any standard. If admission of hearsay statements violated a state statute alone, this court

applies the standard articulated in People v. Watson, supra, 46 Cal.2d at page 836, and

reverses only if there is a reasonable probability of a result more favorable to the

defendant in the absence of the error. (People v. Duarte (2000) 24 Cal.4th 603, 618-619.)

If the error violated defendant’s Confrontation Clause rights, this court determines

whether the error was harmless beyond a reasonable doubt. (Chapman v. California,

supra, 386 U.S. at p. 24.)

       Defendant’s defense was duress, and he admitted that he was the other person in

the video. Therefore, any statement that “he said it was me,” regardless of who “he” was,

could not have had any impact on the verdict. The statement had no bearing on whether

defendant was acting under duress. The video itself provided overwhelming evidence

that defendant willingly participated in the crimes. Any error in admitting this statement

was harmless under any standard.

       Defendant also objects to the admission of defendant’s false name, Johan

Samayoa, because the jurors might have speculated that he was not a legal citizen. The

                                             26
trial court permitted those witnesses who knew defendant by that name to identify him as

such. We hold defendant has not shown that the trial court abused its discretion or that he

was deprived of a fair trial and that any error was harmless.

       The trial court properly exercised its discretion by admitting evidence of

defendant’s false name for purposes of identification. Many of the relevant witnesses in

the trial knew defendant as Johan Samayoa. In addition, as the prosecutor argued,

defendant’s character witnesses did not know him well enough to know his real name,

which was relevant to their credibility. The trial court also properly exercised its

discretion by finding that the relevance of defendant’s false name was not “substantially

outweighed” by the danger of undue prejudice. (See Evid. Code, § 352.) Except that he

required an interpreter, whether defendant was known as Samayoa or Mendez, both

Hispanic surnames, there was nothing in the record one way or the other about

defendant’s status as a citizen.

       In any event, to prove a deprivation of federal due process rights, defendant “must

satisfy a high constitutional standard to show that the erroneous admission of evidence

resulted in an unfair trial.” (People v. Albarran (2007) 149 Cal.App.4th 214, 229.)

There was no direct evidence regarding defendant’s citizenship and his false surname was

mentioned only twice in identifying him. Defendant failed to show that admission of his

false last name rendered his trial so arbitrary and fundamentally unfair that it violated

federal due process. Any error was also harmless unless there is a reasonable probability

that the defendant would have received a more favorable result without the error.



                                             27
(People v. Alcala, supra, 4 Cal.4th at p. 770.) The evidence of defendant’s guilt was

overwhelming. His false surname had no bearing on the verdict.

                                          VIII

                                     DISPOSITION

      We reject all defendant’s claims of prejudicial error. Therefore, we reject his

contention of cumulative error as well. (People v. Anderson (2001) 25 Cal.4th 543, 606.)

      We agree with the parties that the unauthorized parole revocation restitution fine

should be stricken. (People v. Carr (2010) 190 Cal.App.4th 475, 482.) We order the

clerk of the superior court to prepare an amended abstract of judgment to be forwarded to

the Department of Corrections and Rehabilitation. In all other respects, we affirm the

judgment.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                              CODRINGTON
                                                                                           J.

We concur:


McKINSTER
                Acting P. J.


MILLER
                          J.




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