Filed 5/20/15 P. v. Alvara CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

THE PEOPLE,                                                          B253959

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA093430)
         v.

CHRISTOPHER ALVARA et al.,

         Defendants and Appellants.




         APPEALS from judgments of the Superior Court of Los Angeles County. Arthur
Jean, Jr., Judge. Affirmed.


         Robert Derham, under appointment by the Court of Appeal, for Defendant and
Appellant Christopher Alvara.


         David Andreasen, under appointment by the Court of Appeal, for Defendant and
Appellant Matthew John Miller.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel and Tita
Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
       Defendant and appellant Christopher Alvara (Alvara) appeals from his murder
conviction, and Matthew John Miller (Miller), appeals from his murder and robbery
convictions.1 Miller and Alvara both contend: that jury instructions on aiding and
abetting were misleading; that an aider and abettor cannot be convicted of second degree
murder based on implied malice; that the trial court erred in failing to give a sua sponte
instruction on involuntary manslaughter as a lesser included offense of murder; and that
the trial court erred in refusing to order separate trials. In addition Miller contends that
the trial court erred in failing to give a sua sponte instruction on theft as a lesser included
offense of robbery. Alvara joins in Millers’s arguments and both defendants contend that
the cumulative effect of trial court errors requires reversal. As we conclude that all
defendants’ contentions lack merit, we affirm the judgments.
                                      BACKGROUND
Procedural history
       In a two-count information, Alvara and Miller were charged in count 1 with the
with murder of Mylon Waggoner (Waggoner), in violation of Penal Code section 187,
subdivision (a),2 and in count 2, with second degree robbery, in violation of section 211.
The information also alleged as to count 1 that defendants committed the murder during
the commission of a robbery within the meaning of section 190.2, subdivision (a)(17).
As to both counts it was alleged that defendants committed the crimes for the benefit of,
at the direction of, and in association with a criminal street gang with the intent to
promote, further and assist the gang, within the meaning of section 186.22, subdivision
(b)(1)(C).
       The trial court denied Alvara’s motion to sever his trial from Miller’s and the
defendants were jointly tried. A jury convicted both defendants of second degree murder,
found not true the allegation that the murder was committed during the commission of a



1      We refer to Alvara and Miller collectively as defendants.

2      All further statutory references are to the Penal Code, unless otherwise indicated.

                                               2
robbery, and acquitted Alvara of robbery, but convicted Miller of robbery as charged.
The bifurcated gang allegations were stricken on motion of the prosecution.
       On January 17, 2014, the trial court sentenced Alvara to 15 years to life in prison,
with 487 days of presentence custody credit, and ordered him to pay mandatory fines and
fees. The trial court sentenced Miller to a total prison term of 20 years to life, comprised
of 15 years to life as to count 1, plus the upper term of five consecutive years in state
prison for count 2, with 487 days of presentence custody credit, and he was also ordered
to pay mandatory fines and fees. Defendants filed timely notices of appeal.
Prosecution evidence3
       Waggoner lived on and off with Shari Baier and her husband. On April 4, 2011,
when he decided to move to San Francisco, Bair drove him to the bus stop. Waggoner
had a backpack containing among other things his iPod. He also had a suitcase, but
needed some more of the belongings which he stored in the garage of a sober living home
located on Webster Avenue and Cameron Street in Long Beach. Waggoner’s friend
Dennis Thomas (Thomas) managed the home and had allowed Waggoner to store some
things there. Thomas had tried to get Waggoner accepted into the sober living program,
but enrollment was limited to registered sex offenders, which Waggoner was not.
Thomas was unable to give Waggoner access to the storage on April 4, 2011, so arranged
to meet him the next morning. Waggoner told Thomas he would sleep nearby behind a
tree on Webster Avenue.
       Eduardo Lorenzo (Lorenzo) lived near the intersection of Wardlow Road and
Webster Avenue in Long Beach, not far from Cameron Street. During the very early
morning hours of April 5, 2011, he heard his dog barking loudly outside. He looked out a
window and saw two men in the middle of the street. One man, later identified as
Waggoner, was lying on the ground, trying to stand up. The other man walked past
Lorenzo’s house and toward Cameron Street, where Lorenzo saw a third man at the
corner. When Waggoner walked to the bus bench, Lorenzo went outside to ask whether


3      Defendants did not testify or present evidence.

                                              3
he was all right. Waggoner said he was okay and was just going to take a rest.
Waggoner also said something like, “Those kids are crazy,” and “Those kids jump on
me.”
       Sometime between midnight and 1:00 a.m. that same night, Lorenzo’s neighbor,
Humberto Rodriguez Garcia (Rodriguez), heard dogs barking, peeked out his window,
and saw a man running and shouting, “I want my backpack.” Later that morning
Rodriguez saw the man, later identified as Waggoner, lying down surrounded by police
and other people. Rodriguez testified he had also seen Waggoner in the neighborhood at
around 9:00 or 10:00 a.m. the previous morning carrying a briefcase and backpack.
       Later in the morning of April 5, 2011, Waggoner was found dead, lying on the bus
bench with his suitcase nearby. His backpack was never recovered. Waggoner died
around 7:00 a.m. due to blood loss from multiple stab wounds. The medical examiner
found 10 stab wounds in his chest and back, as well as defensive wounds to his right
elbow, forearms, and hands, and abrasions on his scalp and knees. Though some of the
stab wounds were not potentially fatal, those that were potentially fatal were not
immediately fatal or incapacitating. The medical examiner opined that Waggoner could
have remained on his feet for a while after being stabbed.
       A cigarette butt was found near Waggoner’s body and swabbed for DNA. Two
DNA profiles were developed from the swabs. Waggoner was found to be the
predominate contributor, while Miller was a possible minor contributor.
       Miller and Alvara lived about two blocks from the crime scene. Homicide
Detective Peter Lackovic suspected that defendants perpetrated this crime. Thus, when
both defendants were in custody on an unrelated matter and before they were questioned
or charged in this case, Detective Lackovic devised a plan to obtain information from
them. He created a Criminal Information Bulletin about the murder with drawings of
both defendants on it, posted it at the police station booking area and jail facility where
defendants would see it, placed them separately in cells with an informant, and secretly
recorded their conversations.



                                              4
       Portions of the jail cell recordings were played for the jury. Detective Hugo
Cortes, Detective Lackovic’s partner, explained some of the slang and Spanish words
heard in the recordings, including the following: “chunking,” which is slang for fighting;
“fierro,” meaning a sharpened metal object, such as a sharpened screwdriver, used to stab
someone; “filero,” a knife which is sharp on just one side; “jale,” meaning a crime;
“burner,” a slang term for gun; and “strap,” also a slang term for gun.
       Miller discussed with the informant what he should tell his family. Miller said he
did not know what to tell them, because they did not know anything about “that jale,” and
then, “Tell him we killed some [unintelligible].” The informant encouraged Miller to be
honest with them and offered to call Miller’s sister when he got out. Miller told him to
tell his sister that Chris was talking to a detective, that they intended to interrogate her
brother for a murder, and to bail out Chris.
       Later in the conversation Miller said: “It was me and a couple homies. We see
some nigger slipping in the hood . . . . He wasn’t . . . he was like a child molester or
something like that. I guess he got kicked out of one of those sober living homes.”
Miller continued: “Supposedly, I just walked up and ‘hey G’ [unintelligible] . . . .
Fucking the homie just socked that nigger. This nigger jumped up and chunking,
chunking with the homie. So I’m like ‘Oh’ and I picked up [unintelligible]”; “I pick up
his suitcase [unintelligible]. That fool turned around. He starts swinging on me. I’m
chunking it with this nigger. Boom, bam, boom, bam [unintelligible]”; “I don’t know
what happened, dog. . . . Like they were chunking the fool, next thing I know this nigger
like he fell. [Unintelligible] what happened. Like I knocked him out. . . . Next day,
heard that he died. [Unintelligible] that nigger ended up getting jumped. He got
whacked. Whack, whack, whack, whack.”
       When the informant asked whether Miller thought he might have left fingerprints
on the briefcase, Miller said, “No, see I got sliced, fool. When we were done chunking
him, fool, I, I took off. I had a big ass slice on my finger, fool. . . . How’d I get sliced?
Fucking like somebody stuck me too . . . .” Miller told the informant that “she knows
about it.” He explained that “she” had seen his finger, had seen the “vato, dead” and the


                                               5
crime scene, but “she won’t say shit.” When the informant told Miller that he “just better
hope they don’t got that Fierro,” Miller replied, “I know they don’t [unintelligible].”
After the informant said something unintelligible, Miller said, “And then my shit, my shit
was he’s stabbed, but I’m sliced.” The two men then discussed whether the third man
with them would “snitch,” and Miller said: “He’s like one of us dog [unintelligible]
snitch on [unintelligible] fool. Trust me. I know him”; and “Just like I know Chris, fool.
I know him.” Miller told the informant that they “never took nothing. The suitcase was
left there. The only thing we took was a backpack. Had a vodka bottle, and an iPod.
That was about it, and we threw it away. We threw it in the dumpster.” Later, the
informant and Miller discussed “the flyer” and Miller noted it contained a section that
“looks like . . . me and Chris.”
       In Alvara’s conversation with the informant he was asked whether his homeboy
was in jail too, and whether he was “running his mouth.” Alvara said no, and added, “I
mean hopefully not.” The informant asked, “[W]as it a strap? Did you get rid of it? Was
it a strap?” Alvara replied, “[Unintelligible] filero,” and told him he had gotten rid of it.
Asked where it happened, Alvara said that it happened one block from his “pad.” Alvara
said he knew that the man was a pedophile, because there was no middle or elementary
school in his neighborhood. Asked something unintelligible, Alvara replied, “No, I was
going to the store, and [unintelligible] laughing and drunk. Came back, you know.
[Unintelligible] he was rushing the homie, so [unintelligible] beer, drinking and walking
around [unintelligible].”
                                       DISCUSSION
I. Aiding and abetting implied malice murder
       Miller argues that because “the prosecution chose not to rely on a natural and
probable consequences theory, [he] could only have been guilty of aiding and abetting
murder if he specifically intended to encourage or facilitate a murder.” He contends that
one cannot aid and abet implied malice murder, and that the jury instructions given here
erroneously allowed the jury to convict him in that manner. Alvara joins in the
contentions and adopts Miller’s arguments.


                                              6
       We first address defendants’ premise that because no evidence directly placed a
weapon in their hands, their liability was necessarily based upon a finding of aiding and
abetting. Defendants cite People v. Samaniego (2009) 172 Cal.App.4th 1148, 1165-
1166, as authority for this assertion. Although the defendants in that case were charged
as aiders and abettors because the shooter was unknown, the court did not hold that a
defendant may only be convicted as an aider and abettor unless the evidence establishes
that he wielded the murder weapon.
       “[A] person aids and abets the commission of a crime when he or she, acting with
(1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of
committing, encouraging, or facilitating the commission of the offense, (3) by act or
advice aids, promotes, encourages or instigates, the commission of the crime.” (People v.
Beeman (1984) 35 Cal.3d 547, 561.) Contrary to Miller’s premise, “the dividing line
between the actual perpetrator and the aider and abettor is often blurred. . . . When two
or more persons commit a crime together, both may act in part as the actual perpetrator
and in part as the aider and abettor of the other, who also acts in part as an actual
perpetrator . . . . [For example] in a stabbing case, one person might restrain the victim
while the other does the stabbing.” (People v. McCoy (2001) 25 Cal.4th 1111, 1121
(McCoy).)
       Although Miller admitted he knocked the victim out before an accomplice stabbed
him, thus disabling the victim as much as holding him down might have done, we assume
for purposes of this discussion that he was convicted as an aider and abettor. We next
address what appears to be Miller’s confusion between the two theories of aiding and
abetting, and begin by defining them. “There are two distinct forms of culpability for
aiders and abettors. ‘First, an aider and abettor with the necessary mental state is guilty
of the intended crime.’” (People v. Chiu (2014) 59 Cal.4th 155, 158 (Chiu), quoting
McCoy, supra, 25 Cal.4th at p. 1117.) This is known as direct aiding and abetting.
(Chiu, supra, at p. 159.) “‘Second, under the natural and probable consequences
doctrine, an aider and abettor is guilty not only of the intended crime, but also “for any
other offense that was a ‘natural and probable consequence’ of the crime aided and


                                              7
abetted.”’ [Citation.]” (Ibid.; see also McCoy, supra, at p. 1118.) The “inquiry is strictly
objective and does not depend on defendant’s subjective state of mind . . . . It only
requires that under all of the circumstances presented, a reasonable person in the
defendant’s position would have or should have known that the nontarget offense was a
reasonably foreseeable consequence of the act aided and abetted by the defendant.
[Citation.]” (Chiu, at p. 166.)
       Under the natural and probable consequences doctrine, the intended crime is also
known as the “target” offense. (Chiu, supra, 59 Cal.4th at p. 161.) As Miller notes, the
prosecutor did not proceed on the natural and probable consequences theory of aiding and
abetting. It is only when the prosecution relies on the natural and probable consequences
doctrine that the trial court is required to identify and define a target crime. (People v.
Martinez (2007) 154 Cal.App.4th 314, 333.) Nevertheless (without citation to authority)
Miller states: “A defendant cannot be liable as an aider and abettor unless he harbors the
specific intent to help commit the target crime.”
       Miller has conflated the two theories by declaring that the target crime in this case
was murder. Miller’s reasoning, insofar as we follow it, appears to be that the corpus
delicti of murder is a killing and murder requires an intent to kill; thus, the direct
perpetrator’s purpose is to kill; and because the aider or abettor must act with knowledge
of the perpetrator’s purpose, he must necessarily be found to have encouraged or
facilitated murder. Miller concludes that “[b]ecause aiding and abetting murder requires
a similar specific intent -- to encourage and facilitate a murder -- logic dictates that aiding
and abetting the target crime of murder can only be based on express malice.” Miller
fails to connect his logic to the facts and theory of this case, and the authority on which
he relies provides no such link. (See People v. Swain (1996) 12 Cal.4th 593, 604-607
[specific intent to kill is a required element of assault with intent to commit murder,
attempted murder, solicitation for murder, and conspiracy to murder]; People v. Mejia
(2012) 211 Cal.App.4th 586, 606 [killing of accomplice by victim was a natural and
probable consequence of target crime].)



                                               8
       The mental state required for implied malice murder is not an intent to kill.
(People v. Swain, supra, 12 Cal.4th at p. 602.) The mental state required for implied
malice is knowledge that conduct endangers the life of another and a conscious disregard
for life. (People v. Chun (2009) 45 Cal.4th 1172, 1181.) Under the direct aiding and
abetting theory, “an aider and abettor’s mental state must be at least that required of the
direct perpetrator. ‘To prove that a defendant is an accomplice . . . the prosecution must
show that the defendant acted “with knowledge of the criminal purpose of the perpetrator
and with an intent or purpose either of committing, or of encouraging or facilitating
commission of, the offense.” [Citation.]’” (McCoy, supra, 25 Cal.4th at p. 1118.) It
follows that to aid and abet an implied malice murder, the direct aider and abettor must
intentionally commit, encourage, or facilitate life-endangering conduct with knowledge
of the perpetrator’s purpose and conscious disregard for life. (See id. at p. 1118 & fn. 1.)
       Here, the trial court read CALJIC Nos. 8.11 and 8.31. (See People v. Knoller
(2007) 41 Cal.4th 139, 152.)4 The trial court also gave the jury the standard instructions
on aiding and abetting, CALJIC Nos. 3.00 and 3.01. Such instructions adequately
informed the jury that the aider and abettor must have acted with knowledge of the
perpetrator’s unlawful purpose and with the intent or purpose of committing,
encouraging, or facilitating the perpetrator’s commission of the crime. Miller admitted
that he and two accomplices fought and killed Waggoner, that his own blows caused
Waggoner to fall and possibly knocked him out, and that one of his accomplices then
“whacked” Waggoner and stabbed him with a fierro, cutting Miller in the process. We
conclude from this evidence and the instructions given that the jury could appropriately



4       The trial court instructed as follows: “Murder of the second degree is also the
unlawful killing of a human being when the killing resulted from an intentional act, the
natural consequences of the act are dangerous to human life, and the act was deliberately
performed with knowledge of the danger to, and with conscious disregard for human life.
When the killing is the direct result of such an intentional act it is not necessary to prove
that the defendant intended that the act would result in the death of a human being. This
is implied malice murder.”


                                              9
find Miller guilty of implied malice murder, either as a direct aider and abettor or “in part
as the actual perpetrator and in part as the aider and abettor.” (McCoy, supra, 25 Cal.4th
at p. 1120.)
       Alvara adopts Miller’s arguments, although the evidence against him suggested
that he did in fact wield the murder weapon. Alvara suggested to the informant that he
had a motive to attack Waggoner, whom he believed was a pedophile, and he admitted
that the murder weapon was a knife which he disposed of after the fight with Waggoner.
As each defendant bears an individual burden to demonstrate error and prejudice, and
Alvara has failed to provide a particularized argument in support of his claimed right to
relief on this point, we have confined our discussion to Miller’s arguments. (See People
v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363-364.) However, our rejection
of the basic premise that an aider and abettor cannot be convicted of implied malice
murder would in any event result in the rejection of Alvara’s claim.
II. Involuntary manslaughter instruction
       Defendants contend that the trial court erred by failing to instruct the jury
sua sponte regarding involuntary manslaughter as a lesser included offense of murder. In
addition, Alvara asserts for the first time on appeal that the omission violated his
constitutional rights to due process and jury trial; however, as we find no merit to
defendants’ contentions, we do not address the additional constitutional issues.5
       Involuntary manslaughter is a killing “in the commission of an unlawful act, not
amounting to a felony; or in the commission of a lawful act which might produce death,
in an unlawful manner, or without due caution and circumspection.” (§ 192.)
Involuntary manslaughter may be a lesser offense included within the offense of murder.
(People v. Abilez (2007) 41 Cal.4th 472, 515.) “Due process requires that the jury be
instructed on a lesser included offense only when the evidence warrants such an
instruction. [Citations.]” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1145.) “[T]he

5     See People v. Boyer (2006) 38 Cal.4th 412, 441, footnote 17; People v. Partida
(2005) 37 Cal.4th 428, 433-439.


                                             10
‘substantial’ evidence required to trigger the duty to instruct on such lesser offenses is not
merely ‘any evidence . . . no matter how weak’ [citation], but rather ‘“evidence from
which a jury composed of reasonable [persons] could . . . conclude[]”’ that the lesser
offense, but not the greater, was committed. [Citations.]” (People v. Cruz (2008) 44
Cal.4th 636, 664.)
       Defendants argue that because the evidence did not demonstrate which of the
accomplices possessed the knife or perpetrated the stabbing, or that either defendant
knew or intended that Waggoner would be stabbed, a reasonable jury could conclude that
they committed no more than a misdemeanor battery. A misdemeanor assault or battery
can be the predicate offense for a conviction of involuntary manslaughter, depending
upon the circumstances. (People v. Cox (2000) 23 Cal.4th 665, 674-675.) However,
defendants’ battery upon Waggoner cannot simply be deemed a misdemeanor. “A
battery is ‘any willful and unlawful use of force or violence upon the person of another.’
(§ 242.) A battery is deemed to be a felony unless specifically designated as a
misdemeanor by either the prosecution or the court. [Citations.]” (People v. Benavides
(2005) 35 Cal.4th 69, 102-103.) There was no such designation here; and evidence of
felony assault does not require sua sponte instruction on involuntary manslaughter. (See
People v. Bryant (2013) 222 Cal.App.4th 1196, 1206.)
       Moreover, not every misdemeanor assault or battery can be the predicate offense
for a conviction of involuntary manslaughter. (People v. Cox, supra, 23 Cal.4th at pp.
674-675.) Involuntary manslaughter is an unintentional homicide committed with
criminal negligence. (People v. Penny (1955) 44 Cal.2d 861, 879; People v. Butler
(2010) 187 Cal.App.4th 998, 1012, 1015.) “‘[C]riminal negligence [is] unintentional
conduct which is gross or reckless, amounting to a disregard of human life or an
indifference to the consequences. [Citation.] If a defendant commits an act endangering
human life, without realizing the risk involved, the defendant has acted with criminal
negligence. By contrast where the defendant realizes and then acts in total disregard of
the danger, the defendant is guilty of murder based on implied malice. [Citation.]’
[Citations.]” (People v. Guillen (2014) 227 Cal.App.4th 934, 1027.)


                                             11
       Defendants argue that the evidence did not show an intent to kill, because it was
not proven which of the three accomplices held the knife. They also argue that the
evidence did not show a conscious disregard for or indifference to human life, because
there was evidence from which the jury could infer that they did not know Waggoner had
been stabbed. Alvara points to evidence that he and his companions came upon
Waggoner randomly; that Waggoner “rushed” one of them, said something to Miller, and
a fight ensued; that Miller was surprised when he knocked Waggoner out; and that
witnesses who saw or spoke to Waggoner afterward did not know he had been injured.
       The evidence established that defendants participated in a group attack against a
lone victim and beat him into unconsciousness as he attempted to fight back. This
evidence alone shows an awareness of the risk, even if defendants came upon Waggoner
randomly while returning from the store, attacked him only after he said something to
one of them, attacked him only with fists, and Waggoner did not die immediately. The
only evidence suggesting that a defendant did not fully appreciate the risk was Miller’s
surprise that Waggoner lost consciousness. To require a sua sponte involuntary
manslaughter instruction, there must be substantial evidence, not “minimal or
insubstantial” evidence, that the defendant acted without realizing that his conduct posed
a risk to human life. (People v. Evers (1992) 10 Cal.App.4th 588, 596-597.) The
evidence cited by defendants was insufficient to require the instruction.
       Regardless, any error in failing to give the instruction was harmless. An erroneous
failure to instruct on a lesser included offense requires reversal only if “an examination of
‘the entire cause, including the evidence,’ discloses that the error produced a ‘miscarriage
of justice.’ (Cal. Const., art. VI, § 13.) This test is not met unless it appears ‘reasonably
probable’ the defendant would have achieved a more favorable result had the error not
occurred. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)” (People v.
Breverman (1998) 19 Cal.4th 142, 149.)
       Here, the evidence of defendants’ conscious disregard for the risk to Waggoner’s
life was overwhelming. Despite Alvara’s claim that defendants just happened across
Waggoner, their statements suggest they targeted Waggoner as a pedophile or child


                                             12
molester and as an outsider in their neighborhood. Miller said they saw “some nigger
slipping in the hood” and thought he was a “child molester,” and Alvara said he thought
Waggoner was a “pedophile.” Miller said they “just walked up,” and one of his
companions “socked” Waggoner. Although Miller did not know when Waggoner was
“whacked,” the stabbing clearly occurred during the time that defendants were beating
him, as Miller left the scene with a cut finger. Further, Miller knew that Waggoner was
stabbed during the beating because he said that a companion had “stuck [him] too.”
(Italics added.) Moreover, Waggoner suffered 10 stab wounds in the chest and back and
multiple defensive wounds. It is unlikely that a rational jury would have found that
defendants were unaware that one of them or the third companion was stabbing
Waggoner while defendants were beating Waggoner into unconsciousness, or that they
did not realize the risk involved in beating a victim into unconsciousness while one of
them or a companion repeatedly stabbed the victim. Finally, defendants’ immediate
flight from the scene without summoning help implied a conscious disregard for life.
(See People v. Cravens (2012) 53 Cal.4th 500, 511.)
       We conclude it was not reasonably probable that defendants would have achieved
a more favorable result had the trial court instructed with regard to involuntary
manslaughter. The omission was thus harmless. (See Watson, supra, 46 Cal.2d at p.
836.) Further, if we applied the federal constitutional test of Chapman v. California
(1967) 386 U.S. 18, 24, we would conclude beyond a reasonable doubt that the omission
of an involuntary manslaughter instruction did not contribute to the verdicts.
III. Theft instruction
       Miller contends that the trial court erred in failing to give a sua sponte instruction
on theft as a lesser included offense of robbery.
       “‘“Theft is a lesser included offense of robbery, which includes the additional
element of force or fear.” [Citation.] If intent to steal arose only after the victim was
assaulted, the robbery element of stealing by force or fear is absent. [Citations.]’ (People
v. Bradford (1997) 14 Cal.4th 1005, 1055-1056 [to constitute robbery, intent to steal is
must be formed before or during the application of force].) ‘Nevertheless, “the existence


                                             13
of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included
offense . . . .” [Citation.]’ [Citation.] ‘Instructions on after-acquired intent and theft as a
lesser included offense of robbery are unwarranted absent “substantial evidence” that the
defendant first formed the intent to take the victim’s property after applying force.
[Citation.]’ [Citation.]” (People v. Castaneda (2011) 51 Cal.4th 1292, 1331.)
       Miller first points to additional possible motives for the attack, such as
Waggoner’s “‘talking back’”6 or defendants’ belief that Waggoner was a pedophile.
Evidence of additional motives does not provide substantial evidence that the intent to
steal was formed only after all force was applied. (People v. Castaneda, supra, 51
Cal.4th at pp. 1331-1332.) Miller next refers to several statements he made to the
informant describing the incident as “a random thing,” explaining that he picked up the
suitcase early in the confrontation, right after his companion “crack[ed] that fool,” and
adding, “So I picked up the suitcase.” He construes these statements as a denial that he
intended to take any of Waggoner’s property prior to assaulting Waggoner. Miller’s
statements included no such express denial; and even assuming that Miller did not intend
to steal the suitcase at the outset of the attack, this does not provide substantial evidence
that he did not form the intent to steal the backpack prior to the cessation of the assault.
       Miller also notes that he never told the informant just when he and his companions
formed the intent to take the backpack. Although an instruction might have been
warranted if Miller had in fact told the informant when he and his accomplices formed
the intent to steal the backpack (see, e.g., People v. Ramkeesoon (1985) 39 Cal.3d 346,
351), we reject any suggestion in Miller’s argument that the absence of evidence can
constitute substantial evidence.
       Finally Miller points out that ultimately, only the backpack was taken and the
suitcase and Waggoner’s wallet were left behind. Leaving behind some items is not




6      The pages of the transcript cited by Miller do not contain the words, “talking
back,” and we found no such quote or any indication that Waggoner said something rude.

                                              14
substantial evidence that the intent to steal the item taken was not formed before or
sometime during the assault. (See People v. Hughes (2002) 27 Cal.4th 287, 357.)
       An incapacitating attack followed by theft gives rise to the reasonable inference
that defendants intended to commit a robbery and that the intent to steal existed at the
time of the attack. (See People v. Holt (1997) 15 Cal.4th 619, 670-671.) Thus, Miller’s
admission that he grabbed the suitcase at the outset of the confrontation, just after one of
his companions struck Waggoner, strongly suggests that the three companions intended
to disable Waggoner quickly in order to take his property. Defendant’s relinquishment of
the suitcase when Waggoner fought back was more likely intended to enable him to more
effectively “chunk” Waggoner. Further, the theft of the backpack after an incapacitating
attack upon Waggoner gave rise to the reasonable inference that defendants intended to
steal it by means of force, and that their intent to steal was formed prior to the cessation
of violence. As no substantial evidence supported a contrary inference, no sua sponte
theft instruction was required. (People v. Castaneda, supra, 51 Cal.4th at p. 1331.)
       Further, without substantial evidence that the intent to steal was formed at some
time after the cessation of force rather than before or during the assault, Miller cannot
demonstrate a reasonable probability that the instruction would have produced a more
favorable result. We thus conclude that the omission was harmless under the test of
Watson, supra, 46 Cal.2d at page 836.
IV. Severance
       The trial court denied defendants’ motion to sever the trial of the two defendants
and granted the prosecution’s motion to admit their statements as nontestimonial hearsay
declarations against penal interest, under Evidence Code section 1230. Defendants
contend that the trial court erred in denying their motion for separate trials.
       A. Aranda/Bruton
       Defendants contend that the trial court should have ordered separate trials because
the recorded statements made to an informant violated the rule of Bruton v. United States
(1968) 391 U.S. 123 (Bruton). The Bruton rule provides that the Sixth Amendment
confrontation clause generally precludes the admission of a statement or confession of a


                                              15
nontestifying defendant when the admission or statement inculpates a jointly tried
codefendant. (Id. at pp. 127-128; see also People v. Aranda (1965) 63 Cal.2d 518, 529
(Aranda).)
       The confrontation clause applies only to testimonial hearsay. (Crawford v.
Washington (2004) 541 U.S. 36, 51; Davis v. Washington (2006) 547 U.S. 813, 823-826
(Davis); People v. Gonzales (2012) 54 Cal.4th 1234, 1270.) Because the Bruton rule is
premised on the confrontation clause it does not apply to nontestimonial statements.
(People v. Arceo (2011) 195 Cal.App.4th 556, 571 (Arceo).) An inmate’s surreptitiously
recorded jailhouse conversation which does not involve law enforcement interrogation, is
not testimonial. (People v. Arauz (2012) 210 Cal.App.4th 1394, 1401-1402; see Davis,
supra, at p. 825, citing Bourjaily v. United States (1987) 483 U.S. 171, 181-184
[statements unwittingly made to government informant], and Dutton v. Evans (1970) 400
U.S. 74, 87-89 [conversation between prisoners].) Thus, the Bruton rule has no
application here, and the trial court did not err in denying the motion to sever on that
ground.
       Miller suggests that we disagree with Arceo, because neither the California
Supreme Court nor the United States Supreme Court has held that the Bruton rule applies
only to the testimonial hearsay statements of a codefendant. We reject the suggestion
that we are bound by the absence of such a holding under Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455. We agree with the reasoning of Arceo and
also observe that federal appellate courts in several circuits have considered the issue and
have held that Bruton applies only to testimonial hearsay. (United States v. Vasquez (5th
Cir. 2014) 766 F.3d 373, 378-379; see, e.g., United States v. Clark (10th Cir. 2013) 717
F.3d 790, 816; United States v. Figueroa-Cartagena (1st Cir. 2010) 612 F.3d 69, 85;
United States v. Johnson (6th Cir. 2009) 581 F.3d 320, 326; United States v. Vargas (8th
Cir. 2009) 570 F.3d 1004, 1009.)
       B. Declarations against interest
       Defendants contend that the trial court erred in ruling that their statements
qualified as declarations against penal interest as an exception to the hearsay rule (Evid.


                                             16
Code, § 1230).7 Miller contends that three of Alvara’s statements were not sufficiently
incriminating to qualify as declarations against penal interest. Alvara joins in Miller’s
arguments and adds that there were several statements by Miller that were not sufficiently
incriminating to qualify as declarations against his penal interest. Defendants conclude
that because some of the statements were inadmissible hearsay, the trial court was
required to grant the motion for separate trials.
       “Our Legislature has expressed a strong preference for joint trials. [Citations.]”
(People v. Souza (2014) 54 Cal.4th 90, 109.) Thus, two or more defendants jointly
charged with the same crime must be tried jointly, unless the trial court, in its discretion,
orders separate trials. (§ 1098.) The trial court may order separate trials when “‘“there is
a serious risk that a joint trial would compromise a specific trial right of one of the
defendants . . . .”’ [Citations.]” (People v. Souza, supra, at p. 109.) Such a risk can arise
when evidence to be offered is not admissible against all defendants. (People v.
Cummings (1993) 4 Cal.4th 1233, 1283-1284.) In such a case, the defendant seeking
severance bears the burden to clearly establish that a joint trial poses a substantial danger
of prejudice; and even then, because of the preference for joint trials, the trial court may
consider other means to avoid complete severance, such as separate juries. (Id. at pp.
1286-1287.)
       As respondent notes, the trial court’s discretion must be reviewed on the basis of
the facts known by the court at the time of its ruling on the motion for separate trials.
(People v. Avila (2006) 38 Cal.4th 491, 575.) The arguments made here were not before
in the trial court at the time of the court’s ruling. Alvara’s oral motion to sever or to



7      Evidence Code section 1230 provides an exception to the hearsay rule when the
“declarant is unavailable as a witness and the statement, when made, . . . so far subjected
him to the risk of civil or criminal liability, or . . . created such a risk of making him an
object of hatred, ridicule, or social disgrace in the community, that a reasonable man in
his position would not have made the statement unless he believed it to be true.”
Defendants were unavailable because they could not be compelled to testify. (See People
v. Fuentes (1998) 61 Cal.App.4th 956, 961-962.)


                                              17
exclude Miller’s statements was made on the ground of “due process.”8 The trial court
found “due process” an insufficient ground and when defense counsel replied that he did
not believe that Miller would testify, the court construed the objection as based upon the
confrontation clause and the Bruton rule. Alvara’s counsel then argued: “[Defendants]
are talking independently to these two informants. Greenberger9 allowed somewhat
similar kind of information to be brought in. But it . . . was not hearsay because it was
considered to be a declaration against the declarant’s penal interest which not all of that
is.” The trial court indicated that it would rule once the prosecution provided transcripts
of the statements. The prosecution then filed a motion to admit the statements, arguing
that the confrontation clause was inapplicable because the statements were
nontestimonial and admissible under the exception to the hearsay rule for declarations
against penal interest. There was no argument regarding the inadmissibility under
Evidence Code section 1230, of any particular parts of the conversations. The court
reviewed the prosecution’s motion and denied the defense motion for separate trials.
       In sum, defendants moved for separate trials solely on the basis of the
confrontation clause, not on the separate ground that the evidence or any particular
passages failed to qualify as declarations against penal interest. In other words, neither
defendant brought a motion to sever on the ground that evidence that was inadmissible as
to one or the other defendants would present a substantial danger of prejudice in a joint
trial for any reason other than interference with the right to cross-examination.
       For the first time on appeal Miller contends that the trial court erred in denying the
motion to sever for the additional reason that three passages in the informant’s

8       Although Miller’s counsel did not expressly join in the severance motion, the trial
court treated the motion as brought by both defendants. Both defendants had previously
brought an unsuccessful motion under section 1538.5 to suppress the jailhouse statements
on the grounds that they had been unlawfully detained or arrested, and that the use of an
informant violated their rights under Miranda v. Arizona (1966) 384 U.S. 436, 444-445.

9      See People v. Greenberger (1997) 58 Cal.App.4th 298, 331-332 [Bruton
inapplicable to codefendant’s statement admissible under hearsay exception for
declarations against penal interest].

                                             18
conversation with Alvara were inadmissible against him, as they did not qualify as
Evidence Code section 1230 exceptions to the hearsay rule. In one passage, the
informant asked whether Alvara’s “homeboy” was there with him, and what he had been
“busted for”; Alvara replied, “Same shit. He got caught with a [unintelligible].” In the
second passage, Alvara answered, “Nah,” when the informant asked, “Can you trust him?
He’s not running his mouth?” In the third, the informant asked Alvara whether there
were witnesses who could identify him, and added, “As long as it’s just you and your
homeboy, that’s it.” Then, after the informant said something unintelligible, Alvara
replied, “He’s straight.” Miller contends that although Alvara did not identify the
homeboy accomplice, it is apparent he meant Miller. He further argues that the
statements do not qualify as declarations against penal interest because they do not make
Alvara appear more culpable than in other parts of his conversation and thus did not
increase his liability.
       Similarly, Alvara now contends that some of Miller’s statements did not qualify as
exceptions to the hearsay rule. He does not quote or paraphrase them, but simply refers
to a list of citations to 15 pages with line numbers in the transcript of the recording of
Miller’s conversation with the informant, without directing his argument to any particular
passage. We reject Alvara’s arguments as insufficiently developed. (See People v.
Williams (1997) 16 Cal.4th 153, 206.)
       In determining whether a statement qualifies for admission as a declaration against
penal interest, the trial court should examine each challenged statement in context.
(People v. Valdez (2012) 55 Cal.4th 82, 144.) “‘The trial court must look to the totality
of the circumstances in which the statement was made, whether the declarant spoke from
personal knowledge, the possible motivation of the declarant, what was actually said by
the declarant and anything else relevant to the inquiry. [Citations.]’ [Citation.]” (People
v. Arauz, supra, 210 Cal.App.4th at p. 1400, quoting People v. Greenberger, supra, 58
Cal.App.4th at p. 334.) Nevertheless, Miller did not identify for the trial court the
passages he now challenges, did not make the argument he now makes, and did not
discuss the totality of the circumstances or any circumstances regarding the conversation.


                                              19
A trial court does not err “in failing to conduct an analysis it was not asked to conduct.”
(People v. Partida, supra, 37 Cal.4th at p. 435.)
       Moreover, we agree with respondent that the three statements cited by Miller,
when viewed in the context of the entire conversation, were sufficiently incriminating to
qualify as declarations against Alvara’s penal interest. Alvara acknowledged his
participation in the crime when he said he had been “busted” for the “same shit” as his
“homeboy”; and he acknowledged disposing of the “filero” or knife that was used to
commit the crime. Further, we agree that the statements regarding whether Alvara could
trust his accomplice and whether his accomplice was “running his mouth” were, “an
integral part of the statement in which he implicated himself.” (Greenberger, supra, 58
Cal.App.4th at p. 340.)
       In sum, defendants have failed to demonstrate that the denial of the motion to
sever was an abuse of discretion. Thus, to be entitled to reversal, defendants must
demonstrate that “in the end, the joinder of . . . defendants for trial resulted in gross
unfairness depriving the defendant of due process of law. [Citations.]” (People v.
Rogers (2006) 39 Cal.4th 826, 851.) To demonstrate prejudice, defendants begin with
the presumption that the statements challenged here for the first time would have been
excluded in separate trials. Miller argues that if Alvara’s statements had been excluded,
the jury might have believed his counsel’s argument that Miller’s comments were merely
false bragging. Alvara contends that without Miller’s statements his own admissions
probably would not have been enough for the jury to convict him. As defendants have
not shown that the statements would have been excluded in separate trials, their
arguments do not demonstrate the unfairness of a joint trial. Reversal is unwarranted.
V. Cumulative error
       Defendants contend that the cumulative effect of all the errors heretofore
discussed was to deny them a fair trial. “As we have found no substantial error in any
respect, this claim must be rejected.” (People v. Butler (2009) 46 Cal.4th 847, 885.)




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                                    DISPOSITION
      The judgments are affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                             ____________________________, J.
                                             CHAVEZ

We concur:



__________________________, P. J.
BOREN



__________________________, J.
ASHMANN-GERST




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