Filed 5/30/13 P. v. Cortez CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 EIGHT



THE PEOPLE,                                                          B233833

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. BA345971)
         v.

NORMA LILIAN CORTEZ et al.,

         Defendants and Appellants.



         APPEAL from the judgment of the Superior Court of Los Angeles County.
Dennis J. Landin, Judge. Affirmed as to Bernal; reversed as to Cortez.
         Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and
Appellant Norma Lilian Cortez.
         Eric R. Larson, under appointment by the Court of Appeal, for Defendant and
Appellant Rodrigo Alonso Bernal.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews and
Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
                                                 **********
       Defendants Norma Lilian Cortez and Rodrigo Alonso Bernal were charged by
amended information with premeditated murder (Pen. Code, § 187, subd. (a); count 1)1
and attempted premeditated murder (§§ 664/187, subd. (a); count 2). It was alleged that
Bernal personally used a firearm, discharged a firearm, and discharged a firearm causing
great bodily injury or death. (§ 12022.53, subds. (b), (c), (d); counts 1 & 2). As to both
Cortez and Bernal, it was alleged that a principal personally used a firearm, discharged a
firearm, and discharged a firearm causing great bodily injury or death. (§ 12022.53,
subds. (b), (c), (d), (e)(1); counts 1 & 2). The information also included gang allegations
(§ 186.22, subd. (b)(1)(C), (4)). The defendants were found guilty by the jury, and all
special allegations were found to be true. They were each sentenced to an aggregate term
of 50 years to life.
       On appeal, Cortez contends her attorney provided her with ineffective assistance
of counsel by failing to object to the admission of evidence of the meaning of her tattoo;
the prosecutor lowered its burden of proof by misrepresenting the beyond a reasonable
doubt standard of proof; the trial court erroneously instructed the jury with CALCRIM
No. 361; the admission of Bernal’s out-of-court statements to his nephew violated her
right to confront and cross-examine witnesses, and was error under Evidence Code
sections 1230 and 352; the trial court failed to instruct the jury to view Bernal’s out-of-
court statements with caution; cumulative error; and that the trial court applied the wrong
legal standard in ruling on her motion for a new trial.
       Bernal contends the trial court erred by refusing to instruct on self-defense,
imperfect self-defense, and provocation for both second degree murder and voluntary
manslaughter. Appellants each join in the other’s arguments that may inure to their
benefit.




1      All undesignated statutory references are to the Penal Code, unless otherwise
indicated.


                                              2
       Finding merit in Cortez’s contentions regarding prosecutorial conduct, CALCRIM
No. 361, Evidence Code section 1230, and cumulative error, we reverse her conviction
on these grounds. We affirm as to Bernal.
                                         FACTS
       On September 3, 2008, childhood friends Miguel Guzman, 16 years old, and
Emanuel Z., 19 years old, lived in the neighborhood near the intersection of 5th and
Bonnie Brae Streets in Los Angeles. There was a lot of 18th Street gang graffiti in the
area, and gang members frequented the neighborhood. Guzman and Emanuel were not
gang members. As they were crossing 5th Street near the corner of Bonnie Brae Street,
Emanuel heard a woman ask, “Where you guys from?” Emanuel saw a car driven by
Cortez, with Bernal in the passenger seat, and a male in the back seat. The driver’s
window was down. Guzman and Emanuel did not respond and kept walking.
       Emanuel heard the same woman’s voice say, “Let them have it.” He saw the car
driven by Cortez stop. Guzman asked Emanuel, “Are they going to shoot or no[?]”
Bernal got out of the car. He pulled a dark-colored gun from his waist, put his left hand
on top of the car, and started shooting across the roof of the car at Guzman and Emanuel.
Emanuel ran as soon as he saw the gun. Guzman appeared startled and put up his hands.
Bernal shot five or six times, killing Guzman. Guzman did not have a gun and no one
shot back at Bernal.
       Emanuel ran inside a building at 504 South Bonnie Brae Street. Guzman was
behind him, but Emanuel did not know if Guzman made it to the building. When
Emanuel went to the building’s balcony, he saw Guzman on the pavement below, being
tended to by paramedics. Emanuel tried to leave but police would not let anyone out of
the building. He did not immediately speak with police because he was “shocked” and
afraid to talk to police. He spoke with detectives about a week after the shooting, when
they encountered him unexpectedly at Guzman’s house while Emanuel was visiting with
Guzman’s family. Emanuel identified Bernal as the shooter from a six-pack photo array
and during the preliminary hearing, but not at trial. He identified three women in a six-
pack photo array as resembling Cortez.

                                             3
       David R. also lived in the neighborhood near 5th and Bonnie Brae Streets. He
heard the sound of brakes slamming, and saw a light beige car driven by Cortez, with
Bernal as a passenger, stop suddenly. He thought a child was in the back seat. He saw
defendants yelling at Guzman, but could not tell what was being said because they were
yelling over each other. Guzman may have responded “18th Street,” but continued
walking. Bernal got out of the car and pulled a gun from his waist and started shooting.
Guzman put up his hands and looked scared. After the final gunshot, the beige car
moved a couple of feet forward, and stopped when Bernal said, “Hold on, . . . hold on.”
Once Bernal got in the car, he said, “Let’s go, let’s go.” The car drove south on Bonnie
Brae Street. David called 911, giving the operator a partial license plate number, and
then noticed Guzman lying on 5th Street, not moving or breathing. Police spoke to David
on the day of the shooting as they went door to door canvassing the neighborhood.
       Marvin B. also lived in the neighborhood. He was in his apartment when he heard
a gunshot and, from his window, saw Bernal standing next to a parked car and firing
shots. He heard more shots and saw Bernal chase someone across the street. He heard
more gunshots after Bernal left his line of sight. Marvin walked outside and saw
defendants’ car on 6th Street, turning right on Alvarado Street. He saw the female
driver’s face. He spoke with police at the scene shortly after the shooting and provided a
description of Cortez to police. That same day, he identified Cortez in a field showup.
       Los Angeles Police Officer Javier Ramirez responded to the scene at 4:15 p.m.
Guzman was bleeding from his mouth and not breathing. Because the shooting happened
in 18th Street gang territory, responding officers drove to rival gang Rockwood’s nearby
turf. They saw a car matching the description and license plate of the suspect, double-
parked in the middle of the street in front of 401 Witmer Street, with its hazard lights on.
Cortez was in the driver’s seat and was taken into custody. A live round was found on
the passenger side of the car, of the same caliber and brand of several found at the scene
of the shooting.
       Cortez was interviewed by police on the evening of September 3, 2008. A
recording of the interview was played for the jury. She said that on the day of the

                                             4
shooting, Bernal asked for a ride to pick up some money. They stopped and picked up a
friend of Bernal’s, who was “very young” and dressed in “gangster attire.” Bernal sat in
the front passenger seat, and his friend sat in the back. Bernal instructed her to “just
drive around.” He then told her to stop at 3rd and Bonnie Brae Streets so he and his
friend could get out, and to keep on driving as they would catch up with her. As she was
driving, she heard some gunshots from two blocks away at 5th and Bonnie Brae Streets.
Bernal and his friend then got back in her car. She did not know what had happened, and
she did not ask them about the gunshots. She drove to where she was ultimately arrested,
where Bernal and his friend got out of her car and told her to wait. Cortez had known
Bernal for about a year. They were friends, even though she was in her 40’s and he was
in his 20’s. She did not believe Bernal was a gang member, but he did associate with the
Rockwood gang. She admitted that Bernal had a gun that he “always carries.”
       Later in the interview, Cortez changed her story, admitting her previous story was
not true. She said that before the shooting, she heard Bernal yelling “Where you from?”
to two young men whom Cortez believed to be gang members. They responded, “18th
Street.” Bernal yelled, “Rockwood.” Cortez told Bernal to “[l]et it go.” But Bernal
jumped out of the car, and then she heard gunshots. The back-seat passenger did not get
out of the car. Cortez kept driving, but did not get far because of traffic. Bernal ran and
jumped back in the car. She started to “cuss[] him out.” He said nothing to her except,
“drive.” She kept driving, and she was scared. Bernal told her to stop, and she parked
and put on her hazard lights. Bernal and his friend took off to stash the gun.
       Detective John Motto investigated the shooting. He testified that six bullet
casings, and one expended bullet, were found at the scene. There were casings found on
Bonnie Brae and 5th Streets. They were all nine-millimeter. It could not be determined
where the shooter was standing from the casings alone because they can discharge from
the gun in different directions, and could roll downhill to a different location. The
casings were from two different brands of bullets. However, it was common for officers
to find casings from multiple manufacturers at one crime scene that were discharged from
the same gun.

                                              5
        On September 4, 2008, police interviewed Bernal’s 17-year-old nephew, Oscar
Tejeda. Tejeda’s taped interview was played for the jury. The interviewing officer
falsely told Tejeda that Bernal had confessed to the shooting. Tejeda told the officer that
Bernal was a member of the Rockwood gang and goes by the moniker “Scooby.” Tejeda
had seen Cortez socializing with Bernal and other members of the Rockwood gang.
According to Tejeda, Bernal stopped by his apartment on September 3 to drop off some
marijuana that he did not want to get caught with. While at the apartment, Bernal told
Tejeda “he went shooting with some -- somebody at some woman I think.” He said “he
went with some lady to go shoot somebody.” Bernal said “[h]e was shooting.” Bernal
told Tejeda “yesterday we went and we shot at two 18s.” He said the “driver was a girl.”
Tejeda could not remember the female’s name, but knew that she lived in his apartment
building, and he knew who she was. Tejeda believed she was dating another member of
Rockwood.
        When Detective Michael Arteaga asked Tejeda to tell him exactly what Bernal
said, Tejeda responded, “I don’t remember how he told me exactly . . . . He’s like, we
went, me and this woman, don’t know her name, we went to -- we went shooting some
18s, like at some 18s.” Bernal did not tell Tejeda what he had done with the gun. Bernal
told Tejeda he “shot two 18s.” Bernal also said that police had caught Cortez in her car
while she waited for him.
        Tejeda identified Cortez from a six-pack photo array. Detective Arteaga asked
whether Cortez’s name was “Stephanie,” “Sylvia,” “Nancy,” “Mickey,” “Martha,” or
“Norma.” Tejeda said he believed her name is Norma, which is in fact Cortez’s first
name.
        At trial, Tejeda testified that police came to his house with their guns drawn and
handcuffed him and his sister. Some hours later police asked him for a gun and said that
if he did not hand it over, he would be arrested for aiding a murder suspect. Tejeda told
police he did not know what they were talking about. He was scared. Police took Tejeda
to the station. At the station, he lied to police about what Bernal had told him. In fact,
Bernal did not say anything about a shooting. Tejeda felt pressured by the police to lie.

                                              6
       Tejeda did testify that Bernal was a member of the Rockwood gang. He admitted
that the detective who interviewed him was friendly and polite. He also admitted that he
had seen Cortez and Bernal socializing before with members of the Rockwood gang.
       Gang expert Antonio Hernandez testified that the Rockwood and 18th Street gangs
are enemies and occupy adjacent territories. Gang members would not casually enter the
territory of a rival gang. Bernal was a member of Rockwood, with the monikers
“Scooby” or “Woody.” The primary activities of the Rockwood gang are robberies,
assaults, extortion, criminal threats, felony vandalisms and narcotics sales. Hernandez
did not know Cortez to be a member of the Rockwood gang.
       Cortez has a triangular, three-dot tattoo on her arm. According to Hernandez, both
gang members and nongang members may have this tattoo. However, it is a common
tattoo for gang members and associates. The tattoo signifies the “crazy life,” suggesting
that its bearer is living a life of doing drugs, drinking, and committing crimes. Victim
Guzman also had such a tattoo. Hernandez did not believe that Cortez and Guzman were
gang members. However, someone is a gang associate if they hang out with gang
members, but have not been formally admitted into the gang. Hernandez did not believe
Emanuel was a gang member either.
       When a gang member asks, “Where are you from,” it is a challenge, intended to
initiate a confrontation. Based on a hypothetical mirroring the facts of this case,
Hernandez believed the shooting was for the benefit of the Rockwell gang.
       While Bernal was in jail, he tried to send a letter to a Rockwell gang member, Jose
Birrueta. In the letter, Bernal told Birrueta Cortez’s full name and booking number, and
asked if he “could go and see her at Lynwood jail and talk to her to see what she’s saying
with me or against me. If she’s against me write to me and let me know what’s up so I
can make a game plan. If she’s with me let me know what she’s saying and tell her to
change her story because they don’t have anything on both of us to say that I wasn’t with
her that day to let me go. She’s the only one holding me back so when I get out I could
help her with a lawyer.” Bernal asked Birrueta to “convince her to say I was not with
her, that they scare her, the police did, and she was just nervous and she just confused.”

                                             7
Bernal also wrote “here’s the name of the other fool who’s snitching me out. Emanuel
Z[.] [¶] . . . [¶] My nephew talked to him to say the police scare him and threatened
him. So when the detectives came he said what he say, so to say different. He was
scared, but it was a lie, what he said when he gets to court. My sister’s kid.”
       Cortez testified in her own defense. She was not a member of a gang, and was not
involved in any kind of gang mission on the day of the shooting. Bernal asked her for a
ride so he could pick up some money he had loaned to someone. Cortez told him she
would need gas money if she gave him a ride, and he agreed. They started driving on 6th
Street near Bonnie Brae and Alvarado Streets, and picked up Bernal’s teenage friend,
who got in the back seat. Bernal did not ask for permission to give his friend a ride, and
Cortez did not ask why he got into the car. She figured he was Bernal’s friend and he
was probably in the car because he owed Bernal the money. She did not care and did not
see anything wrong in the situation. Bernal told Cortez to continue driving, and he would
direct her where to go.
       As they neared the intersection of 5th and Bonnie Brae Streets, Cortez saw two
young men in the street, yelling “18th Street” and making signs with their hands. No one
in her car responded to the young men. However, Bernal jumped out of her still moving
car without saying a word. Cortez saw one of the young men “reaching like a motion like
to getting a gun.” She was still driving, and then heard gunshots. Bernal then got back
into the car and said, “let’s go.”
       Bernal directed Cortez to another location. She stopped where Bernal told her to,
and Bernal and his friend got out of the car. Cortez knew that something bad had
happened but did not want to ask what because she was scared. She put on her hazard
lights and waited for Bernal to return. She was a “bundle of nerves” and did not go home
because she was not thinking. She was “frozen” and did not know what to do. The
police arrived 10 minutes later, and she was arrested. She initially was not truthful with
the police because she was scared.
       Cortez believed Bernal to be a nice, helpful person, and she did not think he was a
gang member. She met him when she moved into her apartment, and Bernal and some of

                                             8
his friends offered to help her with her groceries. She testified that was “how we
developed . . . a friendship.” Their relationship was platonic. However, she admitted
telling police that Bernal talked a lot about the Rockwood gang and was proud of it, and
that she knew him to get in fights and carry a gun at all times. Cortez also admitted that
she knew she lived in Rockwood gang territory, but later denied that there was gang
activity in her neighborhood or the neighborhood where the shooting occurred.
       Cortez’s son, Steven McBride, knew Bernal and assumed he was a gang member.
He had seen his mother and Bernal hang out together.
       Cortez’s ex-husband, Schuyler McBride, testified that when he first started dating
Cortez, he “[did]n’t believe she was a [gang] member,” although she had friends who
were gang members. They both socialized with gang members in their community.
Because Cortez and McBride socialized with gang members, they had “street smarts
about gangs,” and knew “what gangs were all about.” When asked whether it would
surprise McBride to learn that Cortez was friends with Bernal, he responded, “No.”
       The pastor and a member of Cortez’s church, New Hope Ministries, testified that
Cortez attended Bible study and was involved in some of the church’s outreach programs.
According to pastor Troy Nakama, the ministry “is very unique because it reaches out to
people that normally wouldn’t attend churches. We target individuals that are struggling
in life and such.” The ministry runs a gang outreach program, including a men’s
rehabilitation. Pastor Nakama could not recall Cortez being involved in any of the
ministry’s outreach programs, but Susana Rodriguez, Cortez’s friend and a member of
her church, believed Cortez did some outreach work, although Cortez was not involved in
gang outreach specifically.
       Kimi Lent, a gang interventionist, testified that gangs are more prevalent in low
income communities, and that people in such communities had fewer resources, and
would rely on each other for transportation. In gang culture, a “mission” is a planned
crime. Driveby shootings can be conducted as part of a mission. Gang members would
not normally carry out a mission with a nongang member.



                                             9
       Bernal presented the testimony of Dr. Mitchell Eisen, a psychologist with
expertise on eyewitness identifications and suggestibility, who opined that witness
identifications when weapons are involved may be less reliable because witnesses tend to
focus on the weapons rather than the suspect, and that police administering identification
procedures may influence those identifications.
                                      DISCUSSION
       Cortez and Bernal raise a number of claims of error on appeal. Cortez contends
the prosecutor lowered the burden of proof by misrepresenting the beyond a reasonable
doubt standard; the trial court erroneously instructed the jury with CALCRIM No. 361;
and the admission of Bernal’s out-of-court statements to his nephew violated her right to
confront and cross-examine witnesses, and was error under Evidence Code section 1230.
We find merit in these contentions and find the cumulative errors prejudiced her. We
reverse her conviction on these grounds. For this reason, we need not address her
remaining contentions, except to the extent they inure to Bernal’s benefit and Bernal joins
in them. Bernal, for his own part, contends the trial court erred by refusing to instruct on
self-defense, imperfect self-defense, and provocation. We find no merit in Bernal’s
contention or Cortez’s contentions as they apply to him. We therefore affirm his
conviction.
1. Prosecutorial Misconduct in Rebuttal Argument
       Cortez contends the prosecutor misrepresented the beyond a reasonable doubt
standard of proof during his rebuttal argument when he said, “The court told you that
proof beyond a reasonable doubt is not proof beyond all possible doubt or imaginary
doubt. Basically, I submit to you what it means is you look at the evidence and you say,
‘I believe I know what happened, and my belief is not imaginary. It’s based in the
evidence in front of me.’ ” We agree with Cortez that the prosecutor’s statements
constituted misconduct and were prejudicial.
       “A prosecutor who uses deceptive or reprehensible methods to persuade the jury
commits misconduct, and such actions require reversal under the federal Constitution
when they infect the trial with such unfairness as to make the resulting conviction a

                                             10
denial of due process. [Citation.] Under state law, a prosecutor who uses such methods
commits misconduct even when those actions do not result in a fundamentally unfair
trial.” (People v. Ellison (2011) 196 Cal.App.4th 1342, 1352-1353.) The prosecutor’s
improper conduct need not be intentional to constitute reversible error. (People v. Bolton
(1979) 23 Cal.3d 208, 214.)
       “It is improper for the prosecutor to misstate the law generally, and in particular,
to attempt to lower the burden of proof.” (People v. Ellison, supra, 196 Cal.App.4th at
p. 1353.) “[W]hen the claim [of prosecutorial misconduct] focuses upon comments made
by the prosecutor before the jury, the question is whether there is a reasonable likelihood
that the jury construed or applied any of the complained-of remarks in an objectionable
fashion.” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) We reverse a defendant’s
conviction because of prosecutorial misconduct when “it is reasonably probable the result
would have been more favorable to the defendant in the absence of the misconduct.”
(People v. Ellison, supra, at p. 1353.)
       The prosecutor’s remarks in the present case misrepresented the “beyond the
reasonable doubt standard” and constituted a fundamental misstatement of the law. Proof
beyond a reasonable doubt -- that is, “proof that leaves you with an abiding conviction
that the charge is true” (CALCRIM No. 220) -- is a qualitatively different and higher
standard than a “not imaginary” belief based on the evidence. Something so little as a
strong suspicion may support the statement “I believe I know what happened based on
the evidence in front of me,” but it cannot be disputed that a conviction based on a mere
belief (imaginary or otherwise) or strong suspicion does not comport with due process.
(Victor v. Nebraska (1994) 511 U.S. 1, 5 [beyond a reasonable doubt standard a
requirement of due process].) A preponderance of the evidence may also support a
nonimaginary belief, though that means only that the evidence on one side outweighs the
evidence on the other side. (People ex rel. Brown v. Tri-Union Seafoods, LLC (2009)
171 Cal.App.4th 1549, 1567; CACI No. 200.) Clearly, it is a lower standard than proof
beyond a reasonable doubt and is also insufficient to support a criminal conviction.
(People v. Gaytan (1940) 38 Cal.App.2d 83, 87.) The prosecutor committed misconduct

                                             11
when he misstated the reasonable doubt standard. (See, e.g., People v. Ellison, supra,
196 Cal.App.4th at p. 1353 [prosecutor committed misconduct by arguing to the jury that
reasonable doubt standard required jury “to determine whether defendant’s innocence
was reasonable”]; People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1268
[prosecutor’s use of puzzle analogy “convey[ed] an impression of a lesser standard of
proof than the constitutionally required standard of proof beyond a reasonable doubt” and
constituted misconduct]; People v. Nguyen (1995) 40 Cal.App.4th 28, 36 [prosecutor’s
argument that people apply reasonable doubt standard “ ‘every day’ ” and that it was
same standard people used in deciding whether to change lanes trivialized the standard
and was improper].)
       Moreover, when viewed in context, there is a reasonable likelihood the jury
construed the prosecutor’s remarks in a fashion that lowered the People’s burden of
proof. It is true the court properly instructed the jurors on proof beyond a reasonable
doubt and told them that if the attorneys’ comments on the law conflict with the
instructions, they must follow the instructions. And while we presume the jury followed
the court’s instructions, that presumption applies only absent a contrary showing in the
record. (People v. Burch (2007) 148 Cal.App.4th 862, 869.) There is such a showing
here. The court first gave the pertinent instructions, and then the parties proceeded to
make their closing arguments. Cortez’s counsel equated proof beyond a reasonable doubt
with proof sufficient for a mother to convict her child. In rebuttal, the prosecutor argued
that defense counsel’s characterization of the standard was “ridiculous.” He then invoked
the court’s instruction on reasonable doubt and purported to tell the jury what it meant.
(“The court told you that proof beyond a reasonable doubt is not proof beyond all
possible doubt or imaginary doubt. Basically, I submit to you what it means is you look
at the evidence and you say, ‘I believe I know what happened, and my belief is not
imaginary.’”) Defense counsel objected that the prosecutor had misstated the law, and
the court overruled the objection without any further comment.
       The jury observed a dispute over what the reasonable doubt standard meant.
Defense counsel said one thing and the prosecutor said another. When defense counsel

                                             12
objected to the prosecutor’s statements, the court’s ruling signaled to the jury that the
prosecutor’s description of the standard was unobjectionable. The court did not give a
curative instruction, admonish the jury to follow the court’s instructions, or read the
reasonable doubt instruction after closing arguments. The jury went directly into
deliberations with the court’s implicit endorsement of the prosecutor’s misstatement.
Under these circumstances, it was reasonably likely the jury construed the prosecutor’s
misstatement of the burden of proof in an objectionable fashion.
       These circumstances distinguish this case from those relied on by respondent. In
People v. Katzenberger, supra, 178 Cal.App.4th at page 1268, and People v. Nguyen,
supra, 40 Cal.App.4th at page 36, the courts determined the prosecutors’ arguments
misstating the burden of proof did not prejudice the defendants. In People v.
Katzenberger, the jury was alerted to the dispute over the prosecutor’s improper
argument, and the court told the jury “it would ‘clarify’ the issue by reading the jury
instruction on reasonable doubt.” (People v. Katzenberger, at p. 1268.) In People v.
Nguyen, the defendant did not object to the misstatement and the prosecutor directed the
jury to read the reasonable doubt instruction, despite the misstatement. (People v.
Nguyen, at p. 36.) In neither of these cases did the court implicitly endorse the
prosecutor’s misstatement to the degree it did here.
       Bernal joined in Cortez’s arguments (Cal. Rules of Court, rule 8.200(a)(5)), but we
find no reversible error with regard to him. The evidence against Bernal was especially
strong. He brought a gun along for the ride with Cortez, admitted to his cousin that he
committed the shooting, made incriminating statements in his letter to a fellow gang
member, and Emanuel identified him as the shooter.
2. CALCRIM No. 361
       Cortez contends the trial court erred when it instructed the jury with CALCRIM
No. 361. CALCRIM No. 361 provides: “If the defendant failed in (his/her) testimony to
explain or deny evidence against (him/her), and if (he/she) could reasonably be expected
to have done so based on what (he/she) knew, you may consider (his/her) failure to
explain or deny in evaluating that evidence. Any such failure is not enough by itself to

                                             13
prove guilt. The People must still prove the defendant guilty beyond a reasonable doubt.
[¶] If the defendant failed to explain or deny, it is up to you to decide the meaning and
importance of that failure.” We review this assertion of instructional error de novo.
(People v. Lamer (2003) 110 Cal.App.4th 1463, 1469.) Having done so, we are
persuaded the trial court erred in this instance.
       In order for the court to give this instruction, there must be facts or evidence in the
prosecution’s case within the defendant’s knowledge that the defendant failed to explain
or deny. (People v. Lamer, supra, 110 Cal.App.4th at p. 1469.) This instruction has been
the target of some hostility. As one court has emphasized, “it should not even be
requested by either side unless there is some specific and significant defense omission
that the prosecution wishes to stress or the defense wishes to mitigate. In the typical case
it will add nothing of substance to the store of knowledge possessed by a juror of average
intelligence.” (People v. Haynes (1983) 148 Cal.App.3d 1117, 1120.) Mere conflict
between the defendant’s testimony and that of prosecution witnesses is not a failure to
explain or deny, nor is a failure to recall specific details. (People v. Saddler (1979) 24
Cal.3d 671, 682; People v. Roehler (1985) 167 Cal.App.3d 353, 393.) Neither one paves
the way for giving this instruction. (People v. Saddler, supra, at p. 682; People v.
Roehler, supra, at p. 393.) Moreover, “the test for giving the instruction is not whether
the defendant’s testimony is believable. [The instruction] is unwarranted when a
defendant explains or denies matters within his or her knowledge, no matter how
improbable that explanation may appear.” (People v. Kondor (1988) 200 Cal.App.3d 52,
57; see also People v. Lamer, supra, 110 Cal.App.4th at p. 1469.)
       Here, Cortez did not fail to explain or deny any fact or evidence within her
personal knowledge. She generally explained her actions the day of the shooting. She
explained why she gave Bernal a ride (to pick up some money), why she drove to the area
of the shooting (she was following Bernal’s directions), and why she waited for Bernal
after the shooting (she was scared, nervous, and not thinking straight). Respondent is
simply incorrect when it asserts that Cortez failed to explain a number of things within
her knowledge. For instance, respondent argues Cortez did not explain a three-hour

                                              14
discrepancy between the time she said the shooting occurred (approximately 1:00 p.m.)
and the time prosecution witnesses said it occurred (approximately 4:00 p.m.). A conflict
in the evidence does not equate to a failure to explain. (People v. Saddler, supra, 24
Cal.3d at p. 682.) Still, when confronted with the discrepancy on cross-examination, she
explained it. She admitted that she was not “quite sure” the shooting occurred around
1:00 p.m., and it was probable she had been mistaken when she said that it occurred early
in the day. Respondent also argues she did not explain whether she thought Bernal’s
friend was dressed like a gang member. But Cortez explained the friend’s dress, and if
there was any failure to explain, it was only because the prosecutor cut her off. The
prosecutor asked if Bernal’s friend was “dressed like a gangster”; Cortez responded that
he was wearing a very loose shirt, “[t]he way kids dress now.” The prosecutor slightly
reworded the question to ask if Cortez thought he was dressed like a gangster, and she
replied, “I see so many kids that dress like him.” He then asked, “Are you just going to
refuse to answer my question?” She responded, “No, because --,” after which the
prosecutor cut her off and asked another question. In yet another instance, respondent
argues Cortez failed to explain why she did not stop the car to let Bernal in after the
shooting. To the contrary, she explained she was not going to “stop and check” because
gunfire had just occurred and she was scared. As a final example, respondent maintains
she failed to explain how a live bullet ended up on the floorboard of her car. In fact, she
testified she did not put the bullet there, she had no idea how it got there, and she did not
know if it was there before Bernal got into the car because she did not check the car
before then. Cortez explained that the bullet’s presence was not within her personal
knowledge. She need not have speculated how the bullet came to be there. (See People
v. Lamer, supra, 110 Cal.App.4th at p. 1469 [instruction proper only when defendant
fails to explain matters within his or her knowledge].)
       Respondent further asserts that several of Cortez’s statements were implausible
and therefore justified the instruction. Whether respondent found her statements
plausible is not the test, however. (People v. Lamer, supra, 110 Cal.App.4th at p. 1469.)
The instruction should not have been given.

                                             15
3. Confrontation Clause and Evidence Code Section 1230
       Cortez contends that evidence of Bernal’s statements to his nephew were
inadmissible under Crawford v. Washington (2004) 541 U.S. 36 (Crawford) because they
were out-of-court statements implicating her, and she was not able to cross-examine
Bernal, violating her rights under the Sixth Amendment confrontation clause.
       The confrontation clause is violated only by the admission of testimonial hearsay
statements, which the statements here were not. (People v. Loy (2011) 52 Cal.4th 46,
66.) In our recent decision in People v. Arceo (2011) 195 Cal.App.4th 556 (Arceo), we
rejected the defendant’s objection to statements as a violation of his Sixth Amendment
confrontation rights. The defendant sought to exclude out-of-court statements by
nontestifying codefendants that implicated him in the crimes. As Cortez does here, the
defendant claimed the statements were inadmissible under Bruton v. United States (1968)
391 U.S. 123 and People v. Aranda (1965) 63 Cal.2d 518. We held the confrontation
clause has no application to nontestimonial out-of-court statements by codefendants.
(Arceo, at p. 571.) In People v. Cervantes (2004) 118 Cal.App.4th 162 (Cervantes), the
court held that when it was not reasonably anticipated that a statement would be used at
trial, the statement was not “testimonial” within the meaning of Crawford. (Cervantes, at
p. 174.) When Bernal confided in his nephew, he did not speak with the belief that his
statements would be used at trial. His statements to his nephew were casual remarks
made to a family member, in the family home, and were not testimonial under Crawford.
(People v. Loy, at pp. 66-67.)
       Still, the California codified rules of evidence apply to nontestimonial statements.
Bernal’s statements were admissible against Cortez only if they fell within an exception
to the hearsay rule and “otherwise satisfie[d] the constitutional requirement of
trustworthiness.” (Cervantes, supra, 118 Cal.App.4th at p. 177; see also Arceo, supra,
195 Cal.App.4th at pp. 573-574.) The trial court ruled that Bernal’s remarks to his
nephew were reliable and were admissible as declarations against penal interest. We
disagree that Bernal’s out-of-court statements were admissible against Cortez.



                                            16
       A trial court’s admissibility ruling under Evidence Code section 1230 is reviewed
on appeal for abuse of discretion. (People v. Brown (2003) 31 Cal.4th 518, 536
(Brown).)2 “Evidence Code section 1230 provides that the out-of-court declaration of an
unavailable witness may be admitted for its truth if the statement, when made, was
against the declarant’s penal interest. The proponent of such evidence must show ‘that
the declarant is unavailable, that the declaration was against the declarant’s penal interest,
and that the declaration was sufficiently reliable to warrant admission despite its hearsay
character.’” (People v. Lucas (1995) 12 Cal.4th 415, 462.) Generally, this hearsay
exception is “inapplicable to evidence of any statement or portion of a statement not itself
specifically disserving to the interests of the declarant.” (People v. Leach (1975) 15
Cal.3d 419, 442.) “There is no litmus test for the determination of whether a statement is
trustworthy and falls within the declaration against interest exception. 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.”
(Greenberger, supra, 58 Cal.App.4th at p. 334, italics added.)
       In the present case, Bernal’s statements to the effect that he and a woman went to
commit a shooting were not sufficiently trustworthy to be admitted against Cortez.
Bernal apparently told his nephew this in several different statements. (E.g., “we went,
me and this woman, don’t know her name, we went to -- we went shooting some 18s, like
at some 18s”; “yesterday we went and we shot at two 18s”; “he went with some lady to
go shoot somebody.”) The references to a woman or lady and the phrase “we went”


2      Cortez contends that the proper standard of review is de novo. (See Cervantes,
supra, 118 Cal.App.4th at p. 174 [“we conclude it is appropriate to conduct a de novo
review of the totality of the circumstances that surround the making of the statement”].)
However, we are bound to follow the Supreme Court’s determination of the standard of
review in Brown and find that the great weight of authority has employed the abuse of
discretion standard of review. (See People v. Lawley (2002) 27 Cal.4th 102, 153-154;
People v. Greenberger (1997) 58 Cal.App.4th 298, 335-336 (Greenberger); People v.
Wilson (1993) 17 Cal.App.4th 271, 276.)


                                             17
necessarily implied that he and Cortez went to go shoot someone that day. The
statements suggest Cortez knew of a plan to commit the shooting and went along with it.
Indeed, the prosecutor argued to the jury that Bernal’s statements were evidence Cortez
knew of Bernal’s purpose and had the intent to assist him. The prosecutor stated: “And
when the nephew talked to the police about what his uncle told him, he repeatedly said
that his uncle told him we went, we went and shot at some 18ths. That is how you know
she had the knowledge of his purpose going there and she had the intent to assist him.”
However, Bernal could not speak from personal knowledge in describing Cortez’s state
of mind. His statements in that respect were speculation and hence not trustworthy.
(People v. Valencia (2006) 146 Cal.App.4th 92, 103-104 [“In the absence of personal
knowledge, a witness’s testimony or a declarant’s statement is no better than rank hearsay
or, even worse, pure speculation.”].) References to “we,” a lady, or a woman could have
easily been redacted from Bernal’s statements, leaving other relevant portions that
amounted to a confession on his part. For example, his statement that “he went with
some lady to go shoot somebody” could have been redacted to say “he went . . . to go
shoot somebody.” We agree with the notion that his statements were admissible against
him because they were against his penal interest, were made in a setting that promoted
truthfulness (a discussion in the family home between close family members), and were
trustworthy to the extent he reported on this own actions and thoughts. As against
Cortez, though, they lacked a guarantee of trustworthiness, and they should not have been
admitted without at least redacting the portions that specifically implicated her.
4. Cumulative Error
       Cortez contends that even if no individual errors were prejudicial alone, the
cumulative effect of multiple errors require reversal. When a defendant claims
cumulative error the “test is whether defendant received due process and a fair trial.”
(People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.) “[W]e review each allegation
and assess the cumulative effect of any errors to see if it is reasonably probable the jury
would have reached a result more favorable to defendant in their absence.” (Ibid.) The
cumulative effect of the errors discussed ante -- prosecutorial misconduct, instructing the

                                             18
jury with CALCRIM No. 361, and the admission of Bernal’s out-of-court statements
against Cortez -- require reversal.
       The case against Cortez was close and not particularly strong. Her conviction was
based on aiding and abetting liability. Cortez admitted that she drove Bernal around the
afternoon of the shooting and was present when the shooting occurred. There was no real
dispute about her conduct on the day of the shooting. But the People had to also prove
that Cortez knew Bernal intended to commit murder and she intended to aid and abet him
in that crime. (CALCRIM No. 401.) Thus, the primary issue with which the jury had to
grapple was whether she had the requisite knowledge and intent.
       On the one hand, Emanuel testified he heard a woman say, “Where you guys
from?” and “Let them have it,” right before the shooting. On the other hand, Cortez’s
testimony suggested that she did not have knowledge of Bernal’s purposes or intend to
aid him in committing a crime. She testified that she was not a gang member and was not
involved in any kind of gang mission on the day of the shooting. She drove Bernal
because he asked for a ride to pick up some money, and in exchange he was to give her
gas money. She said Bernal jumped out of her moving car without announcing what he
was doing, she heard gunshots, and then he got back into the car. She knew something
bad had happened but did not want to ask questions because she was scared. While her
out-of-court statements to police were not entirely consistent with her trial testimony, she
was consistent that she believed she was giving Bernal a ride to pick up money and did
not seem to know of any plan to commit a shooting. Her pastor and church friend
testified that she attended Bible study and was involved in the ministry’s outreach
programs. In short, only circumstantial evidence supported Cortez’s knowledge of
Bernal’s purpose and intent to aid him, and her testimony was direct evidence to the
contrary.
       The jury likely understood a nonimaginary belief in Cortez’s guilt was sufficient
to convict her, given the prosecutor’s misstatement lowering the People’s burden of
proof. CALCRIM No. 361 suggested to the jury that Cortez might have failed to explain
or deny evidence against her and invited the jury to draw a negative inference on that

                                             19
basis, even though there was no such failure on her part. And the admission of Bernal’s
speculative and untrustworthy statements to his nephew about Cortez’s state of mind
permitted the prosecutor to in turn speculate about Cortez’s knowledge and intent. The
prosecutor’s argument suggested these statements were the best evidence of her
knowledge and intent. In a close case against Cortez, it is reasonably probable that
misadvising the jury on the burden of proof, calling attention to a negative inference that
has no applicability, and admitting untrustworthy statements as to Cortez combined to tip
the balance against her. We must reverse Cortez’s conviction on this basis.
5. Self-defense
       Bernal contends the trial court erred when it denied his counsel’s request for
instructions on self-defense, imperfect self-defense, and provocation (for both second
degree murder and voluntary manslaughter). At trial, defense counsel contended the
evidence warranted the instructions because the victims may have initiated a gang
confrontation by “throwing gang signs [and] yelling,” and because there were shell
casings scattered about, implying that the victims may have been shooting as well. The
trial court concluded that its role was to determine “whether there was evidence which, if
believed by the jury, is sufficient to raise a reasonable doubt. [¶] And frankly, based on
the state of the evidence, I don’t see that in this case.” We agree with the trial court here.
       A trial court must instruct on an asserted defense, including self-defense, if there is
sufficient evidence from which a reasonable juror could find the defense applicable.
(People v. Koontz (2002) 27 Cal.4th 1041, 1046; People v. Breverman (1998) 19 Cal.4th
142, 154 (Breverman).) When the trial court refuses a proposed instruction for lack of
evidence, we review the record de novo to determine whether the record contains
substantial evidence to warrant the instruction. (People v. Manriquez (2005) 37 Cal.4th
547, 581, 584; People v. Cruz (2008) 44 Cal.4th 636, 664.) Substantial evidence is
“ ‘ “evidence from which a jury composed of reasonable [persons] could . . .
conclude[]” ’ ” that the particular facts underlying the instruction did exist. (Cruz, at p.
664; see also People v. Wilson (2008) 43 Cal.4th 1, 16.)



                                              20
       Self-defense requires that a defendant actually and reasonably believes in the need
to defend against imminent bodily injury or death. (People v. Humphrey (1996) 13
Cal.4th 1073, 1081; Breverman, supra, 19 Cal.4th at p. 154; see also §§ 197 [homicide
justified when killing is accomplished in defense of self or others], 198 [circumstances
excusing homicide must be “sufficient to excite the fears of a reasonable person, and the
party killing must have acted under the influence of such fears alone”].) A jury must
consider what “ ‘would appear to be necessary to a reasonable person in a similar
situation and with similar knowledge . . . .’ ” (Humphrey, at pp. 1082-1083.) If the
defendant acts under the subjective but objectively unreasonable belief he or she is in
imminent danger of great bodily injury or death, the killing is considered to have resulted
from “imperfect self-defense.” That is, the defendant “ ‘is deemed to have acted without
malice and cannot be convicted of murder,’ ” but can be convicted of the lesser-included
offense of voluntary manslaughter. (Id. at p. 1082; see also People v. Randle (2005) 35
Cal.4th 987, 994 [“Imperfect self-defense mitigates, rather than justifies, homicide; it
does so by negating the element of malice.”], overruled on other grounds in People v.
Chun (2009) 45 Cal.4th 1172, 1201; People v. Wilson, supra, 43 Cal.4th at p. 16.)
Neither the self-defense nor imperfect self-defense doctrines may be invoked by a “a
defendant who, through his own wrongful conduct (e.g., the initiation of a physical
assault or the commission of a felony), has created circumstances under which his
adversary’s attack or pursuit is legally justified.” (In re Christian S. (1994) 7 Cal.4th
768, 773, fn. 1.)
       The trial court properly refused both instructions because the evidence was too
insubstantial to support either defense theory. (See People v. Strozier (1993) 20
Cal.App.4th 55, 63.) First, the evidence showed Bernal provoked the confrontation
between his group and the victims. Bernal drove into rival gang territory and yelled
“Where are you from?” to the victims, a known gang confrontation. It is irrelevant that
shell casings of different brands were found near the shooting, because there was no
evidence that the victims fired a gun. To draw an inference that the victims were



                                             21
shooting is pure speculation. (People v. Valdez (2004) 32 Cal.4th 73, 116 [speculation is
insufficient to warrant an instruction; the evidence must be substantial].)
       Second, there was no evidence, direct or circumstantial, that showed that Bernal
“actually . . . believed he was in imminent danger of death or great bodily injury.” (In re
Christian S., supra, 7 Cal.4th at p. 771; see People v. Minifie (1996) 13 Cal.4th 1055,
1065 [defendant claiming self-defense must “ ‘ “prove his own frame of mind” ’ ”].)
According to Cortez, Bernal was calm both before and after the shooting, and was
focused on avoiding capture, directing Cortez to drive to a specific location after the
shooting. There was no evidence that he was shaken by the encounter with the victims.
Therefore, we find that no substantial evidence warranted instructions on self-defense or
imperfect self-defense.
       Bernal also contends the trial court should have given provocation instructions.
Provocation operates in two ways. First, it can reduce first degree murder to second
degree murder if the defendant formed the intent to kill in direct response to provocation
and acted immediately without deliberation or premeditation. Second, it can reduce
murder to manslaughter if the defendant was subjectively provoked to kill, and a person
of average disposition (an “objective” person) would have been provoked to kill.
Provocation to reduce a killing to second degree murder is a purely subjective inquiry
whereas provocation in the context of voluntary manslaughter contains both a subjective
and objective element. (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295-1296.)
       We first examine provocation sufficient to reduce a murder to voluntary
manslaughter. “Where an intentional and unlawful killing occurs ‘upon a sudden quarrel
or heat of passion’ (§ 192, subd. (a)), the malice aforethought required for murder is
negated, and the offense is reduced to voluntary manslaughter -- a lesser included offense
of murder.” (People v. Carasi (2008) 44 Cal.4th 1263, 1306.) Heat of passion will also
reduce attempted murder to attempted voluntary manslaughter. (People v. Williams
(1988) 199 Cal.App.3d 469, 475.) Heat of passion has both objective and subjective
components. (People v. Cole (2004) 33 Cal.4th 1158, 1215.) The defendant must
subjectively act in the heat of passion. (Ibid.) But the claimed provocation must be

                                             22
sufficient to cause a reasonable person under the same circumstances to act rashly,
without deliberation and reflection, from passion rather than from judgment. (Carasi, at
p. 1306.) The provocation must be such that a “reasonable person in defendant’s position
would have reacted with homicidal rage.” (People v. Koontz, supra, 27 Cal.4th at
p. 1086.) A defendant may not “ ‘ “set up his own standard of conduct and justify or
excuse himself because in fact his passions were aroused . . . .” ’ ” (Cole, at p. 1216.)
       Here, there was no evidence of legally sufficient provocation to warrant a
voluntary manslaughter instruction. Notwithstanding the evidence that the victims and
Bernal may have engaged in “where are you from” gang banter, and gang members are
prone to violent overreactions, an ordinary person does not become homicidally enraged
when another person claims an affiliation with a rival “organization.” Requiring the
instruction would effectively adopt a “reasonable gang member” standard, which is
clearly not the law.
       We next examine provocation sufficient to reduce deliberate and premeditated first
degree murder to second degree murder (when the evidence is not sufficient to reduce the
crime to involuntary manslaughter). If the jury finds that the defendant “formed the
intent to kill as a direct response to . . . provocation and . . . acted immediately” without
deliberation or premeditation, the offense is reduced to second degree murder. (People v.
Wickersham (1982) 32 Cal.3d 307, 329 (Wickersham), disapproved on another ground by
People v. Barton (1995) 12 Cal.4th 186, 200-201.) Provocation sufficient to mitigate a
murder to second degree murder requires only a finding that the defendant’s subjective
mental state was such that he did not deliberate and premeditate before deciding to kill.
(People v. Fitzpatrick, supra, 2 Cal.App.4th at pp. 1295-1296.)
       Here, there was overwhelming evidence that Bernal harbored the intent to kill
before any exchange between him and his victims. Although there was some evidence of
an exchange of gang challenges between Bernal and his victims (see Wickersham, supra,
32 Cal.3d at p. 329 [the fact that heated words were exchanged between the victim and
the accused before the fatality may be sufficient to raise a reasonable doubt in the minds
of the jurors regarding whether the accused planned the killing in advance]), there is no

                                              23
evidence that this exchange provoked Bernal to kill Guzman and attempt to kill Emanuel.
(People v. Johnson (1993) 6 Cal.4th 1, 42-43 [provocation instruction only warranted if
defendant formed the intent to kill as a direct response to such provocation and acted
immediately to carry it out].) Bernal went into rival gang territory with a gun, and
initiated a confrontation with supposed rival gang members. It is clear from this evidence
that he had formed his intent to kill before any provocation by his victims.
       Moreover, there is no reasonable probability that Bernal would have received a
more favorable outcome if the instruction had been given. (See Breverman, supra, 19
Cal.4th at p. 165; People v. Watson (1956) 46 Cal.2d 818, 836.) Provocation causes the
defendant to act rashly, impulsively or without careful consideration. The jury here was
instructed with CALCRIM No. 521, which explains the degrees of murder. That
instruction tells the jury that a “decision to kill made rashly, impulsively, or without
careful consideration is not deliberate and premeditated.” Thus, the jury was aware that
if Bernal acted rashly or impulsively, he was guilty of only second degree murder.
Nevertheless, the jury convicted Bernal of first degree murder, showing they did not
believe he acted rashly or impulsively. (People v. Chatman (2006) 38 Cal.4th 344, 392
[error in failing to give lesser included offense instruction is harmless when jury
necessarily decides the factual question posed by the omitted instructions adversely to
defendant under other properly given instructions].)
6. Accomplice Testimony
       Cortez contends the trial court should have instructed the jury, sua sponte, to view
Bernal’s comments to Tejeda with caution, as set forth in CALCRIM No. 334. We need
not address this argument as to Cortez, having already determined that other errors
prejudiced her. Still, Bernal joins in this argument (Cal. Rules of Court, rule
8.200(a)(5)). He did not provide any individualized analysis about how Cortez’s
testimony (or which testimony) tended to incriminate him. Therefore, any claim of error
was waived. (People v. Stanley (1995) 10 Cal.4th 764, 793 [a brief must contain
reasoned argument and legal authority to support its contentions or the court may treat the



                                             24
claim as waived].) In any event, as discussed ante, the case against him was much
stronger than the case against Cortez, and any error was necessarily harmless.
                                    DISPOSITION
      The judgment against Cortez is reversed. The judgment against Bernal is
affirmed.




                                                FLIER, J.
I CONCUR:




      RUBIN, Acting P. J.




                                           25
GRIMES, J., Concurring and dissenting.


       I concur in the affirmance of the judgment of conviction of defendant Rodrigo
Bernal. However, I respectfully disagree with my colleagues’ conclusion that defendant
Norma L. Cortez’s conviction must be reversed.
1.     Prosecutorial Misconduct
       I do not find the prosecutor’s statements during his rebuttal, when viewed in
context, amount to prosecutorial misconduct. After correctly stating “proof beyond a
reasonable doubt is not proof beyond all possible doubt or imaginary doubt,” the
prosecutor exhorted the jury to consider the evidence when he then argued, “I submit to
you what it means is you look at the evidence and you say, ‘I believe I know what
happened, and my belief is not imaginary. It’s based in the evidence in front of me.’ ”
This comment did not lower the burden of proof; it emphasized imaginary doubt is not
reasonable doubt, and such a characterization of the burden of proof is a correct
statement of the law. (See CALCRIM No. 220.)
       I am not persuaded there is a reasonable possibility the jury construed the
prosecutor’s comments to permit conviction despite reasonable doubts. The court
properly instructed the jury on the correct standard of proof. The jury was instructed
that “[p]roof beyond a reasonable doubt is proof that leaves you with an abiding
conviction that the charge is true. The evidence need not eliminate all possible doubt
because everything in life is open to some possible or imaginary doubt.” The jury was
also instructed that “[y]ou must follow the law as I explain it to you . . . . If you believe
that the attorneys’ comments on the law conflict with my instructions, you must follow
my instructions.” We presume the jury followed the court’s instructions absent
evidence to the contrary. (People v. Nguyen (1995) 40 Cal.App.4th 28, 37.)
       The conclusion the trial court “implicitly endorse[d]” the prosecutor’s statement
of the law by overruling defendant’s objection is unwarranted. The prosecutor made the
challenged statement only after defense counsel equated proof beyond a reasonable
doubt with proof sufficient for a mother to convict her own son. Given these conflicting
statements of the standard, the jury likely discounted counsels’ comments as argument,
and followed the trial court’s instructions.
2.     CALCRIM No. 361
       My colleagues conclude Cortez did not fail to explain or deny the evidence
against her. I disagree, finding Cortez failed to explain or deny a considerable body of
evidence against her. Cortez failed to plausibly explain the peculiar circumstance that,
as an innocent church-going woman, she agreed to take a man half her age, whom she
had known only a year, and who she knew associated with the Rockwood gang and
always carried a gun, “for a ride to pick up some money”; then permitted an unfamiliar
teenage friend of his dressed in gang attire to get in the car without anything being said
about why he was there; then, instead of going directly to a location where the money
was to be paid, she took directions from Bernal where to drive without knowing the
destination; and finally, why she drove Bernal and his friend away from the scene of the
shooting and waited for them to stash the gun and come back and get in her car.
       She failed to explain why she did not think it strange that Bernal invited his
teenage friend to get into her car without telling her why he was joining them; why she
permitted him to get in the car; and why, as a mature woman, she took orders from a
young associate of the Rockwood gang. Respondent points out Cortez implausibly
testified Bernal got out of her car two blocks away from the shooting, shot the victim
multiple times, then got back into her car, all without her ever stopping her car; if that
were the case, how was Marvin B. able to note her license plate and identify her in a
lineup as the driver of the car from two blocks away? She also failed to plausibly
explain why she waited for Bernal after the shooting, stating first she was scared, and
then “I don’t think I did anything wrong. I was giving somebody a ride.”
       My colleagues conclude Cortez’s weak and implausible explanations for the
evidence against her do not warrant the instruction, because plausibility “is not the test.”
(Maj. opn. ante, at p. 16.) However, at least two cases have found plausibility is a
proper consideration in giving the instruction. (See People v. Mask (1986) 188
Cal.App.3d 450, 455 [the instruction is warranted “if the defendant tenders an

                                               2
explanation which, while superficially accounting for his activities, nevertheless seems
bizarre or implausible”]; People v. Roehler (1985) 167 Cal.App.3d 353, 392-393.)
Cortez’s credibility was directly at issue, and the instruction correctly informed the jury
that in assessing the reliability of her testimony, they could consider whether it was
significant that she gave vague and implausible answers to obvious questions. (See
CALCRIM No. 361.)
3.     Evidence Code Section 1230
       My colleagues agree that because Bernal’s statements to his nephew were not
testimonial, they did not violate the confrontation clause and were therefore admissible
so long as they fell within an exception to the hearsay rule. (People v. Arceo (2011) 195
Cal.App.4th 556, 571, 573-574.)
       Generally, the hearsay exception for the admission of statements against penal
interest is “inapplicable to evidence of any statement or portion of a statement not itself
specifically disserving to the interests of the declarant.” (People v. Leach (1975) 15
Cal.3d 419, 441; see also People v. Duarte (2000) 24 Cal.4th 603, 612 [“Under the rule
of Leach, a hearsay statement ‘which is in part inculpatory and in part exculpatory (e.g.,
one which admits some complicity but places the major responsibility on others) does
not meet the test of trustworthiness and is thus inadmissible.’ ”].) However, a statement
that inculpates the declarant and other individuals need not be excluded so long as the
statement is not exculpatory, self-serving, or collateral. (People v. Samuels (2005) 36
Cal.4th 96, 120 (Samuels).) In Samuels, the defendant asked James Bernstein to murder
her husband, and once Bernstein had done so, she solicited two other men to murder
Bernstein. At the defendant’s trial, a witness testified Bernstein told him, “ ‘He had
done it and Mike . . . had helped him. And that [the defendant] had paid him.’ ” (Id. at
p. 120, italics added.) On appeal, the defendant contended the italicized portion of these
remarks was an attempt to shift blame to her, and were therefore not statements against
Bernstein’s penal interest. (Ibid.)
       The Supreme Court held the entire statement was properly admitted as a
declaration against penal interest, notwithstanding the reference to the defendant,

                                             3
because the “admission, volunteered to an acquaintance, was specifically disserving to
Bernstein’s interests in that it intimated he had participated in a contract killing—a
particularly heinous type of murder—and in a conspiracy to commit murder. Under the
totality of the circumstances presented here, we do not regard the reference to [the]
defendant incorporated within this admission as itself constituting a collateral assertion
that should have been purged from [the witness’s] recollection of Bernstein’s precise
comments to him. Instead, the reference was inextricably tied to and part of a specific
statement against penal interest.” (Samuels, supra, 36 Cal.4th at p. 121.)
       Here, Bernal’s remarks were made in a private conversation between Bernal and
his younger nephew, Oscar Tejeda, the day after the shooting. Bernal told Tejeda he
“went with some lady to go shoot somebody.” Bernal admitted he did the shooting.
Bernal further told Tejeda “yesterday we went and we shot at two 18s.” Bernal said the
“driver was a girl.” Viewed in context, it is clear Bernal’s statements are in no way
exculpatory, self-serving, or collateral. He admitted he was the one who pulled the
trigger. Like Samuels, to the extent the remarks discuss Cortez’s involvement in the
shooting, these remarks were not collateral, and were in fact quite damaging to Bernal
because they implied he and Cortez together set out to commit a driveby shooting,
which is probative of premeditation and the existence of a conspiracy to commit
murder. (Samuels, supra, 36 Cal.4th at p. 121; see also People v. Cervantes (2004) 118
Cal.App.4th 162, 176-177.)
       Cortez’s reliance on Lawley is misplaced. In that case, the defendant contended
the trial court’s exclusion of evidence of an out-of-court statement was an abuse of
discretion. The trial court admitted, as a declaration against penal interest, the
declarant’s statement that he was hired and paid to kill the victim (implying defendant
did not commit the killing), but did not admit a statement by the declarant that it was the
Aryan Brotherhood that paid him to commit the killing, finding the latter statement was
not against the declarant’s penal interest. The court concluded that “nothing about who
hired Seabourn to kill Stewart made Seabourn more culpable than did the other portions
of his statement. Defendant argues the excluded portion of the statement would have

                                             4
specifically inculpated Seabourn in the additional crime of conspiracy with the Aryan
Brotherhood, but the argument fails to recognize that any murder for hire partakes of the
elements of conspiracy; thus, Seabourn’s naming of the Aryan Brotherhood was not
specifically disserving of his interests.” (People v. Lawley (2002) 27 Cal.4th 102, 154
(Lawley).)
       Lawley addressed a different aspect of the declaration against penal interest
exception to the hearsay rule, finding the trial court had not abused its discretion in
refusing to admit statements that did not further inculpate the declarant. I find the trial
court here did not abuse its discretion in concluding all of Bernal’s statements
inculpated him, because his statements about Cortez implied premeditation and a
conspiracy to commit murder, whereas Bernal’s statements about his conduct alone did
not fully convey the scope of the crime.
       My colleagues find Bernal’s statements were not sufficiently trustworthy to be
admissible against Cortez as a statement against penal interest. As the majority noted,
“[t]here is no litmus test for the determination of whether a statement is trustworthy and
falls within the declaration against interest exception. 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.” (People v.
Greenberger (1997) 58 Cal.App.4th 298, 334.) Although Tejeda provided various
words and phrases to describe what Bernal said to him, and said he could not remember
the precise words Bernal used, the gist of all the statements was Bernal and Cortez went
together into rival gang territory to shoot someone, Bernal did the shooting, and Cortez
did the driving.
       The record does not suggest any motive for Bernal to lie about Cortez’s
participation in the shooting when Bernal confided in a trusted family member.
Moreover, Bernal’s statement “we went” to shoot someone is not untrustworthy
speculation about Cortez’s state of mind. Although his statement supports an inference
as to Cortez’s intent, nothing in this statement purports to explain what she was actually

                                             5
thinking. Rather, he explained what they did, when other evidence in the record amply
supported the inference that Cortez knew of Bernal’s objective before setting out with
him. Accordingly, there is nothing speculative about Bernal’s statement. Therefore, I
find the trial court’s conclusion that the statements were trustworthy was not an abuse of
discretion. (See People v. Brown (2003) 31 Cal.4th 518, 536.)
       The trial court also did not abuse its discretion under Evidence Code section 352
when it admitted the statements. Section 352 vests the court with discretion to exclude
evidence, where the probative value of the evidence is outweighed by the probability
that its admission will necessitate undue consumption of time, pose a substantial danger
of undue prejudice or confusion of the issues, or mislead the jury. A trial court’s ruling
to admit or exclude evidence under section 352 is reviewed for abuse of discretion.
(People v. Olguin (1994) 31 Cal.App.4th 1355, 1373.)
       In this case, the trial court reasonably concluded the evidence was not unduly
prejudicial, and was probative of Cortez’s active participation in the crimes. Although
it was certainly damaging to Cortez, the evidence corroborated other evidence that
already pointed to Cortez’s guilt, such as eyewitness testimony that they saw her driving
and heard her say “Where you guys from?” and “Let them have it.” We should not
interfere with the trial court’s discretion unless it was clearly abused. (People v. Stewart
(1985) 171 Cal.App.3d 59, 65-66.)
       Because the majority found reversible prejudicial error due to prosecutorial
misconduct, instructing the jury with CALCRIM No. 361, and the admission of
Bernal’s statements to his nephew, the majority found it unnecessary to discuss the
other purported errors asserted by Cortez, to which I turn now.
4.     Accomplice Testimony
       Cortez contends the trial court should have instructed the jury, sua sponte, to
view Bernal’s comments to Tejeda with caution, as set forth in CALCRIM No. 334. A
trial court should give CALCRIM No. 334 when an accomplice testifies, and that
testimony tends to incriminate the defendant. (People v. Howard (2008) 42 Cal.4th
1000, 1021-1022; People v. Guiuan (1998) 18 Cal.4th 558, 569.) The instruction

                                             6
informs the jury an accomplice’s testimony must be viewed with caution, and the jury
may not convict a defendant on the accomplice’s testimony alone. Rather, the
accomplice’s testimony must be corroborated by independent supporting evidence.
(See CALCRIM No. 334.)
       An accomplice’s testimony may include “ ‘all oral statements made by an
accomplice or coconspirator under oath in a court proceeding and all out-of-court
statements of accomplices and coconspirators used as substantive evidence of guilt
which are made under suspect circumstances.’ ” (People v. Williams (1997) 16 Cal.4th
153, 245; see also Lawley, supra, 27 Cal.4th at p. 160.) Statements are not “suspect”
when they are trustworthy and reliable, such as when they fall within an exception to the
hearsay rule. (People v. Jeffery (1995) 37 Cal.App.4th 209, 218.)
       As discussed ante, Bernal’s statements to his nephew were not testimonial, and
fell within the hearsay exception for statements against penal interest. Accordingly, I
conclude the trial court had no obligation to give an accomplice testimony instruction.
5.     Ineffective Assistance of Counsel
       Cortez contends she received ineffective assistance of counsel when her attorney
failed to object to the admission of evidence of the meaning of her “three dots” tattoo.
She claims the evidence was inadmissible character evidence of her supposed
propensity to do drugs and live a life of crime. “Under both the Sixth Amendment to
the United States Constitution and article I, section 15 of the California Constitution, a
criminal defendant has a right to the assistance of counsel. [Citations.] This right
‘entitles the defendant not to some bare assistance but rather to effective assistance.’
[Citation.]” (People v. Mitchell (2008) 164 Cal.App.4th 442, 466.) In order to
demonstrate ineffective assistance of counsel, Cortez must show that counsel’s
performance fell below an objective standard of reasonableness, and that she was
prejudiced by counsel’s performance. (Id. at p. 467.)
       At trial, gang expert Antonio Hernandez was questioned about the meaning of
the three dots tattoo. When asked “[w]hat does that [tattoo] mean within [gang]
culture?” he testified that the tattoo signifies the “crazy life,” meaning that its bearer is

                                              7
living a life of drugs, drinking, and crime. He denied the tattoo “necessarily mean[s]
they are a gang member.” However, he testified it is a common tattoo for gang
members and associates. Someone is a gang associate if they hang out with gang
members, but have not been formally admitted into the gang.
       When the prosecutor sought to admit an exhibit displaying Cortez’s tattoos (the
three dots tattoo among others), defense counsel asked for an offer of proof. The
prosecutor responded the tattoos showed Cortez had “a relationship with the gang
culture,” and the evidence was offered in anticipation of her defense that she was
innocently caught up in the shooting and was not a gang member. The prosecutor
sought to introduce evidence that Cortez “is getting tattoos that identify with that
culture.” Defense counsel stated, “I didn’t object to the ‘my crazy life’ triple-dot tattoo
because I know there’s some gang relation, but the other tattoos my client has is
‘Cortez’ on her back with some rose thorns underneath it . . . . The other one is a tribal
band on her wrist. There’s no indication that has anything to do with gang culture.”
       Evidence Code section 1101, subdivision (a) provides that “evidence of a
person’s character or a trait of his or her character . . . is inadmissible when offered to
prove his or her conduct on a specified occasion.” However, section 1101,
subdivision (b) permits admission of such evidence when it is relevant to prove motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or
accident. It is well settled that gang evidence is highly probative of intent and motive.
(People v. Garcia (2008) 168 Cal.App.4th 261, 277.)
       Cortez contends the evidence was not gang evidence, and was merely evidence
of her propensity to live a life of crime and drugs. She has construed Hernandez’s
testimony too narrowly. Hernandez testified that Cortez’s tattoo is common among
gang members and associates. While he also opined Cortez was not a gang member,
his testimony—coupled with the other evidence adduced at trial—clearly demonstrated
that Cortez associated with gang members. This association belies her claimed
“surprise” that Bernal started shooting in rival gang territory, and is therefore probative
of her intent.

                                              8
       Because the evidence was clearly admissible, any objection would have been
meritless, and Cortez cannot demonstrate prejudice. Moreover, she cannot demonstrate
prejudice because there is no reasonable probability Cortez would have gotten a better
result without the tattoo evidence, given the strong evidence of her guilt. (People v.
Walker (2006) 139 Cal.App.4th 782, 808.) Witnesses saw her driving, and heard her
yelling gang challenges. She also knew Bernal always carried a gun.
6.     New Trial Motion
       After the verdicts, Cortez moved for a new trial under Penal Code section 1181,
subdivision 6, reasoning there was insufficient evidence to support the verdict. She also
raised other bases for the motion, which are not at issue on appeal. Specifically, she
contended that the trial court improperly admitted Bernal’s statements to his nephew
(§ 1181, subd. 5), and that her due process rights were violated when the trial court
limited the length of her closing argument. At the hearing on the motion, the trial court
and the attorneys devoted significant time to discussing the admission of Bernal’s out-
of-court statements to his nephew, and discussed the sufficiency of the evidence issue
only in passing. The trial court commented, “I do think there was sufficient evidence
for a jury to make the decision in this case. Unfortunately, for Ms. Cortez, the jurors
chose to believe the people’s witnesses regarding what she did and what she said at the
time of the shooting.” The court denied the motion. Apparently acceding the
sufficiency of the evidence, defense counsel stated, “In regards to the sufficiency of the
evidence, the court was present.” The court responded, “Sure.” This was the extent of
the discussion by counsel and the court.
       Cortez contends the trial court abused its discretion because it applied the wrong
legal standard, and accordingly failed to independently review the evidence. Under
Penal Code section 1181, subdivision 6, a trial court may grant a new trial or modify the
verdict to a lesser included offense when the verdict is “contrary to law or evidence.”
We review the trial court’s denial of a motion for a new trial under the deferential abuse
of discretion standard. An abuse of discretion occurs “if the trial court based its



                                             9
decision on impermissible factors [citation] or on an incorrect legal standard
[citations].” (People v. Knoller (2007) 41 Cal.4th 139, 156.)
       In determining whether to grant a motion for a new trial under Penal Code
section 1181, subdivision 6, the trial court “independently examines all the evidence to
determine whether it is sufficient to prove each required element beyond a reasonable
doubt to the judge, who sits, in effect, as a ‘13th juror.’ ” (Porter v. Superior Court
(2009) 47 Cal.4th 125, 133.) Unlike a ruling on a motion for acquittal under section
1118.1, where the trial court “evaluates the evidence in the light most favorable to the
prosecution,” the court extends “no evidentiary deference in ruling on a section 1181(6)
motion for new trial.” (Porter, supra, at pp. 132-133.)
       Cortez interprets the court’s comments as improper deference to the jury’s
verdict, and an abdication of its duty to independently review the evidence. However
brief the court’s comments were, it is clear the sufficiency of the evidence issue only
merited a brief discussion, given the priority counsel placed on the other issues
presented by the motion (such as Bernal’s out-of-court statements). Cortez has taken
the court’s comments out of the larger context of the issues presented by the motion and
attributed unwarranted meaning to them. Viewed in the proper perspective, it is
obvious the trial court independently evaluated the evidence, and explicitly found the
evidence was sufficient. When defense counsel alluded to the court being “present” for
the trial to evaluate the sufficiency of the evidence, the court appeared to acknowledge
its proper role as the 13th juror. The court’s other comments about the jury are
surplusage, and do not show the court used an incorrect legal standard. “Although it
would have been preferable for the court to have been more specific, stating it was
denying the motion based on its independent weighing of the evidence, its failure to do
so and its use of less than artful language cannot be equated with having applied the
wrong standard.” (People v. Price (1992) 4 Cal.App.4th 1272, 1275 [finding the court
did not apply the wrong legal standard when it stated “ ‘I think the evidence was
sufficient, and I think that the jury—there was enough evidence there for the jury to do
what the jury did . . .’ ”].) Therefore, I find no abuse of discretion.

                                             10
7.     Strength of the Case
       Lastly, I disagree with my colleagues’ view that “[t]he case against Cortez was
close and not particularly strong” (Maj. opn. ante, at p. 20). In her testimony, Cortez
admitted many of the essential facts supporting her conviction (that she was driving
Bernal around, heard gunshots when he got out of the car, permitted him to get back in
the car, and waited in the car when he got out and told her to wait for his return after he
hid the gun used in the shooting). The inconsistent explanations she gave police during
her interview, and the inconsistencies and implausibility of her trial testimony,
impugned her credibility and undermined the persuasive value of her pastor’s testimony
that she attended Bible study and was involved in outreach programs. It was undisputed
that she associated with members of the Rockwood gang (and no one testified her
association was in support of any gang outreach program for her church or otherwise).
According to her ex-husband, Cortez was street smart about gangs and knew what gangs
are all about. As the prosecutor argued in closing, although Cortez was not a typical
gang member, there was no rational explanation for her conduct, other than that she
knew what was going to happen when she drove Bernal into rival gang territory.
       Other evidence supported her intent to aid in a gang murder, such as Bernal’s
statements to his cousin that Bernal and a woman had gone to “shoot somebody,” the
letter Bernal wrote in jail to a friend asking him to find out if Cortez was “against” him
and if so to tell her to “change her story,” Cortez’s willingness to drive Bernal around
into rival gang territory knowing that Bernal always carried a gun, and witness
testimony that Cortez yelled gang challenges and “Let them have it” at the scene of the
shooting.
       Accordingly, I would affirm Cortez’s conviction.


                                       GRIMES, J.




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