Filed 3/9/15
                        CERTIFIED FOR PARTIAL PUBLICATION*




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                              THIRD APPELLATE DISTRICT
                                        (Sacramento)
                                              ----




THE PEOPLE,                                                          C074297

                 Plaintiff and Respondent,                  (Super. Ct. No. 11F02676)

        v.

VINCENT RIVERA et al.,

                 Defendants and Appellants.


     APPEAL from a judgment of the Superior Court of Sacramento County, Allen H.
Sumner, Judge. Affirmed in part and reversed in part.

      Laura Schaefer, under appointment by the Court of Appeal, for Defendant and
Appellant, Vincent Rivera; Jerome P. Wallingford, under appointment by the Court of
Appeal, for Defendant and Appellant, Fred Huante.

       Kamala D. Harris, Attorney General, Michael P. Farrell, Senior Assistant Attorney
General, Carlos A. Martinez and Catherine Tennant Nieto, Deputies Attorney General,
for Plaintiff and Respondent.




* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of parts I, II, III, V, VI, and VII of the Discussion.

                                               1
       This case involves criminal convictions arising from two shootings separated by
less than one month, both that were retaliation for stolen drugs. In the second shooting,
Francisco (Frankie) Flores was killed. A jury found codefendants Vincent Rivera (the
shooter) and Fred Huante guilty of first degree murder for Frankie Flores’s death. The
jury also found defendants guilty of, among other things, the attempted murders of
Michael Flores, Aaron Amaro, and Paul Amaro. Both Rivera and Huante appeal, raising
seven contentions.
       We reverse Huante’s first degree murder conviction pursuant to People v. Chiu
(2014) 59 Cal.4th 155 (Chiu), in which our Supreme Court held “an aider and abettor
may not be convicted of first degree premeditated murder under the natural and probable
consequences doctrine.” (Id. at pp. 158-159.) On remand, the People may either accept
a reduction of Huante’s conviction to second degree murder or retry the first degree
murder charge under a proper theory. (See id. at p. 168.)
       We reject defendants’ other challenges to the judgment. These other challenges
relate to trial counsel’s effectiveness, the trial court’s decisions to excuse a juror and
consolidate the two shootings for trial, alleged instructional error, alleged error in
allowing Huante’s attorney to appear by speakerphone, and cumulative prejudice from
the alleged errors. Defendants join in each other’s arguments to the extent the joinder
benefits them.
                       FACTUAL AND PROCEDURAL HISTORY
                                               A
                            Background For All Charged Crimes
       Rivera and Huante committed the charged crimes as revenge for drugs that were
robbed from Huante. The facts behind that robbery were as follows: In late February or
early March 2011, brothers Michael Flores and Frankie Flores and others were hanging
out in Frankie’s 1996 black Chevy Impala near a park, when Huante came up to Frankie



                                               2
Flores and asked if he wanted to buy cocaine. Huante showed Frankie Flores the
cocaine, and the two exchanged telephone numbers.
       Later, Frankie Flores told Michael Flores they were going to rob Huante of some
drugs. They took their mother’s Trailblazer because Huante had seen Frankie’s black
Chevy Impala. Michael Flores drove Frankie Flores and some others in the Trailblazer
toward the park. Frankie Flores telephoned Huante, who then showed up with a half
ounce of cocaine. Frankie Flores took the cocaine, pointed a gun at Huante, and then
Michael Flores drove them away fast. As they fled, Michael Flores heard five gunshots
behind them.
                                             B
           The Attempted Murders Of The Amaro Brothers On March 27, 2011
       On March 27, 2011, Paul Amaro was driving his 1996 black Chevy Impala with
his brother Aaron Amaro in the front seat, when Paul heard a “loud noise.” Paul Amaro
saw a man, whom he later identified as Huante in a photographic lineup, shooting at him
and his brother. From a separate lineup, Paul Amaro identified Rivera as the driver of the
car Huante was in. He did not know either Huante or Rivera. Paul Amaro had met
Frankie Flores at a family party once and realized that they drove identical cars. Aaron
Amaro was shot in the leg, had to have surgery, and was on crutches for two to three
months.
                                             C
                      The Murder Of Frankie Flores And Attempted
                      Murder Of Michael Flores On April 14, 2011
       On April 14, 2011, Frankie Flores drove himself and his brother Michael Flores in
his black Impala to a strip mall. When they got to the strip mall, they stayed talking
inside the car. A truck pulled up alongside them, and the driver (whom Michael Flores
identified as Rivera) pulled out a gun. Michael Flores told his brother, “ ‘That dude’s got
a gun. Start the car. Let’s leave.’ ” Frankie Flores started up the Impala. Rivera hopped

                                             3
out of the truck, went up to the Impala’s driver’s side window, and asked if the driver
was “ ‘Frankie.’ ” Frankie said, “ ‘No. You got the wrong person.’ ” Rivera called to
his passenger in the truck (whom Michael Flores identified as Huante) and asked, “ ‘Is
that him?’ ” Huante got out of the truck and ran around to the back of the truck. Frankie
Flores put his Impala in reverse, and as he did, Rivera started shooting. Michael Flores
got shot twice, through the mouth and in the forearm. Frankie Flores got shot six times,
including fatal shots to his lung and heart. Frankie Flores died within minutes of being
shot. According to Michael Flores, he or his brother did not have a weapon on them or
near them at the time of the fatal shooting.
       Valentino Hernandez and his mother, Toni Hernandez, saw the shooting while in
their car at the strip mall’s parking lot. Toni Hernandez heard Rivera say to Huante,
“ ‘Come here. Look at what this mother-fucker has on his lap.’ ” Later, Valentino
Hernandez was talking with his mother and, according to Toni Hernandez, Valentino
said, “ ‘[one of the Flores brother’s] had a gun on his lap.’ ”1 They drove out of the
parking lot fast after the shooting started.
       A ballistics expert determined that the expended bullets from the March 27
shooting and the April 14 shooting were discharged from the same firearm.
                                        DISCUSSION
                                               I
                      Rivera Received Effective Assistance Of Counsel
       Rivera contends his counsel was ineffective for failing to introduce evidence
corroborating his self-defense claim. Specifically, he contends counsel should have
asked Valentino Hernandez whether he saw or knew that one of the Flores brothers had a



1        The court instructed the jury to consider this statement for Valentino Hernandez’s
and Toni Hernandez’s states of mind and not for the truth of the matter. Rivera testified
at trial that passenger Michael Flores had what looked like a gun in his hand.

                                               4
gun in his lap. Defendant’s reasoning is as follows: if his trial counsel had asked
Valentino Hernandez whether he saw a gun on the lap of one of the Flores brothers and if
Valentino had answered “yes,” such evidence would have tended to corroborated
Rivera’s testimony that Michael Flores pulled out a gun. If Valentino denied seeing a
gun, defense counsel could have impeached Valentino with his statement to his mother
that one of the Flores brothers “had a gun on his lap.” We disagree, because counsel had
a tactical reason for proceeding the way he did. (See People v. Frierson (1979) 25 Cal.3d
142, 158 [a reasonable tactical decision does not constitute ineffective assistance of
counsel].)
       The evidence on the gun was as follows: It was undisputed at trial that Valentino
Hernandez and his mother were in their car during the entire incident. Thus, it was
reasonable inference that neither one of them could have seen anything on the laps of the
Flores brothers. Moreover, Rivera’s defense counsel was aware of the statement
Valentino made to his mother, Toni (that “ ‘he has a gun on his lap’ ”) and counsel
elicited this evidence during his cross-examination of Toni Hernandez. This trial tactic
allowed counsel to put the statement before the jury without the possibility that Valentino
might have testified in court that he did not see a gun on the lap of anyone in the Flores
car. Given the state of the evidence, counsel was not ineffective for proceeding as he did.
                                             II
                   The Trial Court Did Not Err In Excusing Juror No. 8
       Rivera and Huante contend the trial court erred in violation of their constitutional
rights when it dismissed Juror No. 8 because the record did not establish good cause to
excuse the juror, rather than have her continue to deliberate for a day or two more. The
court excused Juror No. 8 after she told the court that her employer would not pay her
anymore for jury service, which would cause her family financial hardship. The court
found “a demonstrable reality that her ability to deliberate fairly [wa]s substantially
impaired.”

                                              5
       “ ‘We review for abuse of discretion the trial court’s determination to discharge a
juror and order an alternate to serve. [Citation.] If there is any substantial evidence
supporting the trial court’s ruling, we will uphold it. [Citation.] . . . [H]owever, . . . a
juror’s inability to perform as a juror “ ‘must appear in the record as a demonstrable
reality.’ ” ’ ” (People v. Cleveland (2001) 25 Cal.4th 466, 474.) As we explain, there
was no abuse of discretion here. Juror No. 8’s inability to perform as a juror was based
on substantial evidence in the form of her note to the court, her answers to the court’s
questions, and the juror’s body language demonstrating anxiety at having to serve further.
       On the 15th day of trial, the jury retired to deliberate. On the 16th day, Juror No. 8
sent a note to the court stating as follows: “I will not be paid starting tomorrow from
work + it will cause a hardship at home financially.” Orally, the juror told the court, “we
cannot pay the house payment and all of our bills” without both her income and her
husband’s income. The court then asked Juror No. 8, “If you were serving on the jury
after tomorrow, and you’re not getting paid by your employer, would it affect your ability
to carry out your duties as a juror?” Juror No. 8 responded, “Yes,” “[b]ecause I would be
constantly thinking about not being able to pay our bills.” The court then asked Juror No.
8 to wait outside and described her demeanor as “very tense, nervous, and tightening up
as she was explaining her position.”
       This evidence of financial hardship, which caused the juror mental and physical
anxiety and detracted from her ability to focus on the case, was substantial evidence to
support the trial court’s determination that Juror No. 8 was unable to perform as a juror.
Thus, the trial court did not abuse its discretion in excusing her. Because there was no
abuse of discretion, the juror’s discharge did not violate defendants’ constitutional rights.
(People v. Lomax (2010) 49 Cal.4th 530, 591-592.)




                                                6
                                               III
         The Trial Court Did Not Err In Consolidating The Frankie Flores Murder
                  Case With The Attempted Murder Of The Amaro Brothers
         Defendants contend the trial court violated their constitutional rights by
consolidating the Amaro shooting with the Flores murder. The trial court granted the
People’s motion to consolidate because the attempted murder of Amaro brothers and
murder of Frankie Flores were the same class of crimes separated by only three weeks
and involved the same motive.
         Huante’s contention on appeal reiterates the arguments of his trial counsel and
Rivera’s trial counsel as to why the cases should not have been consolidated. These
arguments included that there was no duplication of witnesses, the two cases would
improperly bolster each other, and they were not really of the same class of crimes.
         Rivera’s contention focuses on his view that his guilt in the Amaro shooting was
“very weak,” while his guilt of the Flores shooting was “comparatively stronger,” so
there was “a danger that the aggregate evidence on the charges altered the outcome of the
case.”
         As we explain below, the court did not err in consolidating the two cases for trial.
         Penal Code section 954 provides that “[a]n accusatory pleading may charge two or
more different offenses connected together in their commission, or different statements of
the same offense or two or more different offenses of the same class of crimes or
offenses, under separate counts, and if two or more accusatory pleadings are filed in such
cases in the same court, the court may order them to be consolidated.” Consolidation of
charges is favored. (People v. Smith (2007) 40 Cal.4th 483, 510.)
         “[M]urder and attempted murder are of the same class of crimes within the
meaning of section 954. [Citation.] The statutory requirements for joinder thus being
satisfied, defendant ‘ “ ‘can predicate error in denying the motion only on a clear
showing of potential prejudice. [Citation.] We review the trial court’s ruling on the

                                               7
severance motion for abuse of discretion.” ’ ” (People v. Jones (2013) 57 Cal.4th 899,
924.) “ ‘In determining whether a trial court abused its discretion under section 954 in
declining to sever properly joined charges, “we consider the record before the trial court
when it made its ruling.” ’ [Citations.] We consider first whether the evidence of the two
sets of offenses would have been cross-admissible if the offenses had been separately
tried. [Citation.] If the evidence would have been cross-admissible, then joinder of the
charges was not prejudicial.” (People v. Thomas (2012) 53 Cal.4th 771, 798.)
       The evidence was cross-admissible. The attempted murder of the Amaro brothers
and the Frankie Flores murder were based on the same motive -- revenge for a drug
robbery. At the time the trial court was considering the consolidation motion, the state of
the evidence as established during two preliminary hearings was as follows: the victims
in the Frankie Flores murder case had “ripped off drugs . . . from one of the defendants.”
Then, “defendants wanted to retaliate. And after that they began looking for the victim.”
“They saw a vehicle that matched the victim’s vehicle and opened up fire on the victim.”
That victim, one of the Amaro brothers, identified defendants as the shooters. That was
the attempted murder case. Two weeks after these attempted murders, defendants see
Frankie Flores in the parking lot “driving the exact same car that the attempt[ed] murder
victim[s] [i.e., the Amaro brothers] w[ere] driving.” Defendants “get into a confrontation
at that parking lot, begin yelling that they want their money back. They want their drugs
back. And then they end up opening fire on the victims inside that vehicle, which is the
murder case. And they end up killing one of the individuals in there.” “[T]hose bullets
end up being matched up to the attempt[ed] murder just a few weeks before.”
       Given that the crimes were of the same class and the evidence was cross-
admissible, defendants have failed to make a “ ‘ “clear showing of prejudice.” ’ ”
(People v. Thomas, supra, 53 Cal.4th at p. 798.) There was no abuse of discretion.




                                             8
                                              IV
                          Huante’s First Degree Murder Conviction
                          Must Be Reversed For Instructional Error
         Huante contends his conviction for the first degree murder of Frankie Flores must
be reversed because the instructions impermissibly allowed the jury to find him guilty of
first degree murder if it found the target crime of the uncharged conspiracy was
discharging a firearm at an occupied vehicle and that first degree murder was a natural
and probable consequence of that target crime. The impermissibility stems from Chiu, in
which our Supreme Court held that the most a defendant can be found guilty of in a
similar situation (aiding and abetting instructions that allowed a first degree premeditated
murder conviction on a natural and probable consequences doctrine) was second degree
murder. (Chiu, supra, 59 Cal.4th at pp. 158-159, 168.) The People do not argue the
instructions were correct; rather, they argue the error was harmless beyond a reasonable
doubt.
         As we explain, there was error under Chiu and it was prejudicial.
                                              A
     The People’s Theory Of Murder As It Applied To Huante And The Instructions
         The instructions told the jury that Huante was charged with Frankie Flores’s first
degree murder and Michael Flores’s first degree attempted murder based on two




                                              9
alternative theories: (1) Huante was guilty of those crimes as an aider and abettor2; or (2)
Huante was guilty of those crimes as a member of an uncharged conspiracy.3
       As to the uncharged conspiracy theory of first degree murder and attempted
murder, the jury was instructed in pertinent part as follows:
       “A member of a conspiracy is . . . criminally responsible for any act of any
member of the conspiracy if that act is done to further the conspiracy and that act is the
natural and probable consequence of the common plan or design of the conspiracy. This
rule applies even if the act was not intended as part of the original plan.” [¶] A natural
and probable consequence is one that a reasonable person would know is likely to happen
if nothing unusual intervenes.”
       “To prove that the defendant is guilty of the crimes charged in Count One [murder
of Frankie Flores] and/or Count Two [attempted murder of Michael Flores], the People
must prove that:
       “One, the defendant conspired to commit one of the following crimes: murder,
attempted murder, robbery, and/or discharge of a firearm at an occupied vehicle;
       “Two, a member of the conspiracy committed murder as charged in Count One
and/or attempted murder as charged in Count Two to further the conspiracy; and
       “Three, murder as charged in Count One, and/or attempted murder as charged in
Count Two, were a natural and probable consequence of the common plan or design of
the crime that the defendant conspired to commit.”



2      There was no error in the aider and abettor instructions because, unlike in Chiu,
here the aider and abettor instructions did not refer to the natural and probable
consequences theory of liability. The only instructions that did were the conspiracy
instructions.
3      The prosecutor in closing also argued these two theories as to Huante, noting
“there’s multiple ways to allow liability in this case -- conspiracy, aiding and abetting.”
(6RT 1487:17-19)

                                             10
                                                B
                               The Error In These Instructions
       Under these instructions, it was possible for the jury to have found Huante guilty
of first degree murder if it found the target crime of the uncharged conspiracy was
discharging a firearm at an occupied vehicle and that first degree murder was a natural
and probable consequence of that target crime.
       The error in finding first degree murder under this theory is based on the
California Supreme Court’s reasoning in Chiu, supra, 59 Cal.4th 155, holding a
defendant who is an aider and abettor cannot be convicted of first degree murder under a
natural and probable consequences theory. (Id. at pp. 158-159.) The court found that due
to the vicarious nature of liability under the natural and probable consequences theory (id.
at p. 164), “the connection between the defendant’s culpability and the perpetrator’s
premeditative state is too attenuated to impose aider and abettor liability for first degree
murder under the natural and probable consequences doctrine, especially in light of the
severe penalty involved . . .” (id. at p. 166). 4
       The error here is similar. As we just explained, the error in Chiu was imposing
aider and abettor liability for first degree murder under the natural and probable
consequences doctrine. The error here is imposing uncharged conspiracy liability for
first degree murder also under the natural and probable consequences doctrine. In these
contexts, the operation of the natural and probable consequences doctrines is analogous.
This analogy appeared in Chiu itself, when the court was cataloguing examples of the
natural and probable consequences as follows: “The natural and probable consequences



4      The rationale here applies only to the target offense of discharging a firearm at an
occupied vehicle. This is so because if the jury found that the target offense was either
murder or attempted murder, that would mean that the conspirators planned to commit
murder, amounting to first degree premeditated murder. If the jury found that the target
offense was robbery, the murder would be first degree under the felony murder rule.

                                               11
doctrine was recognized at common law and is firmly entrenched in California law as a
theory of criminal liability. ([People v. ]Prettyman [1996] 14 Cal.4th [248, ] at pp. 260-
261; People v. Durham (1969) 70 Cal.2d 171, 181-185 & fn. 11; . . . cf. People v.
Kauffman (1907) 152 Cal. 331, 334 . . . [conspiracy liability] . . . .” (Chiu, supra, 59
Cal.4th at p. 163.) Thus, when the California Supreme Court in Chiu was explaining the
natural and probable consequences doctrine, it understood its applicability to both aiding
and abetting and conspiracy theories. 5
       Under both these theories, the extension of liability to additional, reasonably
foreseeable offenses rests on the “policy [that] conspirators and aiders and abettors
should be responsible for the criminal harms they have naturally, probably and
foreseeably put in motion.” (People v. Luparello, supra, 187 Cal.App.3d at p. 439.) The
problem with extending a defendant’s liability for a first degree premeditated murder to
an aider and abettor (and we hold also a co-conspirator) under the natural and probable
consequences doctrine was explained in Chiu in pertinent part as follows:
       “First degree murder, like second degree murder, is the unlawful killing of a
human being with malice aforethought, but has the additional elements of willfulness,
premeditation, and deliberation which trigger a heightened penalty. [Citation.] That
mental state is uniquely subjective and personal. It requires more than a showing of
intent to kill; the killer must act deliberately, carefully weighing the considerations for
and against a choice to kill before he or she completes the acts that caused the death.
[Citations.] Additionally, whether a direct perpetrator commits a nontarget offense of
murder with or without premeditation and deliberation has no effect on the resultant



5      The difference in the two theories of liability is that “the conspirator need only
intend to agree or conspire and to commit the offense which is the object of the
conspiracy [citation]; while the aider and abettor must intend to commit the offense or to
encourage or facilitate its commission.” (People v. Luparello (1986) 187 Cal.App.3d
410, 439; see also People v. Smith (2014) 60 Cal.4th 603, 616-617.)

                                              12
harm. The victim has been killed regardless of the perpetrator’s premeditative mental
state. Although we have stated that an aider and abettor’s ‘punishment need not be finely
calibrated to the criminal’s mens rea’ [citation], the connection between the defendant’s
culpability and the perpetrator’s premeditative state is too attenuated to impose aider and
abettor liability for first degree murder under the natural and probable consequences
doctrine, especially in light of the severe penalty involved and the above stated public
policy concern of deterrence.” (Chiu, supra, 59 Cal.4th at p. 166.)
       Given these reasons articulated by the California Supreme Court for limiting aider
and abettor liability under the natural and probable consequences doctrine to second
degree murder and the analogy between aiding and abetting and conspiracy that we have
explained, we hold that the trial court here erred in instructing the jury it could reach a
verdict of first degree murder for Huante if it found that the target crime of the uncharged
conspiracy was discharging a firearm at an occupied vehicle and that first degree murder
was a natural and probable consequence of that target crime.
                                              C
The Instructional Error Was Prejudicial; The Remedy Is To Reduce Huante’s Conviction
       To Second Degree Murder Or Remand For Retrial On First Degree Murder
       “When a trial court instructs a jury on two theories of guilt, one of which was
legally correct and one legally incorrect, reversal is required unless there is a basis in the
record to find that the verdict was based on a valid ground. [Citations.] Defendant’s first
degree murder conviction must be reversed unless we conclude beyond a reasonable
doubt that the jury based its verdict on the legally valid theory . . . . [Citation.] We
cannot so conclude.” (Chiu, supra, 59 Cal. 4th at p. 167.)
       The record shows that the jury may have based its verdict of first degree
premeditated murder for Huante on the natural and probable consequences theory.
During deliberations, the jury sent the trial court a note asking, “If Vincent Rivera is
found guilty of the murder of Frankie Flores, and if Fred Huante is found to be a[n]

                                              13
aider/abettor and/or co-conspirator in the murder of Frankie Flores, is Fred Huante guilty
of the same level of murder (1st degree, 2nd degree) as Vincent Rivera?” The court
referred the jury back to the instructions it had given previously on these areas, including
the erroneous instructions we have discussed above.
       The People argue the error was harmless because “[b]y returning a guilty verdict
on the attempted murder count [count two], the jury found that Huante intended to kill
Michael Flores, and he also possessed the require mens rea for first degree murder. Once
the jury found the necessary intent to commit murder, along with premeditation and
deliberation, the . . . instructional error was harmless . . . .”
       The People’s argument is refuted by the following instruction (CALCRIM No.
601 as modified) regarding deliberation and premeditation as it applied to Huante: “As to
defendant Fred Huante, the attempted murder was done willfully and with deliberation
and premeditation if either the defendant Fred Huante or defendant Vincent Rivera or
both of them acted with that state of mind.” (Italics added.) Thus, the jury’s guilty
verdict on the first degree attempted murder of Michael Flores (count two) as to Huante
may have meant nothing more than the jury found Rivera acted with deliberation and
premeditation, and that Rivera’s deliberation and premeditation was imputed to Huante
pursuant to this instruction. It did not mean, as the People claim, the jury necessarily
found that Huante personally premeditated a killing on April 14.6
       And, nothing about the guilty verdict in count two, on which the People place all
their reliance, indicates the jury used the correct aiding and abetting theory rather than the
flawed conspiracy theory, to find Huante guilty of the first degree premeditated murder of




6      There was no other pertinent instructions that applied to Huante for the finding of
requisite intent to kill for count one (the murder of Frankie Flores) and two (the
attempted murder of Michael Flores) that took place on April 14, 2011, other than this
one and the erroneous conspiracy instruction we have already discussed.

                                                14
Frankie Flores in count one. The verdict in count two could have been based on a jury
finding that Huante was a coconspirator in the shooting into an occupied motor vehicle
and that attempted murder was a natural and probable consequence of that target crime.
If the jury so found, and then found that Rivera acted willfully and with deliberation and
premeditation in perpetrating the attempted murder in count two (pursuant to CALCRIM
No. 601 as quoted above), the same instruction required the jury to apply that finding of
premeditation to Huante as well.
       We turn then to the remedy. Because “the court’s instructional error affected only
the degree of the crime of which [defendant] was convicted,” we “ ‘may reduce the
conviction to [the] lesser degree [of the offense] and affirm the judgment as modified,
thereby obviating the necessity for a retrial,’ ” but at the same time we must “ ‘give the
prosecutor the option of retrying the greater offense, or accepting [the] reduction to the
lesser offense.’ ” (People v. Woods (1992) 8 Cal.App.4th 1570, 1596; see also People v.
Hart (2009) 176 Cal.App.4th 662, 674-675.) Accordingly, that is what we will do.
                                              V
          The California Supreme Court Has Upheld The Practice Of Allowing
            An Uncharged Conspiracy To Be The Basis For Criminal Liability
       Huante contends the trial court erred in instructing the jury that it could use a
theory of uncharged conspiracy to find him guilty of murder in count one and attempted
murder in count two because uncharged conspiracy is not a valid theory of criminal
liability under California law.
       The California Supreme Court has rejected this argument: “Our decisions have
‘long and firmly established that an uncharged conspiracy may properly be used to prove
criminal liability for acts of a coconspirator. [Citations.] “Failure to charge conspiracy
as a separate offense does not preclude the People from proving that those substantive
offenses which are charged were committed in furtherance of a criminal conspiracy
[citation]; nor, it follows, does it preclude the giving of jury instructions based on a

                                              15
conspiracy theory [citations].” [Citation.]’ ” (People v. Valdez (2012) 55 Cal.4th 82,
150.) As Huante recognizes, we are bound by the decisions of the California Supreme
Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
                                             VI
        Huante Has Forfeited His Claim That He Was Deprived Of His Right To
         Counsel By The Representation Of His Trial Counsel Via Speakerphone
           From Deliberations Onward; The Alleged Error Was Not Structural
       Huante contends that the trial court violated his federal and state constitutional
rights to counsel when the court allowed his trial counsel, Joel Deckler, to appear by
speakerphone from deliberations onward. Huante’s contention focuses specifically on
one part of the speakerphone representation: the hearing regarding whether the court
should excuse Juror No. 8. Huante claims for the first time on appeal that “the
speakerphone setup was inadequate” because “[i]t did not permit Deckler to hear answers
given by the witness,” “Deckler was unable to hear comments made by counsel for co-
appellant Rivera,” and “[Deckler] could not personally participate in a sidebar
conference, but was forced to rely on [co-counsel] Mr. Whisenand.” Huante asserts, “the
defective speaker-phone system created a situation that amounted to an outright denial of
counsel at the hearing.”
                                             A
            Factual Background Regarding The Speakerphone Representation
       After discussing jury instructions, trial counsel Deckler told the court the
following: “Mr. Huante is aware that I am retiring at the end of this trial. I will be
available by way of phone for any jury questions and any input that I can have with the
Court and co-counsel [Alan Whisenand]. [¶] [Kyle] Knapp [counsel for Rivera] has
graciously consented to stand in at anytime when the jury will be present in the room.”
Trial counsel Deckler added that if the jury found Huante guilty, the court could either
relieve Deckler and appoint another attorney or, alternatively, Deckler could remain as

                                             16
counsel and appear telephonically with a second attorney meeting with Huante to discuss
the probation report and appear in the courtroom at judgment and sentencing. Trial
counsel Deckler asked Huante if either option would be satisfactory, and Huante
responded, “Yeah.”
       Later, during deliberations, trial counsel Deckler appeared telephonically with
cocounsel Whisenand appearing in person during the hearing on whether Juror No. 8
should be excused. Trial counsel Deckler stated he preferred to use a landline, rather
than a speakerphone, to talk with cocounsel Whisenand, and that Whisenand could
convey Deckler’s thoughts to Huante. Huante responded, “Yes,” when asked if he
consented to this procedure.
       When the court questioned Juror No. 8, trial counsel Deckler told the court he
could not hear much of what the juror had said. The court then repeated what Juror No. 8
had said. Juror No. 8 then continued responding to questions and, whenever trial counsel
Deckler could not hear what she had said, he so noted and the court repeated her answers.
At one point, just after a sidebar conference, cocounsel Whisenand told trial counsel
Deckler, “I believe I represented your position accurately at sidebar when we
approached.” Trial counsel Deckler responded, “I’m sure you did since we previously
discussed this whole issue.”
                                              B
           Huante Forfeited His Claim By Failing To Object In the Trial Court
       Huante explicitly agreed to the speakerphone representation, and during the
hearing regarding Juror No. 8, neither Huante nor his attorneys (Deckler or Whisenand)
objected that the speakerphone setup was inadequate. By failing to assert in the trial
court that the speakerphone setup deprived of him of his right to counsel, Huante has
forfeited this contention on appeal. (See People v. Garceau (1993) 6 Cal.4th 140, 179
[failure to object in the trial court “waives” claim on appeal; In re Sheena K. (2007) 40
Cal.4th 875, 880, fn. 1 [accurate term is forfeiture instead of waiver].)

                                             17
                                             C
                              The Error Was Not Structural
       To the extent defendant contends no objection was needed and that the error was
structural (obviating the need for a harmless error analysis) because this was an “outright
denial of counsel at the hearing,” we disagree. The United States Supreme Court has
stated, “Our precedents do not clearly hold that counsel’s participation by speakerphone
should be treated as a ‘complete denial of counsel,’ on par with total absence. Even if we
agree with [the defendant] that a lawyer physically present will tend to perform better
than one on the phone, it does not necessarily follow that mere telephone contact
amounted to total absence or ‘prevented [counsel] from assisting the accused’ . . . . The
question is not whether counsel in those circumstances will perform less well than he
otherwise would, but whether the circumstances are likely to result in such poor
performance that an inquiry into its effects would not be worth the time.” (Wright v. Van
Patten (2008) 552 U.S. 120, 125 [169 L.Ed.2d 583, 588].)
       The circumstances here did not approach that level. The court repeated for trial
counsel Deckler anything Deckler could not hear. The court also described the juror’s
demeanor for Deckler, and cocounsel Whisenand concurred in the court’s description.
Deckler was able to privately talk with cocounsel Whisenand during the hearing
regarding excusing Juror No. 8 via a telephonic landline and then have the substance of
those talks conveyed to Huante through Whisenand. Finally, cocounsel Whisenand was
able to convey trial counsel Deckler’s position at sidebar.
       Contrary to Huante’s argument, the record shows that Deckler was able to
participate in the proceedings via speakerphone despite any technical difficulties with
that speakerphone, and Huante was not deprived of the total assistance of counsel.
       We note one final point. While the alleged error here was not structural and does
not warrant reversal, we caution against the practice of telephonic participation by
counsel in a case such as this. This case involved two defendants, serious charges, highly

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technical legal issues, and, by the time counsel retired, a client who had been found guilty
of murder. Deckler, literally, did not stand by his client during important proceedings,
leading to these appellate arguments by his client regarding the alleged deficiencies that
befell him as a result. These arguments all could have been avoided had the trial court
not permitted the practice here, i.e. allowing one’s attorney to retire before the trial and
sentencing were complete.
                                             VII
                      There Were No Multiple Errors To Accumulate
       Huante contends the cumulative effect of the alleged errors here denied him a fair
trial. We have found only one error (regarding the court’s instructions on conspirator
liability for first degree murder under the natural and probable consequences doctrine as
it pertained to Huante), so there are no multiple errors to accumulate.
                                       DISPOSITION
       The judgment is affirmed as to Rivera.
       Huante’s conviction of first degree murder is reversed unless the People accept a
reduction of the conviction to second degree murder. If, after the filing of the remittitur
in the trial court, the People do not bring Huante to retrial on the premeditation and
deliberation element within the time set forth in Penal Code section 1382, subdivision
(a)(2) -- 60 days unless waived by the defendant-- the trial court shall proceed as if the
remittitur constituted a modification of the judgment to reflect a conviction of second
degree murder and shall resentence Huante accordingly.

                                                         ROBIE                  , Acting P. J.
We concur:


      DUARTE                 , J.


      HOCH                   , J.


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