People v. Hernandez

Full title: THE PEOPLE, Plaintiff and Respondent, v. JUAN CERMENO HERNANDEZ et al.…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

Date published: Nov 4, 2011

B224527 (Cal. Ct. App. Nov. 4, 2011)

Opinion

B224527

11-04-2011

THE PEOPLE, Plaintiff and Respondent, v. JUAN CERMENO HERNANDEZ et al., Defendants and Appellants.

Jonathan P. Milberg, under appointment by the Court of Appeal, for Defendant and Appellant Juan Cermeno Hernandez. Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant Matthew Herrera. Stephen Temko, under appointment by the Court of Appeal, for Defendant and Appellant Michael Kane. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

ARMSTRONG

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. LA062376)

APPEAL from a judgment of the Superior Court of Los Angeles County. Joseph A. Brandolino, Judge. Modified in part; affirmed in part; remanded.

Jonathan P. Milberg, under appointment by the Court of Appeal, for Defendant and Appellant Juan Cermeno Hernandez.

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

Stephen Temko, under appointment by the Court of Appeal, for Defendant and Appellant Michael Kane.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

Appellants Michael Kane, Matthew Herrera and Juan Hernandez were convicted, following a jury trial, of two counts of extortion in violation of Penal Code section 520. Kane and Herrera were also convicted of one count of first degree murder in violation of section 187, subdivision (a). The jury found not true the allegation that Herrera personally used and discharged a firearm in the commission of the murder within the meaning of section 12022.53, subdivision (d).

The trial court found true the allegations that Kane had suffered a prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a)(1) and the "Three Strikes" law (sections 667, subdivisions (b) through (i) and 1170.12). The court also found true the allegation that Hernandez had suffered a prior felony conviction within the meaning of the Three Strikes law. The court further found true the allegations that Kane and Herrera had served a prior prison term within the meaning of section 667.5, subdivision (b).

The trial court sentenced Kane to a term of 65 years to life in state prison, Herrera to a term of 30 years to life in state prison and Hernandez to a term of 10 years in state prison.

Appellants appeal from the judgment of conviction.

Facts

On Monday, June 15, 2009, Jamie Rainer contacted appellant Kane on behalf of her housemate, Esteban Arraya, who wished to purchase marijuana. Kane was suspicious of Arraya, but agreed to help after Rainer said that she trusted Arraya. Ultimately, Diane Vigil, another of Rainer's housemates, drove Arraya to a Jack in the Box and met up with Abraham Nunez, as arranged by Kane. They were accompanied by Kane's housemate Sandy Motta. Nunez provided Arraya with marijuana and was almost immediately arrested by police. Vigil and Arraya were also arrested. Motta had stepped out of the car during the transaction and was not arrested.

Kane blamed Arraya, Rainer, Vigil and Motta for Nunez's arrest. Kane gathered some friends, including appellants Herrera and Hernandez and codefendant Paul Marino. The men hit and threatened Rainer and Vigil to get them to provide bail money for Nunez. Motta was also expected to provide bail money. The women did provide some money the next day, and Arraya provided a car stereo in lieu of money.

On June 18, 2009, Kane and Herrera went to a house on Kelvin Avenue which was occupied by Arraya, Vigil, Rainer and others. They shot and killed Antonio Araiza, in the mistaken belief that he was Arraya. They took a laptop belonging to another resident of the house, Angelina Frias.

A. Details of the extortions

After Motta was questioned and released by the police, she was given Vigil's car keys and Vigil's car was left in her care. Rainer called Vigil's cell phone, which apparently was still in Vigil's car, and the phone was answered by Motta. Motta told Rainer that Vigil, Arraya, and Nunez had been arrested.

While Motta was dealing with Vigil's car, Rainer told Kane what had happened. Kane wanted to know why Vigil, Nunez, and Arraya had been arrested. He said he was going to call a "homeboy" to come over and help.

At some point, Kane went into his bedroom. He later came out and asked Rainer to join him in the bedroom. Herrera was also in the bedroom, along with Tammy Oltman, Marino, Sara Jackson, and Hernandez. There was evidence from the manager of Hernandez's sober living house that Hernandez used a wheelchair. According to Rainer, Hernandez was not in a wheelchair.

Herrera kept asking Rainer whether Arraya was a "rat." Herrera told Rainer to remove her clothes so that he could see if she was wearing a wire or any other device that indicated she was working for the police. Rainer complied.

After Rainer redressed, Herrera told her to sit, and Rainer complied by sitting on a couch. Herrera asked Rainer to hand her purse to him, and Rainer complied. Herrera dumped the purse's contents onto his lap and rummaged through them. Marino took Rainer's identification and told her it would be returned if "everything check[ed] out fine."

Herrera and Marino continued to ask Rainer if Arraya was a "rat" or an informant. Rainer said that she had not known Arraya for "very long," but believed he was a "good person." She did not believe that he was an informant.

Herrera told Rainer that if she did not give him the answers that he wanted, he would discover where she lived and that "CPA would be after" her. As far as she knew, CPA referred to a gang.

Marino continued to ask Rainer about Arraya and said that he did not believe her. Marino asked Kane if he had a shovel, and Kane retrieved a shovel for him. Marino sat in a chair with the shovel and told Rainer that if she did not give him the answer that he wanted to hear, she would dig her own grave and he would kill her. At some point, Marino and Herrera told Rainer that because Nunez had gone to jail, she needed to provide bail money.

Vigil and Arraya were eventually released from the police station at approximately 8:30 p.m. Nunez, however, remained in custody.

After Vigil was released, she walked to a nearby supermarket and used a pay phone to call her sister, Sara Jackson, to ask for a ride. Jackson and Oltman came to pick up Vigil and drove her back to the house on Cohasset.

Vigil, Oltman, and Jackson entered the Cohasset house. Vigil checked on her children in the living room and then went into Kane's bedroom at his request. Rainer, Marino, Herrera and Hernandez were in the bedroom. According to Vigil, Hernandez was not in a wheelchair and appeared to have no problems standing or walking. Herrera asked her what had happened to his "homeboy," Nunez. Vigil explained that the police had surrounded the car, and that they had been arrested. Herrera did not appear to be happy.

At some point, Motta eventually returned to the Cohasset house. Kane asked her to join him in his bedroom, and she complied. There, Herrera blamed Rainer and the other women for Nunez's arrest because he thought Arraya was a snitch. Herrera stated that he "wanted his homeboy to be bailed out" and wanted to know how much money Rainer and Motta could provide. Kane said, "Yeah, yeah." Rainer offered $200 while Motta offered $75 or $100.

At some point, Herrera slapped Rainer and Motta, hit and kicked Rainer in the head, and threatened to kill Rainer. Hernandez also "smacked" Rainer in the face or head. At some point, Kane, Herrera, or Marino threw Rainer's telephone across the room.

Herrera grabbed Rainer's dog and threw him against the wall. When Rainer began to scream hysterically, Herrera agreed to stop because people would hear her.

Vigil and Motta left in Vigil's car to try to get more money. Vigil and Motta returned a short time later to get Rainer and her dog. Vigil told Kane that she would take her children, Rainer, and Motta and that they would all go and get more money. Kane indicated that he "was fine with that."

Motta obtained $75. Rainer attempted to get money from her mother, but did not succeed.

At some point, Kane called either Rainer's or Motta's cell phone and asked her to meet at a Unocal gas station. Motta gave Vigil $75, and Vigil drove to a Unocal station to meet Herrera and Kane. Vigil handed Herrera the money, while Kane went into a nearby store. Vigil told Herrera that she would give him the rest of the money in the morning. He replied, "Okay. Thank you."

Vigil and Motta went to obtain more money. Vigil borrowed $50 from a friend. Rainer used an ATM to retrieve $60. Arraya gave Vigil a stereo in place of money.

Vigil and Motta called Kane and told him that they had more money. They arranged to meet.

Someone named Kevin showed up for the meeting and Vigil gave him the money and the stereo. Kevin called Kane and Herrera, then handed the phone to Motta and Vigil. Vigil asked Herrera if the stereo was "okay in lieu of the money." Herrera seemed pleased with the stereo and said that "it was squashed." Vigil understood Herrera to mean that she and Motta had done their "part and it was squashed and it was done." Oltman drove Kevin back to her residence, and Kevin gave the money to Herrera. Kane was also there when they arrived.

B. Details of the murder

On June 17, 2009, Oltman and her friend, Angie, returned home from a shopping trip and saw Marino, Jackson, and Hernandez entering the residence. Herrera was already inside the residence. Hernandez and Herrera, Angie, and Marino went into Oltman's bedroom and closed the door. Angie exited the room a few minutes later. After a few more minutes, everyone else left the residence except Herrera, who subsequently left in Oltman's car. Oltman asked Herrera to return her car in an hour. The car was not there when she woke up the next morning, June 18. Herrera and Kane returned with the car about 7:30 a.m.

On June 18, the house on Kelvin Avenue where Vigil, Rainer and Arraya lived was also occupied by Angelina Frias, her husband Keiffe Ollivierre, their two children, Norine Reed and her husband, and Antonio Araiza. The Frias-Ollivierre family lived in the garage, but used the kitchen in the main house. Reed and her husband also lived in the garage, while Araiza lived in the main house.

About 6:00 a.m., the Frias-Ollivierre family was in the kitchen. Frias looked out the kitchen window and noticed two men, later identified as Herrera and Kane, walking towards the house. Ollivierre also saw the two men, who were wearing jerseys with the number 13 on them. One of the men, Herrera, lifted up his shirt and Frias saw what appeared to be a gun. Frias told Ollivierre about what she had seen. Ollivierre locked the front door.

The man who appeared to have a gun took out a cell phone and placed it to his ear. The two men then turned towards the converted garage. Frias went to Araiza's room and told him what she had seen.

Shortly thereafter, somebody knocked on the front door. Araiza went to the door and opened it. The two men poked their heads into the house and appellant Herrera looked at Ollivierre and said, "Esteban?" Ollivierre put his hands in the air and said, "No, not Esteban. I'm not Hispanic."

One or both of the men looked at Araiza and asked him in Spanish to step outside to talk. Araiza walked outside with the two men who sandwiched Araiza between them as they walked away.

A minute or two later, Frias and Ollivierre heard a gunshot. Frias placed her children in Araiza's bedroom and called 911.

Ollivierre saw the shorter individual running away from the house. At one point, the person stopped to pick up a computer power cord. The person appeared to also have a laptop in his hands.

Reed, who was in her bedroom in the garage, looked out the window and saw two men running across the lawn. One of the men was Herrera. The other man, who appeared to be "a little shorter," was carrying "ear buds" or "little headphones," in one hand and a silver gun in the other hand. Reed threw her telephone at her husband and told him to call 911.

Reed ran into the other room in the garage and saw Araiza, who was barely breathing, on the floor. Ollivierre heard one of the tenants at the house yelling, "Tony's been shot. Tony's been shot." Ollivierre ran to his room and saw Reed holding Araiza near the bed.

In response to the 911 call, Los Angeles Police Officer Orlando Moreno arrived at the house on Kelvin. Moreno entered the house and went to the converted garage, where he observed Araiza lying on the ground next to a bed, blood on the ground, and an expended .380 casing.

Araiza died from a gunshot wound to the torso. The bullet entered near the left nipple and pierced the heart and liver.

The residents of the house were ordered outside of the residence and were told to stand in front of the garage. Rainer and Motta told police what had happened previously at the house on Cohasset.

Moreno broadcast a description of the suspects as being two male Hispanics who were approximately 20 to 25 years old. He further broadcast that one of the suspects had the number 13 tattooed on his head.

When Frias went inside the converted garage later in the day, she noticed that her laptop was missing and that other items in the room had been moved. The blood on the floor was at the foot of the bed and was extremely close to where Frias had left her computer.

At some point, Frias was shown a photographic lineup and identified Kane as being the Hispanic male she had seen who accompanied the man with the gun. On a different day, Frias was shown a second photographic lineup and identified Herrera as resembling the person with the gun.

Ollivierre was also shown a photographic lineup and circled one photograph because it appeared to be someone he had seen on an unrelated occasion and another photograph because it appeared to be the person who asked if he was Esteban. Ollivierre was shown a second photographic lineup but did not recognize anyone depicted.

At some point Rainer was shown a series of photographic lineups and identified Kane as being one of the people at the Cohasset house on June 15, 2009. She also identified Marino as the person who threw her telephone, Herrera as the one who kicked her, and Hernandez as the person who hit her.

On June 20 or June 21, 2009, Los Angeles Police Officer Brandon Kiefer arrested appellant Kane. At the time of arrest, Kane had tattoos on his head; a tattoo above his left ear stated, "Fuck a bitch" while a tattoo above the right ear said, "Trust no bitch." Kane's booking photograph stated that he was five feet, nine inches tall.

On June 21, 2009, Los Angeles Police Officer Matthew Clymer arrested Herrera in the bathroom of a residence. Herrera's booking information stated that he was six feet, two inches tall. He had a tattoo on the side of his face that read "Southland." Herrera had a large butterfly tattoo that was visible on the right side of his head, a teardrop tattoo was visible next to Herrera's eye, a tattoo on his left neck, and a tattoo on the left side of his head.

Kane, Herrera and Hernandez presented no evidence on their own behalf.

Marino offered the testimony of Sara Jackson, his fiancé and the mother of his child. On June 15, 2009, the day the drug deal went bad, Jackson arrived home about 3:10 p.m., and Marino arrived home about five minutes later. He was with Hernandez, who had gone with Marino to the bank and then to Denny's. Hernandez was in a wheelchair. Jackson and Marino went with Hernandez, his wife, Cecilia, and their daughter to look at an apartment in Sunland and then went to eat at McDonald's. Another friend, Camille Aikens, also joined them.

About 7:00 to 7:30 p.m., Jackson and Marino left the McDonald's and went home. Aikens drove Hernandez, Cecilia, and their daughter home and then rejoined Jackson and Marino at approximately 8:30 p.m.

At some point, Motta called and said that Vigil had been arrested; Motta mentioned that she had Vigil's car and did not want to be responsible for it. Marino, Jackson, and Aikens drove in one car to the area where Motta said she had the car.

While Marino worked on Vigil's car, which was having trouble starting, Jackson drove her car to the house on Cohasset to check on Vigil's children, who were playing in the backyard. She then returned to Vigil's car and drove Marino and Aikens back to their apartment in Tarzana.

Approximately 20 minutes later, Jackson received a telephone call from Vigil saying she had been released. Jackson dropped off Marino and Aikens at Vigil's car to work on it more, and then went with Tammy Oltman, in Oltman's car, to pick up Vigil. After getting Vigil, they drove to the house on Cohasset so that Vigil could retrieve her children. Oltman and Vigil went inside the house and then returned approximately five minutes later with the children.

Oltman, Jackson, Vigil, and the others drove back to where Vigil's car was located. By that point, Marino and Aikens had been able to get Vigil's car running, and Vigil got into the vehicle with her children and drove away. Jackson and Marino returned home with Aikens, who spent the night.

Jackson never entered Kane's bedroom on June 15, 2009. She never saw Oltman in Kane's bedroom.

Kane and Marino were acquaintances, but were not close friends. Marino did not have any relationship with Herrera.

To Jackson's knowledge, Marino had never been to the house on Cohasset Street on June 15, 2009.

Discussion

1. First degree murder - sufficiency of the evidence

Kane and Herrera contend that there is insufficient evidence to support their murder convictions.

"In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence - evidence that is reasonable, credible and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review applies to cases in which the prosecution relies primarily on circumstantial evidence and to special circumstance allegations. [Citation.] [I]f the circumstances reasonably justify the jury's findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] We do not reweigh evidence or reevaluate a witness's credibility. [Citations.]" (People v. Nelson (2011) 51 Cal.4th 198, 210, internal quotation marks omitted.)

a. Intent to kill - Kane

Kane contends that there is no evidence that he had the specific intent to kill Arraya, either as the perpetrator or by aiding and abetting Herrera. Herrera similarly contends that there is no evidence that he had the specific intent to kill Arraya, either as the perpetrator or by aiding and abetting Kane.

There is sufficient evidence to support an inference that Kane and Herrera both went to the Kelvin Avenue house with the intent to kill and to work together to accomplish that goal.

Both men were angry that Nunez had been arrested and believed that Arraya had informed on Nunez to the police. They thus had a motive to kill Arraya. The two men arrived at the house together. Herrera was armed, indicating that a deadly confrontation was contemplated. (See People v. Adcox (1988) 47 Cal.3d 207, 240.) Kane was seen with the gun after the shooting. The two men together walked around to the back of the house, and both appeared to be looking around for someone or something. They both put their heads in the main house. Herrera asked, "Esteban?" The two men then took up positions on either side of Araiza and walked him around to the back of the house, away from his housemates. (See People v. Thompson (2010) 49 Cal.4th 79, 118 [evidence sufficient to support conclusion that defendant and his companion were coperpetrators where they "jointly maneuvered" the victim to "an isolated spot" and robbed and killed him and the defendant assisted by providing the gun].) There, Araiza was killed by a single gunshot wound to the chest, which supports an inference of an intent to kill. (See People v. Smith (2005) 37 Cal.4th 733, 741 [firing at close range supports inference of intent to kill]; People v. Chinchilla (1997) 52 Cal.App.4th 683, 690 [same].) The two did not separate after the killing, which would be expected if one was startled by unexpected shooting by the other. Rather, they fled together. (See People v. Miranda (2011) 192 Cal.App.4th 398, 407 [companionship and conduct before and after the offense are relevant to determining whether a defendant aided and abetted a crime].)

Kane contends that the evidence showed that he was not violent during the earlier extortion of Rainer and Vigil, and that the evidence at most showed that he went to the Kelvin Avenue house to get bail money from Arraya. The fact that Kane was apparently not violent during the extortion of Rainer and Vigil says nothing about his intent two days later in seeking out Arraya. Kane may well have harbored less animosity toward Rainer and Vigil than toward Arraya, since he apparently believed that Arraya was the actual informer. Kane's anger might have increased as time passed and Nunez remained in jail. As we discuss, ante, Kane's actions at the Kelvin Avenue house almost exactly mirrored Herrera's, and there is no reason to believe that the two men had different intents.

Herrera contends that the evidence that he possessed the gun before the shooting was weak and there was no evidence that he fired the gun but there was evidence that Kane had the gun after the shooting. He concludes that there is at most a 50-50 chance that he was the shooter, and that this is not sufficient to convict him as the perpetrator. He further contends that there is no evidence that he intended to aid and abet Kane in killing Araiza because there was no evidence that he knew Araiza or had any reason to kill him.

Implicit in Herrera's argument is that he knew that Araiza was not Arraya. There is no such evidence. To the contrary, Herrera's act of asking "Esteban?" while looking at Araiza suggests that Herrera believed that Araiza was Arraya. Herrera clearly had a reason to kill Arraya, who was suspected of being a police informant.

Frias did testify that Herrera had what appeared to be a gun in his waistband, and that testimony is some evidence that he did have a gun before the shooting. However, the precise identity of the person who brought the gun to the house is not critical. As we have just discussed, Herrera and Kane clearly acted in concert.

Herrera's reliance on People v. Blakeslee (1969) 2 Cal.App.3d 831 and People v. Solloway (1950) 98 Cal.App.2d 350 to show insufficient evidence is misplaced. In Blakeslee, the appellate court found insufficient evidence to sustain the defendant's murder conviction because no witness saw the shooting, placed the defendant at the murder scene at the time of the murder, or saw the defendant with a weapon. Further, there was no evidence of any bad feelings between the victim and the defendant at the time of the murder. (People v. Blakeslee, supra, 2 Cal.App.3d at pp. 837-840.) In Solloway, the appellate court found insufficient evident to support the defendant's murder conviction because there was no ill will between the defendant and the victim, and two doctors testified that the defendant could not have lifted and dragged the victim's body from the basement where the murder occurred to the area where the body was found. (People v. Solloway, supra, 98 Cal.App.2d at pp. 355-356.)

Here, witnesses did see Kane and Herrera at the murder scene at the time of the murder, with a weapon, and Kane and Herrera were angry at Arraya. Thus, Blakeslee and Solloway have no application to this case.

Herrera's reliance on People v. Allen (1985) 165 Cal.App.3d 616 and People v. Smith (2005) 135 Cal.App.4th 914 is also misplaced. While the appellate courts in those cases found that there was insufficient evidence to show that the appellant was the actual shooter, the murder convictions were upheld.

To the extent that Herrera contends that a jury must have evidence of which defendant was the actual killer in a murder case, he is mistaken. "[T]he jury need not decide unanimously whether a defendant was a direct perpetrator or an aider and abettor, so long as it is unanimous that he was one or the other." (People v. Wilson (2008) 44 Cal.4th 758, 801.) This is so because "[i]t is often an oversimplification to describe one person as the actual perpetrator and the other as the aider and abettor. When two or more persons commit a crime together, both may act in part as the actual perpetrator and in part as the aider and abettor of the other." (People v. McCoy (2001) 25 Cal.4th 1111, 1120.) Indeed, the aider and abettor doctrine "obviates the necessity to decide who was the aider and abettor and who the direct perpetrator or to what extent each played which role." (Ibid.)

b. Premeditation and deliberation - Kane

Kane contends that even if there is sufficient evidence of an intent to kill, there is not sufficient evidence of premeditation and deliberation. We do not agree.

"'An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse."' (People v. Jennings (2010) 50 Cal.4th 616, 645; see People v. Solomon (2010) 49 Cal.4th 792, 812.) A killing is premeditated if it was '""considered beforehand,'"" and is deliberate if it was formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.'"" (People v. Jennings, supra, 50 Cal.4th at p. 645; see People v. Harris (2008) 43 Cal.4th 1269, 1286.)

'"The process of premeditation and deliberation does not require any extended period of time.'" (People v. Harris, supra, 43 Cal.4th at p. 1286; see People v. Solomon, supra, 49 Cal.4th at p. 812.) '""The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . .'"" (People v. Harris, supra, 43 Cal.4th at pp. 1286-1287.)

Courts generally consider three categories of evidence in assessing whether there is adequate evidence of premeditation and deliberation: (1) motive; (2) planning activity; and (3) manner of killing. No particular combination of these factors is required. (People v. Jennings, supra, 50 Cal.4th at p. 645.) The factors '""are not a sine qua non to finding first degree premeditated murder, nor are they exclusive.'"" (People v. Hovarter (2008) 44 Cal.4th 983, 1019.)

Here, Kane and Herrera had a motive to kill Araiza because they believed that Arraya had informed the police about the drug transaction. They mistakenly believed that Araiza was Arraya.

At least one of the men came to Arraya's house armed, which shows planning. (See, e.g., People v. Romero (2008) 44 Cal.4th 386, 401 [act of bringing a gun showed planning]; People v. Steele (2002) 27 Cal.4th 1230, 1250 [jury could reasonably infer that defendant considered the possibility of homicide in advance because he carried a weapon to victim's house]; People v. Koontz (2002) 27 Cal.4th 1041, 1082 [defendant's act of arming himself showed evidence of planning].) Kane and Herrera asked Araiza to step outside to an area where he was away from any possible assistance from his housemates, which also shows planning. (See People v. Hovarter, supra, 44 Cal.4th at p. 1019 ["Defendant's choice . . . of committing his crimes in isolated or secluded settings further suggests a premeditated plan"].)

The manner of the killing also indicated premeditation and deliberation since Araiza was killed by a single gunshot wound to the chest that pierced his heart. (See, e.g., People v. Thompson, supra, 49 Cal.4th at pp. 114-115 ["a close-range shooting without any provocation or evidence of a struggle, reasonably supports an inference of premeditation and deliberation"]; People v. Harris, supra, 43 Cal.4th at p. 1287 [fact that defendant stabbed victim in the heart supported jury's reasonable finding that the defendant was guilty of first degree murder]; People v. Koontz, supra, 27 Cal.4th at p. 1082 ["firing a shot at a vital area of the body at close range" showed deliberate intent to kill].)

Kane contends that Herrera may have premeditated and deliberated, but there is nothing to show that he did, or that he shared Herrera's intent. As we discuss, ante, Kane and Herrera acted in concert, which indicates that they shared the same intent. "It would be virtually impossible for a person to know of another's intent to murder and decide to aid in accomplishing the crime without at least a brief period of deliberation and premeditation, which is all that is required." (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1166.)

c. Felony murder

Herrera contends that there is insufficient evidence that he committed a robbery or burglary and so insufficient evidence to support a conviction under the felony murder doctrine. Kane joins in Herrera's argument. We do not agree.

Herrera contends that witnesses saw Kane carrying the laptop and there was no evidence that Herrera personally took any property and so no evidence to show he committed a robbery or burglary.

As we discuss, ante, there is ample evidence that the two men were acting in concert. There is compelling evidence that the laptop was stolen. Even assuming that the evidence suggests that Kane was the actual robber, the evidence also indicates that Herrera aided and abetted Kane's actions. (See People v. Mitchell (1986) 183 Cal.App.3d 325, 330 ["Virtually all of the probative factors relative to aiding and abetting are present - presence at the scene of the crime, companionship and conduct before and after the offense, including flight."]; People v. Dominguez (1992) 11 Cal.App.4th 1342, 1352 [evidence that one defendant was present when the other entered with a gun and that they drove away together with the victim's property supported conviction for robbery as an aider and abettor].) Contrary to Herrera's claim, there was no need for the jury to decide which man was the actual robber and which the aider and abettor.

Herrera also contends that if he or Kane had wanted to steal the laptop, they could simply have taken it and other valuables without interacting with anyone because the laptop was in an unoccupied unsecured room in the garage. He implies that this shows that any intent to rob was formed after the killing.

As we discuss, ante, there was evidence that Kane and Herrera believed that Arraya was an informant, were angry at him and wanted bail money for Nunez. There was also evidence that they mistakenly believed Araiza was Arraya. Thus, it was reasonable for a jury to infer that Kane and Herrera came to the house to take money or valuables from Arraya for Nunez's bail money, and thus came to the house with the intent to steal. There could be a number of reasons that they did not immediately execute this plan including the possibility that they wanted to see if Arraya had additional items of value.

Circumstantial evidence may provide sufficient support for a felony murder conviction. (People v. Elliot (2005) 36 Cal.4th 446, 469.) For example, evidence that a defendant stole the victim's belongings within a short time after entering the building supported the inference that the defendant committed a burglary and robbery and that the victim was killed during the course of those crimes. (People v. Foster (2010) 50 Cal.4th 1301, 1348-1349.)

Herrera contends that other scenarios are possible under the evidence. "The fact that the evidence may also support other scenarios does not render insufficient the evidence supporting the verdict." (People v. Foster, supra, 50 Cal.4th at p. 1349.)

Further, if Kane and Herrera did not form the intent to steal until after killing Araiza, the only reasonable inference is that they went to the house with the intent to kill Araiza. "In short, the evidence was consistent with a theory of premeditated and deliberate first degree murder, with a theory of first degree felony murder, or with a theory of both, but not with a theory of neither." (People v. Sakarias (2000) 22 Cal.4th 596, 627.)

2. Robbery

The laptop which was stolen belonged to Frias. Kane and Herrera contend that there is insufficient evidence to show that Araiza had a possessory interest in the laptop, and so insufficient evidence to show robbery. Absent evidence of a robbery, the felony murder doctrine would not apply.

"A person from whose immediate presence property was taken by force or fear is not a robbery victim unless, additionally, he or she was in some sense in possession of the property." (People v. Scott (2009) 45 Cal.4th 743, 749.) California law "limits victims of robbery to those persons in either actual or constructive possession of the property taken." (People v. Nguyen (2000) 24 Cal.4th 756, 764.) For constructive possession, "it is enough that the person presently has some loose custody over the property, is currently exercising dominion over it, or at least may be said to represent or stand in the shoes of the true owner." (People v. Hamilton (1995) 40 Cal.App.4th 1137, 1143.) Constructive possession has been found where the robbery victim has "'a special relationship' with the owner of the property such that the victim had authority or responsibility to protect the stolen property on behalf of the owner." (People v. Scott, supra, 45 Cal.4th at p. 750.)

Here, there is evidence of such a special relationship. When Frias first saw Kane and Herrera, she told Araiza. At that point, Kane and Herrera were headed toward the garage, where Frias lived. When Kane and Herrera returned to the house and knocked on the door, it was Araiza who answered, not Frias or Ollivierre. These actions suggest that Frias looked to Araiza for protection and that he assumed that role. Further, the evidence suggests that Araiza was standing next to the computer and power cord, since the blood on the floor was extremely close to where Frias had left those items. (See People v. Hamilton, supra, 40 Cal.App.4th at pp. 1143-1144 [a passenger in a car "who is the sole occupant during the owner/driver's absence would be held to have a sufficient possessory interest to be the victim of a robbery"].)

In addition, we note that Kane and Herrera went to the back house first, apparently expecting Arraya to be there. When no one was there, they went to the front house, got Araiza and took him to the back house. It is reasonable to infer that appellants believed that Araiza (who they thought was Arraya) lived in the back house and that the computer was his.

3. CALCRIM No. 400 - aiding and abetting instruction

Kane contends the trial court erred in instructing the jury with CALCRIM No. 400 concerning aider and abettor liability and that the error violated his federal constitutional rights and requires reversal of the first degree murder count.

Appellant did not object to the instruction in the trial court and so has forfeited this claim. Assuming for the sake of argument that the claim was not forfeited, we would see no reversible error.

An aider and abettor's mental state may be the same as the direct perpetrator, or it may be more culpable or less culpable. (People v. McCoy (2001) 25 Cal.4th 1111, 1122 [greater]; People v. Nero (2010) 181 Cal.App.4th 504, 518 [lesser].) Thus, depending on his personal mental state, an aider and abettor may be guilty of the same crime as the direct perpetrator, or of a greater or lesser crime.

CALCRIM No. 400 as given, provided: "A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it." (Italics added.)

Kane contends that the phrase "equally guilty" allowed the jury to convict him without finding that he had the specific intent to commit the crime, and that this violated his federal constitutional right to a jury trial and amounted to structural error.

An instruction cannot be read in isolation. "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." (People v. Wilson (1992) 3 Cal.4th 926, 943, internal quotation marks omitted.) Jurors are presumed to be "able to understand and correlate instructions." (People v. Williams (1995) 40 Cal.App.4th 446, 456.)

Here, CALCRIM No. 400 was immediately followed by CALCRIM No. 401, which told the jury that in order to convict a defendant under an aiding and abetting theory, the jury must find that the defendant "knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aide, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime." Thus, the jury was adequately instructed that it had to find that appellant had the specific intent required for the crime.

Kane also contends that CALCRIM No. 400 prevented the jury from convicting him, an aider and abettor, of a lesser offense than the actual shooter, Herrera. We will assume for the sake of argument that the instruction has the potential of causing a jury to believe that it cannot convict an aider and abettor of a lesser offense than the perpetrator.

Kane contends that he might have had a different mental state than Herrera because two days earlier he had not been violent toward Motta and Rainer and because on the day of the shooting he was not armed and took a subservient role to Herrera.

Kane's lack of violence when questioning Motta and Rainer says nothing about his state of mind toward Araiza two days later. The evidence of Kane's activities on the morning of the shooting shows Kane as an equal participant in the killing. He and Herrera appeared to work in concert in their activities at the Kelvin Avenue house. There is nothing in the evidence to suggest that Kane in fact had a different mental state in the killing of Araiza than Herrera did. Thus, we see no reasonable possibility that Kane would have received a more favorable verdict if the phrase "equally guilty" had been omitted from the instruction on aiding and abetting liability.

4. Robbery instruction

Kane contends that the trial court erred in instructing the jury with CALCRIM No. 1603 concerning robbery. We see no prejudice to Kane.

CALCRIM No. 1603, as given, provided in pertinent part: "To be guilty of robbery as an aider and abettor, the defendant must have formed the intent to aid and abet the commission of the robbery before or while a perpetrator carried away the property to a place of temporary safety." The bench notes to the instruction state: "Do not give this instruction if the defendant is charged with felony murder."

Kane contends that CALCRIM No. 1603 permitted the jury to find him guilty of felony murder even if he did not form the intent to commit robbery until after the killing occurred. Specifically, Kane contends "the jury likely found that appellant committed a robbery when he took the laptop computer, but it also may have found he took it only after Herrera had shot and killed Araiza."

Nothing in CALCRIM No. 1603 discusses the timing of robbery as it relates to murder in a felony murder situation. Nevertheless, the drafters of the CALCRIM instructions saw at least the potential for confusion when this instruction is given in a felony murder case. We see no reason to believe that such confusion occurred under the facts of this case.

The jury was instructed that "[s]ome of these instructions may not apply." If the jury found that Kane took the laptop, that would make Kane a perpetrator of the robbery, not an aider and abettor. The jury would have no reason to consider CALCRIM No. 1603, which discusses aiding and abetting robbery. In addition, CALCRIM No. 1603 refers to aiding and abetting "a perpetrator [who] carried away the property." This phrase too, would have indicated to the jury that the instruction was not applicable, since Kane was the one who carried away the property.

Further, CALCRIM No. 1603 cannot be considered in isolation. (People v. Wilson, supra, 3 Cal.4th at p. 943.) The court also instructed the jury with CALCRIM Nos. 540A and 540B, which specifically discuss the timing requirements for felony murder. CALCRIM No. 540B, which defines liability for coparticipants in felony murder, clearly states: "The defendant must have intended to commit, or aid and abet, the felonies of robbery or burglary before or at the time of the act causing the death."¹

1 CALCRIM No. 540A defines liability for a defendant who allegedly committed the fatal act in a felony murder. It told the jury that the "defendant must have intended to commit the felonies of robbery or burglary before or at the time of the act causing the death."

Jurors are presumed to be "able to understand and correlate instructions." (People v. Williams, supra, 40 Cal.App.4th at p. 456.) Under the facts of this case, there is no reason to believe that the jury would ignore the specific directions of CALCRIM No. 540B concerning felony murder and rely instead on a general instruction on aiding and abetting robbery.

Further, the evidence shows Kane and Herrera acting in concert. There is nothing in the evidence to suggest that the men had differing intents during the commission of the crimes, much less that Kane had no criminal intent until after Herrera killed Araiza. It would be reasonable to infer that the two men came to the house with the intent to rob Arraya, or to kill him, or both. There is no basis to infer some other intent.

Kane's reliance on People v. Carnine (1953) 41 Cal.2d 384 and People v. Esquivel (1994) 28 Cal.App.4th 1386 is misplaced. Carnine involved a murder in the victim's store, and theft from that store. The court instructed the jury that if the defendant did not form the intent to commit burglary before he struck the victim, the victim was not killed in the perpetration of a burglary. The court did not give a similar instruction on robbery. The California Supreme Court found that the combination of an instruction about the timing of burglary and the absence of an instruction about the timing of robbery might have confused the jury about the timing requirement for the robbery intent. (Id. at p. 389.) No such juxtaposition existed here. Rather, CALCRIM Nos. 540A and 540B discussed the timing requirements for both burglary and robbery.

In Esquivel, the instructions did not emphasize the timing requirements for robbery and the prosecutor argued that the defendant was guilty of felony-murder even if he did not join the plan to rob until after the killing. (Id. at pp. 1394-1400.) Here, the prosecutor made no such argument, and CALCRIM Nos. 540A and 540B were clear about the timing requirements of felony murder.

5. Burglary instruction

Kane contends that the trial court erred in instructing the jury with CALCRIM No. 1702 concerning burglary. We see no prejudice to Kane.

CALCRIM No. 1702 provides: "To be guilty of burglary as an aider and abettor, the defendant must have known of the perpetrator's unlawful purpose and must have formed the intent to aid, facilitate, promote, instigate, or encourage commission of the burglary before the perpetrator finally left the structure." The bench notes to the instruction state: "Do not give this instruction if the defendant is charged with felony murder."

Kane contends that CALCRIM No. 1702 permitted the jury to find him guilty of felony murder even if he did not form the intent to commit burglary until after the killing occurred.

Nothing in CALCRIM No. 1702 discusses the timing of burglary as it relates to murder in a felony murder situation. Nevertheless, the drafters of the CALCRIM instructions saw at least the potential for confusion when this instruction is given in a felony murder case. We see no reason to believe that such confusion occurred under the facts of this case.

The jury was instructed that "[s]ome of these instructions may not apply." If the jury found that Kane entered the garage after the murder with the intent to take the laptop, that would make Kane a perpetrator of the burglary, not an aider and abettor. The jury would have no reason to consider CALCRIM No. 1702, which discusses aiding and abetting "the commission of the burglary before the perpetrator finally left the structure."

Further, CALCRIM No. 1702 cannot be considered in isolation. (People v. Wilson, supra, 3 Cal.4th at p. 943.) As we discuss, ante, the court also instructed the jury with CALCRIM Nos. 540A and 540B, which specifically discuss the timing requirements for felony murder. CALCRIM No. 540B, which defines liability for coparticipants in felony murder, clearly states: "The defendant must have intended to commit, or aid and abet, the felonies of robbery or burglary before or at the time of the act causing the death."²

2 CALCRIM No. 540A defines liability for a defendant who allegedly committed the fatal act in a felony murder. It told the jury that the "defendant must have intended to commit the felonies of robbery or burglary before or at the time of the act causing the death."

Jurors are presumed to be "able to understand and correlate instructions." (People v. Williams, supra, 40 Cal.App.4th at p. 456.) Under the facts of this case, there is no reason to believe that the jury would ignore the specific directions of CALCRIM No. 540B concerning felony murder and rely instead on a general instruction on burglary.

Further, as we discuss, ante, the evidence shows Kane and Herrera acting in concert. There is nothing in the evidence to suggest that the men had differing intents during the commission of the crimes.

6. Felony murder instructions

Kane contends that the trial court had a sua sponte duty to instruct the jury that felony murder only applied when the felony occurred during the killing.

A trial court has a sua sponte duty to instruct on the general principles of law applicable to the case. (People v. Young (2005) 34 Cal.4th 1149, 1200.)

The trial court fully and accurately instructed the jury on felony murder with CALCRIM Nos. 540A and 540B. Those instructions told the jury that a requirement of felony murder was that "[w]hile committing or attempting to commit robbery or burglary, the perpetrator did an act that caused the death of another person. [¶] AND [¶] 5. There was a logical connection between the act causing the death and the robbery and burglary, or attempted robbery or burglary. The connection between the fatal act and the robbery or burglary, or attempted robbery or burglary, must involve more than just their occurrence at the same time and place." As we discuss, ante, those instructions made it clear that a defendant "must have intended to commit, or aid and abet, the felonies of robbery or burglary before or at the time of the act causing the death."

Kane does not explain how CALCRIM Nos. 540A and 540B are inadequate to explain the timing requirements of felony murder.³ Accordingly his claim fails.

3 To the extent that Kane may be understood as arguing on appeal that the trial court should have given a clarifying instruction on felony murder timing, he has forfeited this claim by failing to request a clarifying instruction in the trial court. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1192.)

7. Transferred intent

Kane contends that the doctrine of transferred intent does not apply when a defendant shoots someone based on mistaken identity. He contends that it applies only when a defendant shoots at the intended victim but hits and kills someone else instead. He concludes that it was error to instruct the jury with CALCRIM No. 562, entitled "Transferred Intent" and that this error was prejudicial. He has forfeited this claim by failing to object in the trial court.

Assuming for the sake of argument that the claim were not forfeited, we would see no prejudicial error.

It is technically correct that "the 'mistaken identity' situation is not a case of transferred intent, because the target at which the defendant actually aimed is the victim." (People v. Williams (1980) 102 Cal.App.3d 1018, 1027, fn. 5.) Both transferred intent and mistaken identity are situations where a defendant can be held liable for harm to an unintended victim, however. (Ibid.)The Court in Williams found that the standard jury instruction on "transferred intent" applied to the "mistaken identity" situation because it contained broad language. (Id. at p. 1027.) That instruction, as given in Williams, provided: "'Where one intends to [unlawfully] assault a certain person with a deadly weapon, but by mistake or inadvertence assaults a different person with such weapon, the crime, if any, so committed is the same as though the person originally intended to be assaulted had been assaulted.'" (Id. at p. 1026.)

CALCRIM No. 562 on "transferred intent" uses the same broad language as the instruction in Williams. CALCRIM No. 562 told the jury: "If the defendant intended to kill one person, but by mistake or accident killed someone else instead, then the crime, if any, is the same as if the intended person had been killed." It was properly given in this case of mistaken identity.

8. Attempt instruction

Kane contends that the trial court had a sua sponte duty to instruct the jury on the definition of "attempt" and that he was prejudiced by the trial court's failure to do so.

A trial court has a duty to instruct the jury on the meaning of a term when it has a technical legal meaning. (People v. Hudson (2006) 38 Cal.4th 1002, 1012.) A word or phrase has a technical legal meaning when it has a definition that differs from its nonlegal meaning. (People v. Estrada (1995) 11 Cal.4th 568, 574; accord People v. Hudson, supra, 38 Cal.4th at p. 1012.) When a word is commonly understood and not used in a technical sense, the court is not required to give an explanatory instruction. (People v. Estrada, supra, 11 Cal.4th at p. 574.)

"'"An attempt connotes the intent to accomplish its object, both in law . . . and in ordinary language."'" (People v. Bonner (2000) 80 Cal.App.4th 759, 764; see People v. Cain (1995) 10 Cal.4th 1, 44 [former CALJIC instruction on attempt "restates the common meaning of 'attempt'"].) Thus, there was no need for the trial court to define "attempt."

9. Notice of felony murder theory

Herrera and Kane contend that their murder convictions must be reversed because they received inadequate notice of the felony murder theory. Respondent contends that they have forfeited this claim. We agree. Assuming for the sake of argument that the argument were not waived, we would find that they received adequate notice.

Herrera and Kane did not move to reopen the case when they learned that the court would instruct the jury on felony murder. Thus, they forfeited the claim. (People v. Geier (2007) 41 Cal.4th 555, 592; People v. Silva (2001) 25 Cal.4th 345, 368; People v. Memro (1995) 11 Cal.4th 786, 869.) We do not agree with Kane and Herrera that such a request would have been futile. The court's comments do not indicate an unwillingness to consider reopening the case. Although Kane and Herrera learned of the felony murder theory the day before a discussion of jury instructions, "it was not at that time too late to move to reopen the proceedings to allow the defense to produce evidence addressing the theory." (People v. Gurule (2002) 28 Cal.4th 557, 630; see also People v. Kipp (2001) 26 Cal.4th 1100, 1131-1132 [defendant waived claim of insufficient notice by failing to move to reopen case when he learned that jury would be instructed on felony murder].) Thus, appellants' contention has been waived.

Assuming for the sake of argument that this claim were not forfeited, we would find adequate notice.

An accusatory pleading charging the defendant with murder need not specify the theory of murder relied upon by the prosecution. (People v. Hughes (2002) 27 Cal.4th 287, 369; People v. Bradford (2007) 154 Cal.App.4th 1390, 1421.) A pleading that charges a defendant with murder generally provides adequate notice of the possibility that the prosecution will proceed on a theory of felony murder. (People v. Brasure (2008) 42 Cal.4th 1037, 1057; People v. Silva, supra, 25 Cal.4th at p. 367.) In some cases, however, it may not. (People v. Kipp, supra, 26 Cal.4th at p. 1131; see also People v. Silva, supra, 25 Cal.4th at p. 368.)

Another source of notice of the prosecution's theory of the case comes from the evidence presented at the preliminary hearing. (People v. Hughes, supra, 27 Cal.4th at p. 370.) Here, Frias testified that she had placed her laptop computer on top of her bed prior to appellants arriving at the house. After hearing a gunshot, Ollivierre saw one of the appellants running away with what appeared to be a laptop, and Ollivierre noticed that the laptop computer was missing. Frias noticed that blood on the floor was "[v]ery close" to where her laptop had been. After the evidence was presented at the preliminary hearing, the prosecutor noted to the court, "[D]on't forget, that when these two are seen leaving the murder scene, a laptop is missing. And there's evidence that a cord, or some kind of power cord and laptop are being taken." The evidence together with the prosecutor's comments indicated that a theory of felony murder based on either a robbery or a burglary was possible. This was adequate notice. (See People v. Scott (1991) 229 Cal.App.3d 707, 717-718 [preliminary hearing and trial provided sufficient notice of felony murder based on robbery since there was circumstantial evidence that handguns and narcotics had been at the victim's house shortly before the murders but the items were not present after the murder].)

The prosecutor's opening statement during trial further indicated that a theory of felony murder was possible. During opening statement, the prosecutor stated that after a gunshot was heard at the Kelvin house, eyewitnesses saw one of the two defendants carrying something and that when Frias entered her room, she saw that her laptop computer was gone. The prosecutor stated, "Somebody stole her laptop." These comments too gave Kane and Herrera notice of the felony murder theory.

Based on both the preliminary hearing and the prosecutor's opening statement, appellants received sufficient notice that a theory of felony murder based on robbery or burglary was possible.

Herrera and Kane argue that reversal is required under Sheppard v. Rees (9th Cir. 1990) 909 F.2d 1234.) Decisions by the federal appellate courts are not binding and are not even persuasive authority when "they are contrary to California Supreme Court authority." (In re Bettencourt (2007) 156 Cal.App.4th 780, 801; see also People v. Figueroa (1992) 2 Cal.App.4th 1584, 1587.) The California Supreme Court has held that apprising a defendant of a murder theory during a discussion on the instructions gives a defendant "sufficient time to confront the facts that allegedly supported the theory, eliminating the possibility that any lack of notice was fatally unconstitutional." (People v. Gurule, supra, 28 Cal.4th at p. 630.) Thus, Sheppard is not even persuasive authority for reversal in this case.

Moreover, this case is unlike Sheppard. In Sheppard, the concept of felony murder had not been raised directly or indirectly during pretrial proceedings, opening statement, or the trial. It was only on the morning of closing arguments, after the parties had argued their jury instructions to the court, that the prosecutor raised a felony murder theory. (Sheppard v. Rees, supra, 909 F.2d at p. 1235.) Here, as we discuss, ante, Kane and Herrera were not faced with an '"ambush' situation [like the one] faced by the defendant in Sheppard." (People v. Gallego (1990) 52 Cal.3d 115, 189.)

10. Gang evidence

Appellants all contend that the trial court erred in admitting evidence that Herrera mentioned a gang to Rainer during the extortions and that Reed feared the Mexican Mafia. We do not agree.

Gang-related evidence is admissible if it is relevant to an issue in the case, is not more prejudicial than probative, and is not cumulative. (People v. Albarran (2007) 149 Cal.App.4th 214, 223.) Thus, gang evidence can help to prove "specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime." (Ibid.; see also p. 224.) The decision to admit gang evidence rests within the discretion of the trial court. (People v. Memory (2010) 182 Cal.App.4th 835, 858; People v. Albarran, supra, 149 Cal.App.4th at p. 225.)

a. CPA extortion reference

At the preliminary hearing for Kane and Herrera, Vigil and Motta testified in essence that no gang references were made during the extortions. Rainer testified that appellant Herrera told her that if she did not give him the answers he sought, "CPA is gonna find" where she lived and would kill her. Herrera did not state that he was a member of the CPA gang. Kane had never claimed CPA as his gang. The parties at the preliminary hearing stipulated that in the materials provided to the defense through discovery, there were no statements by Rainer mentioning CPA or Canoga Park Alabama.

At the preliminary hearing for Hernandez, Los Angeles Police Detective Foster Rains testified that he interviewed Vigil, who told him that, after Nunez's arrest, "threats were made that if money wasn't paid, . . . the gang CPA would take action, kill the witnesses; that kind of thing." Rains also testified that he also interviewed Rainer, who told him that after Nunez's arrest, appellant Herrera threatened that if the women did not "come up with money, then CPA gang would come after them and kill them."

Before trial, Hernandez made a motion in limine to preclude the prosecutor from "mentioning anything relating to gang or gang membership or affiliation." Kane and Herrera and codefendant Marino joined in the motion. The trial court denied the motion, finding it clearly relevant and significant, and also finding that it was not barred by Evidence Code section 352.

The CPA gang reference by Herrera related to the extortion charges. Extortion requires proof that the defendant obtained property from another by consent obtained by means of force or a fear-inducing threat. (Pen. Code, § 520; People v. Smith (1998) 62 Cal.App.4th 1233, 1237.) Thus, the CPA gang evidence was directly relevant to proving the elements of force or fear, even in the absence of evidence that any of the defendants belonged to the CPA gang. (See People v. Mendoza (2000) 24 Cal.4th 130, 178 [upholding testimony from robbery victim that the defendant said he was a "homeboy" and that she understood the term to refer to a gang; the testimony was relevant to establish the force or fear element of robbery].) The trial court was correct that the CPA gang evidence was highly relevant.

Appellants contend that the evidence that Herrera referred to CPA was weak and cumulative, was outweighed by the potential prejudicial effect of the statements and so should not have been admitted. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049 [in the absence of a gang allegation, "evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal"].)

Specifically, appellants contend that the evidence was weak because only Rainer testified that the statement had been made and her credibility was suspect. Rains testified that Vigil mentioned the CPA gang reference in an interview with him.

Appellants contend that the evidence was cumulative because there was also evidence that the extortion victims were threatened and subjected to physical violence. As the trial court correctly noted, even if the victims had already been subjected to force or fear, if the statement added to the fear that they felt, the statement was highly relevant.

The testimony about the gang reference was brief and so not highly inflammatory. Thus, the trial court did not abuse its discretion in admitting the evidence.

b. Mexican Mafia

The second gang reference, to the Mexican Mafia, first occurred during trial, during the redirect examination of Reed. She testified that she had not selected the correct photograph in a photographic lineup because she had been "very afraid" and "scared" about what might happen to her if she correctly identified people. Reed testified that she purposely selected the wrong photograph and that this was the first time she was making this admission.

During re-cross-examination by Herrera, Reed was asked to explain why she had not been afraid the day Araiza was shot but afraid "weeks later" in July 2009. Reed explained, "My husband has an uncle on the police force, and he said they were Mexican Mafia."

Hernandez's attorney objected to the comment as hearsay. The court overruled the objection, stating, "It's for the witness's state of mind. It'll be allowed for that purpose."

Outside the presence of the jury, Reed was asked why she intentionally identified the wrong person. Reed testified that her "husband's mother's boyfriend" had "an uncle on the police force" who stated that he knew about the shooting and "that they were Mexican Mafia." This person also stated that she would be killed if she identified the "right person."

The trial court stated that Herrera's attorney could ask additional follow-up questions in front of the jury and that the court could instruct the jury to consider the evidence for the limited purpose of the witness's state of mind. The court stated that the witness's fear explained her conduct and that it was "entirely relevant" and "survive[d] a[n] [Evidence Code section] 352 analysis." The court added that it was "really up to counsel" to decide how to proceed.

Appellants' attorneys indicated that they did not wish to have any further questions be asked about the Mexican Mafia and did not wish the court to take any further action. The prosecutor proposed that he be allowed to ask a question to "clean up" Reed's answer. He suggested that he could ask whether a statement had been made to her that she interpreted as a threat that caused her to make the identification that she did. The trial court asked the prosecutor to clarify that the threat had not come from any of the defendants. When queried, Kane's and Herrera's attorneys had no objection to that approach, while Hernandez's attorney said he "submitted" the matter.

During redirect examination, Reed testified that a statement was told to her that she interpreted as a threat and that it affected the identification that she had made. Reed also testified that the statement did not come from any of the defendants.

We see no abuse of discretion in the trial court's decision to allow Reed's statement to stand. The threat was clearly relevant to explain Reed's earlier incorrect identifications. The prosecutor's questions made it clear that appellants did not make the statement. The trial court told the jury that the evidence was admitted only to show Reed's state of mind.

Herrera contends that Reed's testimony regarding the Mexican Mafia amplified the court's error in admitting the testimony about the CPA gang, and that Reed's and Rainer's testimony linked him to the Mexican Mafia and so should not have been admitted. We do not agree. The testimony, reasonably understood, does not link Herrera to the Mexican Mafia.

Hernandez contends that the trial court could have sanitized the testimony about the Mexican Mafia. However, the jury had already heard Reed's testimony, and appellants indicated that they did not wish the court to take any further action. Moreover, Reed made it clear that the threats had not come from appellants. In any event, the reference to the Mexican Mafia was also harmless since it was brief and there was no explanation of what the Mexican Mafia was.

c. Due process

Appellants contend that the admission of the gang evidence violated their federal constitutional right to due process and a fair trial. The California Supreme Court has "long observed that '[a]pplication of the ordinary rules of evidence generally does not impermissibly infringe on a [] defendant's constitutional rights.' [Citation.]" (People v. Lindberg (2008) 45 Cal.4th 1, 26.) Further, the admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. (Estelle v. McGuire (1991) 502 U.S. 62, 70, 112 S.Ct. 475, 116 L.Ed.2d 385; Spencer v. Texas (1967) 385 U.S. 554, 563-564, 87 S.Ct. 648, 17 L.Ed.2d 606; People v. Falsetta (1999) 21 Cal.4th 903, 913.) Appellants have not shown fundamental unfairness.

11. Use of nicknames

Appellants contend that the prosecutor committed misconduct in opening statement by raising the "specter" of gang membership. Hernandez further argues that the witnesses' references to appellants' monikers was improper. Respondent contends that appellants have forfeited these claims. We agree that the claims are forfeited. Assuming for the sake of argument that the claims were not forfeited, we would see no misconduct.

In order to preserve a claim of prosecutorial misconduct for appeal, a defendant must object and seek an admonition, if a jury admonition would have cured the injury. (People v. Crew (2003) 31 Cal.4th 822, 839.) Appellants did not object and so have forfeited their claim of misconduct. Similarly, a defendant must object to the admission of evidence in order to preserve a claim of erroneous admission of that evidence. (People v. Samuels (2005) 36 Cal.4th 96, 111.) Hernandez did not object to the witnesses' use of the monikers and so has forfeited his claim.

Appellants contend that the failure to object should be excused because an objection would have been futile. Herrera further contends that an admonition would not have cured the injury because the effect of the prosecutor's statements could not be "unrung." However, a defendant claiming that he was not required to object '"must find support for his or her claim in the record. The ritual incantation that an exception applies is not enough.'" (People v. Gamache (2010) 48 Cal.4th 347, 371; see also People v. Panah (2005) 35 Cal.4th 395, 462.) Here, the mere fact that the court permitted two brief gang references is not enough to render an objection futile. We also see no support for the claim that an admonition would have been futile. (See People v. Lee (2011) 51 Cal.4th 620, 646 [because defendant did not object to prosecutor's reference to the nickname "Point Blank," any claim of prosecutorial misconduct was forfeited because an objection and request for admonition would have cured any harm].)

Assuming the claim was not waived, we see no prosecutorial misconduct in opening statement or in questioning the witnesses and no error in permitting the witnesses to refer to appellants by their monikers.

During opening statement, the prosecutor stated, "[Y]ou were introduced to this case as being 'The People of the State of California versus Kane, Herrera, Marino, and Hernandez.' What you're going to learn over the next two weeks of evidence or testimony and the witnesses that come into court - you're going to really learn that this case is really about the following four individuals: 'The People of the State of California versus Lazy,' what Michael Kane was known as, 'The People of the State of California versus Chacho,' what Matthew Herrera was known as, 'Looney,' Paul Marino's nickname, and 'L-Boy,' what Juan Hernandez was known as. [¶] It's the People of the State of California versus these four individuals. And you're going to get to know these four individuals and the behavior of these four individuals over the next couple of weeks." Thereafter, the prosecutor frequently referred to appellants by their nicknames. When the prosecutor discussed the drug deal with Abraham Nunez, he stated that Nunez "went by the nickname 'Bad Boy.'" Throughout the trial, various witnesses referred to appellants by their nicknames.

A prosecutor's behavior violates the federal Constitution when the conduct is so egregious that it renders the trial fundamentally unfair. (People v. Pariah, supra, 35 Cal.4th at p. 462; People v. Hill (1998) 17 Cal.4th 800, 819.) Prosecutorial misconduct violates the state Constitution if it involves deceptive or reprehensible methods to persuade the jury. (People v. Panah, supra, 35 Cal.4th at p. 462; People v. Hill, supra, 17 Cal.4th at p. 819.)

'"To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an inappropriate or erroneous manner.'" (People v. Gamache, supra, 48 Cal.4th at p. 371.) "In conducting this inquiry, we 'do not lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements." (People v. Frye (1998) 18 Cal.4th 894, 970.)

Here, appellants have not shown any misconduct. Although it is misconduct for a prosecutor to refer in opening statements to evidence deemed inadmissible by the trial court (People v. Crew, supra, 31 Cal.4th at p. 839), the prosecutor in this case did not impermissibly refer to excluded gang evidence. The prosecutor used appellants' nicknames without any references to any gang. The prosecutor's use of the nicknames was reasonable, since the witnesses in the case often referred to appellants by their nicknames. Indeed, appellants' attorneys sometimes referred to appellants by their nicknames. Thus, the prosecutor did not commit misconduct. (See, e.g., People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1027-1028 [rejecting claim that court erred by allowing reference to the nickname of "Lotto"]; People v. Brown (2003) 31 Cal.4th 518, 551 [court did not err in admitting reference to the defendant's nickname of "Bam" because it was "necessary to render a witness's testimony understandable"].)

Appellants have also failed to establish that the references to appellants' nicknames by the witnesses were improper. Indeed, courts have upheld such references in other cases. (See, e.g., People v. Lewis, supra, 39 Cal.4th at pp. 1027-1028 [rejecting claim that court erred by allowing reference to the nickname of "Lotto"]; People v. Brown, supra, 31 Cal.4th at p. 551 [court did not err in admitting reference to the defendant's nickname of "Bam" because it was "necessary to render a witness's testimony understandable"]; People v. Mendoza, supra, 24 Cal.4th at p. 178 [upholding reference to "homeboy"]; People v. Leon (2010) 181 Cal.App.4th 452, 458-463 [trial court did not err in allowing reference to defendant's moniker, which was derived from a horror movie].) Because identification was an issue and because some of the witnesses knew appellants by their nicknames, the trial court did not err in allowing the witnesses to refer to appellants by those monikers as it would have been nearly impossible to sanitize the entire trial from reference to those nicknames. (People v. Brown, supra, 31 Cal.4th at p. 551.)

To the extent that Hernandez is arguing that the evidence regarding the nicknames violated his federal constitutional rights, this claim must be rejected because the evidence did not render the trial fundamentally unfair. (People v. Partida (2005) 37 Cal.4th 428, 439 [admission of evidence violates due process only if it renders the trial fundamentally unfair].) The nicknames were not connected to a gang and did not by themselves suggest a propensity to commit the charged offenses. Thus, the use of nicknames did not violate the federal Constitution.

Herrera argues that the prosecutor's comments combined with the erroneous admission of the gang-related evidence resulted in cumulative prejudice. "[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error." (People v. Hill, supra, 17 Cal.4th at p. 844.) Since the gang evidence was properly admitted, and the nicknames properly used, there was no cumulative prejudice. (People v. Parson (2008) 44 Cal.4th 332, 368; People v. Alfaro (2007) 41 Cal.4th 1277, 1330.)

12. Sufficiency of the evidence - extortion

Hernandez contends that there is insufficient evidence to support his conviction for extortion. He contends that the only evidence showing that he was present during the extortions was the testimony of one unreliable witness, Rainer, and that is insufficient to support the verdict. Hernandez is wrong on the facts and the law.⁴

4 Kane joins Hernandez's contention. However, the evidence against Kane was different than that against Hernandez. Rainer identified Kane much earlier than Hernandez. Motta testified about Kane's presence in the bedroom and involvement in the extortions. Kane helped collect money from the women. Kane does not point to any flaws in this evidence. Thus, the evidence against him is sufficient.

The Supreme Court has repeatedly held that the uncorroborated testimony of a single witness is sufficient to sustain a conviction unless the testimony is physically impossible or inherently improbable. (People v. Avila (2009) 46 Cal.4th 680, 703; People v. Boyer (2006) 38 Cal.4th 412, 480; People v. Scott (1978) 21 Cal.3d 284, 296.) Further, Rainer's identification was not the only evidence against Hernandez.

Hernandez implies that Vigil, who was present during the extortions, did not identify him as one of the extortionists. He contends that many months later she merely stated that he resembled one of the men.

Vigil did identify Hernandez as being in the room during the extortion and hitting Rainer, but stated that she was not one hundred percent certain that he was the person she saw at the Cohasset house or that he hit Rainer. One hundred percent certainty is not required from a witness.

Further, there was other circumstantial evidence which connected Hernandez to the extortions. He was not a stranger to the other people involved in the extortions. Hernandez was friends with Marino, who was identified as being present at the Cohasset house and participating in the extortions. Tammy Oltman testified that Hernandez came to the house on June 17. Thus, Hernandez had connections to the Cohasset house and had visited there.

This evidence alone could not convict Hernandez, but it does bolster the testimony of Rainer, the main witness against Hernandez.

Hernandez contends that Rainer's identification must be disregarded because she had a mental illness, had used methamphetamine on the day of the extortions, had no injuries despite being the victim of what she claimed was a brutal assault, did not identify him until months after the extortion, and had been given money by the police to relocate and pay rent.

Hernandez further contends that any testimony indicating that he was at the Cohasset house was not reliable because he was in a wheelchair at the time of the extortions and it is inherently improbable, if not physically impossible, for him to have travelled from his residence to the Cohasset house.

It is for the jury to decide whether a witness is credible and what weight to give to that witness's testimony. (See, e.g., People v. Letner and Tobin (2010) 50 Cal.4th 99, 161-162.) In order to warrant rejection of a witness's testimony by an appellate court, it must be physically impossible for the testimony to be true, or its falsity must be apparent without resorting to inferences or deductions. (People v. Ennis (2010) 190 Cal.App.4th 721, 728.) Thus, for example, the testimony of a rape victim, who lacked visible injuries, failed to report the rape or seek help afterwards, had a reputation as a liar, was a drug addict and convicted thief and may have suffered from drug induced paranoia was sufficient to uphold a rape conviction. (People v. Maury (2003) 30 Cal.4th 342, 403.)

Rainer was at least as reliable a witness as the victim in Maury, supra. Rainer was taking medication for her mental health problems at the time of the extortions. She had used a relatively small amount of methamphetamine several hours before the extortions.⁵She did report the extortions to police fairly soon afterwards, after the murder of Araiza.

5 Vigil, who ingested the same amount of methamphetamine as Rainer and at the same time, displayed no signs of being under the influence of any drugs when she was arrested at Jack in the Box.

Rainer received some help from the police to relocate and about three months worth of food stamps, both of which occurred well before trial. She was clearly afraid of retaliation if she cooperated with the police. This does not make her testimony unreliable.

Hernandez's claim that it was inherently improbable, if not physically impossible for him to travel to the Cohasset house is contradicted by the evidence. Jackson testified that on June 15, Hernandez and his fiancé met up with Jackson and friends, went to visit an apartment in Sunland and had dinner at a McDonald's before Hernandez was dropped off at the Reaza house. Clearly, there was nothing preventing Hernandez from travelling from place to place with the assistance of a friend. It may even have been possible for him to drive himself. Oltman testified that Hernandez was at the Cohasset house on June 17. Thus, there is nothing inherently improbable or physically impossible about him travelling from the Reaza house to the Cohasset house.

13. New trial motion

Hernandez contends that the trial court erred in denying his motion for new trial because the weight of the evidence was contrary to the verdicts.

In his new trial motion, Hernandez argued that he was denied a fair trial because the court denied his severance motion, did not instruct on a lesser included offense, erred in allowing other-crimes evidence and did not grant his Penal Code section 1118.1 motion despite evidence that he was not at the Cohasset house on June 15, 2009. Specifically, Hernandez argued, "On a motion for new trial after a conviction on the grounds of insufficiency of evidence to support a conviction, the weight to be given to the circumstances for the conviction was for the trial court." Hernandez noted that "[t]o justify a new trial, the judge must be convinced, not only that evidence sufficiently supported the verdict, but that in all respects the verdict was legal and in furtherance of justice." Thus, Hernandez did not clearly articulate whether he was moving for a new trial on the ground of insufficiency of the evidence or on the ground that the evidence was contrary to the verdict.

In deciding a motion for a new trial on the ground that the verdict is contrary to the evidence, "the trial court's function is to 'see that the jury intelligently and justly perform[ed] its duty and, in the exercise of a proper legal discretion, to determine whether there is sufficient credible evidence to sustain the verdict.' [Citation.] The trial court's duty is to review the evidence independently and satisfy itself that the evidence as a whole is sufficient to sustain the verdict. [Citation.] [¶] Although the trial court is to be 'guided' by a presumption in favor of the correctness of the jury's verdict [citation], this means only that the court may not arbitrarily reject a verdict which is supported by substantial evidence. The trial court is not bound by the jury's determinations as to the credibility of witnesses or as to the weight or effect to be accorded to the evidence. [Citations.] Thus, the presumption that the verdict is correct does not affect the trial court's duty to give the defendant the benefit of its independent determination as to the probative value of the evidence. [Citation.] If the court finds that the evidence is not sufficiently probative to sustain the verdict, it must order a new trial. [Citations.]" (People v. Dickens (2005) 130 Cal.App.4th 1245, 1251-1252.)

Here, the court's comments indicate that it did independently review the evidence. The court stated: "You also indicated insufficient evidence. "I - I tend to disagree. I think - obviously, the jury disagreed." Thus, the court separated its view of the evidence from that of the jury. The court then gave its view that it was "reasonable" and "not illogical" for the jury to believe Rainer, which indicates that the court did make its own evaluation of this key witness's testimony. The court also found that there were reasons for the jury to disbelieve the exculpatory testimony of Motta, again indicating that the court did make its own evaluation of a key witness. The court concludes that the evidence "sustains" the verdicts.

As we discuss in section 12, ante, there was ample evidence to support Hernandez's convictions for extortion. The trial court considered the weaknesses in the evidence and the conflicts and resolved them against appellant. Thus, the trial court did not abuse its discretion in denying Hernandez's motion for new trial. (See People v. Mooring (1982) 129 Cal.App.3d 453, 461.)

14. Motion to sever

Hernandez and codefendant Marino moved to sever their extortion trial from the extortion and murder trial of Kane and Herrera. The court denied the severance motion, finding that the extortions were "intertwined" with the murder because they provided the motivation for the murder. The court added that it was "very clear from the evidence presented at the prelim that two defendants played a role" in the murder, that "it was two defendants and no one else." And that the jury would be "able to distinguish that crime" from the extortion.

Hernandez contends the trial court erred in denying his severance motion, and that this error violated his federal constitutional rights to due process and a fair trial. We see no abuse of discretion by the trial court and no violation of appellant's constitutional rights.

Under Penal Code section 954, "[a]n accusatory pleading may charge two or more different offenses connected together in their commission . . . or two or more different offenses of the same class of crimes or offenses." Offenses that are committed at different places and times against different victims are connected in their commission when they are linked by a common element. (People v. Mendoza (2000) 24 Cal.4th 130, 160.)

Here, the murder and extortions were properly joined under Penal Code section 954. The prosecutor's theory was that the extortions and murder both stemmed from appellants' belief that the victims were responsible for Nunez's arrest. The murder and the extortions were also of the same class of crimes since they involved assaultive conduct against the victims. (See Pen. Code, § 518 [stating that extortion is the obtaining property through the use of force or fear]; cf. People v. Musselwhite (1998) 17 Cal.4th 1216, 1243 [noting that robbery and murder are of the same class because they both involve assaultive conduct on the victim].)

When the statutory requirements of joinder are satisfied, a defendant must make a clear showing of prejudice to establish that the trial court abused its discretion in denying his severance motion. (People v. Hartsch (2010) 49 Cal.4th 472, 493; People v. Soper (2009) 45 Cal.4th 759, 774.) In determining whether there was an abuse of discretion, the reviewing court examines the record before the trial court at the time it made its ruling. (People v. Hartsch, supra, 49 Cal.4th at p. 493; People v. Soper, supra, 45 Cal.4th at p. 774.) The following factors are considered: (1) whether the evidence would be cross-admissible in separate trials; (2) whether some of the charges are likely to inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case so that the evidence may affect the outcome of some or all of the charges; (4) whether one of the charges is a capital offense or the joinder converts the matter into a capital case. (People v. Hartsch, supra, 49 Cal.4th at p. 493; see People v. Soper, supra, 45 Cal.4th at pp. 774-775.)

The California Supreme Court has '"frequently . . . observed that if evidence underlying the offenses in question would be "cross-admissible" in separate trials of other charges, that circumstance normally is sufficient, standing alone, to dispel any prejudice and justify a trial court's refusal to sever the charged offenses."' (People v. Hartsch, supra, 49 Cal.4th at p. 493; see People v. Soper, supra, 45 Cal.4th at pp. 774-775.) As Hernandez acknowledges, evidence regarding the extortions would have been admissible in a case involving the murder since the extortions helped to prove the motive for the murder and the murder arose from the same circumstances as the extortions. Indeed, the extortions committed by appellant were "tightly intertwined temporally . . . and motivationally" with the murder. (People v. Smith (2007) 40 Cal.4th 483, 512.) Although evidence of the murder probably would not have been admissible in a trial involving the extortion, "complete (or so-called two-way) cross-admissibility is not required." (People v. Hartsch, supra, 49 Cal.4th at p. 493; see also Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1221; People v. Smith, supra, 40 Cal.4th at p. 511.) Because evidence of the extortions would be admissible in a trial involving the murder, no prejudice has been shown. (See, e.g., People v. Cummings (1993) 4 Cal.4th 1233, 1283-1284 [evidence related to robbery counts would be admissible during trial of murder charge to establish motive for the murder].)

The other factors also establish that no prejudice has been shown. First, the murder charge was unlikely to inflame the jury against Hernandez. As the trial court pointed out, the preliminary hearing evidence made it clear that only Kane and Herrera were involved in the murder. Thus, the jury would be able to distinguish between the two sets of charges, and the murder charge would have little effect on the jury in regards to the extortion charges. (People v. Mendoza, supra, 24 Cal.4th at p. 162 [counts involving murder were "sufficiently distinct" from counts involving robbery and burglaries and thereby rendered "the likelihood of prejudice minimal"].)

Second, the murder was not exceptionally inflammatory compared to the extortions. The murder was accomplished by a single gunshot while the extortions involved physical violence and threats of death.

Third, the joinder of the charges did not result in a weak case being tried with a strong case. As we discuss elsewhere in this opinion, we do not view the case against Hernandez as particularly weak. "In any event, as between any two charges, it always is possible to point to individual aspects of one case and argue that one is stronger than the other." (People v. Soper, supra, 45 Cal.4th at p. 781.) "A mere imbalance in the evidence, however, will not indicate a risk of prejudicial 'spillover effect,' militating against the benefits of joinder and warranting severance of properly joined charges." (Ibid.)

Fourth, one of the charges was not a capital offense, and the joinder of the charges did not convert the matter into a capital case. Thus, none of the factors support Hernandez's contention that the joinder of the charges prejudiced him.

In addition, the benefits of joinder were substantial since separate trials would require the calling of many of the same witnesses. The result would be trying the same case twice.

Hernandez's reliance on Calderon v. Superior Court (2001) 87 Cal.App.4th 933 is misplaced. The facts of that case are completely different from this case. In that case, an attempted murder charge against Calderon and a codefendant was joined with an "execution-style" murder charge against the codefendant and another man. The appellate court found that the trial court abused its discretion in consolidating the cases because, with one exception, none of the evidence related to the "execution-style" murder was admissible against Calderon, the "execution-style" murder was likely to inflame the jury, and the evidence against Calderon was weak but the evidence against his codefendant was strong. (Id. at pp. 939-941.)

Hernandez has failed to make a clear showing of prejudice. Thus, the trial court did not abuse its discretion in denying Hernandez's severance motion.

Hernandez has also failed to show "actual prejudice amounting to a denial of fundamental fairness." (People v. Hartsch, supra, 49 Cal.4th at p. 494; see People v. Mendoza, supra, 24 Cal.4th at p. 162.) "'A pretrial ruling that was correct when made can be reversed on appeal only if joinder was so grossly unfair as to deny due process.'" (People v. Hartsch, supra, 49 Cal.4th at p. 494; see People v. Mendoza, supra, 24 Cal.4th at p. 162.)

Hernandez has not made this showing. Courts have found that joinder resulted in no prejudice "'"when the evidence of each crime is simple and distinct.'"" (People v. Soper, supra, 45 Cal.4th at p. 784.) As we discuss, ante, the evidence related to the murder was easily distinguished from evidence related to the extortions, the case against Hernandez was not weak, and the evidence regarding the murder was not unduly inflammatory compared to the evidence involving the extortions. Further, the jury was instructed on the elements of murder and extortion, on the burden of proof necessary for conviction, that the jury must separately consider the evidence as it applied to each defendant, and that each count charged a separate offense that must be decided separately. "These instructions mitigated the risk of any prejudicial spillover." (Ibid.) In light of the foregoing, the joinder of the charges was not so grossly unfair as to result in a denial of due process. Therefore, Hernandez's contention must be rejected.

15. Other crimes evidence

Hernandez contends that the court abused its discretion in admitting other crimes evidence, and that this evidence violated his federal constitutional rights to due process and a fair trial. We do not agree.

Under Evidence Code section 1101, evidence of other crimes is not admissible to show criminal propensity, but may be admitted if it is relevant to establish a material fact in the case. (People v. Jones (2011) 51 Cal.4th 346, 371; People v. Lindberg, supra, 45 Cal.4th at p. 22.) "To be admissible, there must be some degree of similarity between the charged crime and the other crime, but the degree of similarity depends on the purpose for which the evidence was presented." (People v. Jones, supra, 51 Cal.4th at p. 371.) The least degree of similarity is needed when the evidence is submitted to prove intent. (Ibid.; People v. Soper, supra, 45 Cal.4th at p. 776.) "In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to the charged offense to support the inference that the defendant probably acted with the same intent in each instance." (People v. Lindberg, supra, 45 Cal.4th at p. 23; see also People v. Soper, supra, 45 Cal.4th at p. 776.) The decision whether to admit such evidence lies within the trial court's discretion. (See People v. Jones, supra, 51 Cal.4th at p. 371.)

Here, the prosecutor filed a motion under Evidence Code section 1101, subdivision (b), to admit evidence that on October 21, 2009, Hernandez kidnapped Marina Lopez "for an unpaid drug debt and forced her to his apartment where he kept her until her boyfriend paid ransom for her return." The prosecutor contended that the evidence was admissible to prove motive and intent.

Hernandez opposed the motion. Kane's attorney also objected to the evidence due to the "spillover effect that will arise."

The court stated that intent was a major issue in the case and that the other crimes evidence was relevant to intent. The court noted that the evidence at the preliminary hearing showed that Herrera was "the primary actor" and that the other defendants could argue that "they were present and not actively participating."

The court also found that the evidence was admissible under Evidence Code section 352. The court noted that the evidence would involve one witness, was not remote in time and was not more inflammatory than the current extortion charges. Further, the other crimes were independent of the charged offenses. The court added that the jury would be given a limiting instruction.⁶ The court granted the prosecution's motion to admit the evidence.

6 Prior to the testimony of the victim of the other crimes, the court gave the following instruction: "And I have an instruction that I want to give you regarding the testimony of the next witness that the People are calling: [¶] 'The People,' through this next witness 'will be presenting evidence that defendant Hernandez committed an offense that is not charged in this case. [¶] 'You may consider this evidence only if the People have proved by a preponderance of the evidence that Hernandez - defendant Hernandez, in fact, committed the uncharged offense. Proof by a preponderance of the evidence is a different burden than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] 'If the People have not met their burden, you must disregard this evidence entirely. [¶] 'If you decide that defendant Hernandez committed the uncharged offense, you may, but are not required to, consider that evidence for the limited purpose of deciding whether or not defendant Hernandez acted with the intent to induce the alleged victims Jamie Rainer and Sandy Motta to consent to give money or property as part of the crimes of extortion charged in counts 1 and 2 in this case, or whether defendant Hernandez intended to aid and abet the commission of extortion as charged in counts 1 and 2 in this case. [¶] 'In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offense and the charged offenses. [¶] 'Do not consider this evidence for any other purpose. [¶] 'Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime. [¶] 'If you conclude that defendant committed the uncharged offense, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of either of the crimes charged in counts 1 or 2. The People must still prove each charge beyond a reasonable doubt."
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Hernandez argues that the trial court abused its discretion in finding that the other crimes evidence was relevant and not unduly prejudicial and that it was admissible under Evidence Code section 352.

We see no abuse of discretion in the trial court's finding that there were sufficient similarities between the charged offenses and the uncharged offenses to show intent. Both sets of offenses involved a drug deal where Hernandez believed that the victims owed money, and he engaged in violent, threatening behavior to obtain those funds. In both situations, the victims also failed to initially report the crimes when they had the opportunity to do so.

Hernandez contends that the other crimes evidence had no probative value because intent was not an issue. Not so. The prosecution has the burden of proving every element of the charged offense, and this burden is not relieved by a defendant's decision not to contest an element of the offense. (People v. Jones, supra, 51 Cal.4th at p. 372; see also People v. Escudero (2010) 183 Cal.App.4th 302, 313 ["There is no requirement that a defendant dispute the element of intent before a prosecutor may introduce relevant evidence on the issue."].) Hernandez's assertion that his defense was to focus on identity, instead of intent, does not eliminate the prosecution's burden to establish both elements beyond a reasonable doubt. (People v. Jones, supra, 51 Cal.4th at p. 372.)

'"Evidence is prejudicial within the meaning of Evidence Code section 352 if it "'uniquely, tends to evoke an emotional bias against a party as an individual . . . .""" (People v. Foster, supra, 50 Cal.4th at p. 1331.) That was not the case here. The other crime was not in any way more inflammatory or severe than the charged offenses. Further, the jury was instructed not to consider the evidence to prove that appellant was a person of bad character or had the disposition to commit the crimes.

Hernandez further contends that the admission of the evidence violated his federal constitutional rights. The application of the ordinary rules of evidence generally does not violate a defendant's constitutional rights. (People v. Lindberg, supra, 45 Cal.4th at p. 26.) Hernandez has not demonstrated that his case presents an exception to this general rule. (See People v. Foster, supra, 50 Cal.4th at p. 1335 ["because the evidence was relevant to prove a fact of consequence, its admission did not violate defendant's due process rights"].)

16. Cumulative error

Hernandez and Kane contend that the alleged errors, when considered collectively, warrant reversal.

"Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32; see People v. Hill (1998) 17 Cal.4th 800, 844.) Here, even if errors are assumed and are considered collectively, those errors did not prejudice appellants for the reasons previously given. (People v. Moore (2011) 51 Cal.4th 386, 417-418; People v. Alexander (2010) 49 Cal.4th 846, 939; People v. Davis (2009) 46 Cal.4th 539, 627.)

17. Attorneys' fees

Appellants were ordered to pay $268 in attorney's fees. Appellants now contend that the order for attorney's fees was improper because the trial court did not provide notice or a hearing on their ability to pay the fee, and there was no evidence of their ability to pay the fees or of the actual costs to the county. Respondent contends that appellants have forfeited this contention.

Due to the unusual nature of attorney's fees awards in criminal cases, we do not find forfeiture. (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1397; People v. Viray (2005) 134 Cal.App.4th 1186, 1214-1216.) Further, even if we were to find forfeiture from a failure to object, we would have to find ineffective assistance of counsel in failing to object.

Appellants were entitled to notice that such a fee was being considered and a hearing on the issue of whether they could pay attorney's fees. Under Penal Code section 987.8, subdivision (b), the trial court can order the defendant "to pay all or a portion of the cost" incurred by appointed counsel in representing the defendant. (People v. Flores (2003) 30 Cal.4th 1059, 1061-1062; see People v. Phillips (1994) 25 Cal.App.4th 62, 72-73.) Before such a fee is assessed, the court must provide the defendant with notice and a hearing to determine "the present ability of the defendant to pay" such a fee. (Pen. Code, § 987.8, subd. (b); People v. Phillips, supra, 25 Cal.App.4th at p. 73.) Appellants did not receive the required notice, and no hearing was held to determine their ability to pay for attorney's fees or the cost of representing appellants. On the record before us, Kane and Herrera have no ability to pay. Thus, there is a reasonable probability that they would have achieved a more favorable outcome if counsel had objected to the imposition of attorney's fees without notice and a hearing.

Respondent contends that if Kane and Herrera have not forfeited their claim, the matter should be remanded to the trial court to hold such a hearing. (See People v. Flores, supra, 30 Cal.4th at pp. 1068-1069.) We agree in part. The matter is remanded to the trial court with directions to either strike the attorney's fee awards or to hold a hearing on the matter.

18. Custody credit - Herrera

Herrera was arrested on June 21, 2009. On June 3, 2010, Herrera was given credit for 347 days of actual custody. He contends that he is entitled to an additional day of custody credit. Respondent agrees. We agree as well. The correct total of the actual custody days is 348.

Under Penal Code section 2900.5, subdivision (a), a defendant is entitled to credit against his time in state prison for "all days" spent in local custody prior to sentencing. (People v. Nunez (2008) 167 Cal.App.4th 761, 764; People v. King (1992) 3 Cal.App.4th 882, 886.) A partial day is treated as a whole day. (People v. King, supra, 3 Cal.App.4th at p. 886; see also People v. Smith (1989) 211 Cal.App.3d 523, 526.)

Disposition

The attorneys' fees issue is remanded to the trial court with directions to either strike the attorney's fee awards or to hold a hearing on the matter. Herrera's presentence custody credit is ordered corrected to a total of 348 days. The clerk of the superior court is instructed to prepare an amended minute order and abstract of judgment that reflects these corrections, and to deliver a copy to the Department of Corrections and Rehabilitation. The judgment of conviction is affirmed in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J. We concur:

TURNER, P. J.

KRIEGLER, J.