The People v. Flores CA2/5

Filed 9/13/13 P. v. Flores CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B241530

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA086309)
v.

EFREN FLORES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of the County of Los Angeles,
Arthur Jean, Jr., Judge. Affirmed.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Stephanie A. Miyoshi and
Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
 INTRODUCTION

A jury found defendant and appellant Efren Flores (defendant) guilty of first
degree murder and two counts of attempted murder. On appeal, defendant contends that
there was insufficient evidence to support the guilty verdicts, his trial counsel provided
ineffective assistance of counsel by failing to object to certain hearsay statements of a
former codefendant, and the trial court erred by failing to instruct the jury sua sponte on
accomplice liability. Defendant also challenges his sentence under the gun-use
enhancement on the grounds that it violates California’s multiple conviction rule and
principles of double jeopardy.
We hold that there was substantial evidence in support of the jury verdicts, the
claimed ineffective assistance of counsel was not prejudicial, and the claimed
instructional errors were not prejudicial. We further hold that defendant’s challenges to
his sentence under the gun-use enhancement are without merit. We therefore affirm the
judgment of conviction.

FACTUAL BACKGROUND

A. Prosecution’s Case
On the morning of September 14, 2009, Carlos Garcia1—a member of defendant’s
and former codefendant Jesus Gonzales’s 2 Westside Longo gang—walked to a liquor
store at the corner of 20th Street and Pacific Avenue in Long Beach to buy cigars. After
he left the liquor store, Garcia had a confrontation with African American and Hispanic

1
Because the trial court found that Garcia was unavailable to testify, the
prosecution introduced his preliminary hearing testimony at trial.
2
Garcia knew defendant by the nickname “Grouchy” and Gonzales by the
nickname “Chuyito” or “Little Chewy.” Gonzales was charged in the same information
as defendant, but his case was severed prior to trial.

2
members of the 18th Street gang. As he crossed the street from the liquor store parking
lot, a van pulled up and the two Hispanic males sitting in the front “started throwing up
18” gang signs.3 In response, Garcia “threw up West Side Longo” gang signs. Garcia
continued walking, but several African American and Hispanic gang members exited the
van and began walking toward Garcia. In response, Garcia made a motion, as if he was
carrying and about to produce a gun, and then kept walking home.
On the evening of September 14, 2009, at around 10:30 p.m., James Gaither, an
African American, was sitting on the stairs outside his apartment complex with his
African American friends David and Robert Tripplet.4 Gaither was sitting at the top of
the stairs, Robert was located at the middle of the stairs, and David was at the bottom. As
Gaither and David were text messaging and Robert was listening to his Ipod, two
Hispanic males walked up to the group. Gaither did not notice the two men until one of
them starting talking. He heard the words “where you from” and suspected that there was
going to be trouble. David responded, “we don’t’ bang. We aren’t from nowhere,”
trying to calm the situation. The same Hispanic male then said, “Fuck Crabs, fuck Crabs,
where you from. Fuck Crabs. Where you from.”5 Based on those statements, Gaither
became certain that “something was about to happen” and he “froze.”
The male Hispanic who had done all the talking, and who Gaither identified at
trial as defendant, seemed intoxicated, but the other Hispanic male did not. The other
male Hispanic “grabbed” defendant, as if the two were about to leave. Just as the other
male Hispanic was pulling defendant away, defendant produced a gun from his pocket,
pointed at David, and began shooting. Gaither heard gun fire and saw David, who had
been standing, fall to the ground.

3
Garcia considered anyone who threw 18th Street gang signs at him as an enemy.
4
To avoid confusion, the Tripplet brothers will be referred to by their first names.
5
Gaither understood the term “Fuck Crabs” to be an expression of disrespect
toward Crip gangs. Crip gang members in Long Beach were predominantly African
American or Asian.

3
 Gaither turned and tried to “get in the house,” but before he could open the door,
he was shot in the hand as he reached for the door knob.6 As he turned around to check
on David and Robert, Gaither saw defendant and the other Hispanic male running away.
Then he saw Robert “sliding down the stairs, bumping his head as he was going down.”
Gaither grabbed Robert, turned him over, and started shaking him. Robert’s eyes were
closed and he was “snoring like he was asleep.” Gaither kept shaking Robert and
“screaming his name trying to wake him up.” David stood up and told Gaither he was
going into the house to “get a towel to put on his wounds.” Gaither noticed that David
had been shot in the face and “somewhere else,” but he was not focused on David
because he knew David was “alive and talking.”
David testified that on September 14, 2009, at around 10:00 or 10:30 p.m., he had
just returned to his apartment from the store with his brother Robert and his friend
Gaither. He was standing at the bottom of the apartment building’s stairs, Robert was
sitting in the middle of the stairs, and Gaither was sitting at the top of the stairs.
According to David, “[t]wo [Hispanic] guys walked up and started banging on [David,
Robert, and Gaither] asking [them] where [they] were from.” David replied, “No. We
don’t bang.” The male Hispanic who asked where the men were from responded by
saying, “Fuck Crabs” two times. 7
The male Hispanic who had been speaking, and who David identified at trial as
defendant, then pulled out a gun and pointed it at David’s face from three or four feet
away. David put up his hands, but defendant “started shooting.” David felt pain in his
face, turned, was shot again in the back, and fell to the ground.
David continued to hear gun shots, as many as four or five. When he stood up, he
saw Robert lying on the stairs. Robert was not moving, so David went to him to
determine if he was breathing. After David determined that Robert was still breathing, he

6
Gaither received stitches in his hand at the hospital.
7
David understood the term “Fuck Crabs” to mean “Fuck Crips.”

4
went into the house to retrieve a towel and when he came out, the police had arrived. An
ambulance took David to the hospital where he stayed for a week to receive treatment
and care for bullet wounds to the face, shoulder, and back. At the time of trial, David
was still experiencing back pain from his wounds.
Robert was transported to the hospital where he died. The deputy medical
examiner who performed the autopsy on Robert found a single, fatal gunshot entry
wound beneath the right eye. The bullet passed through the brain and was recovered
from inside the skull cavity.
According to subpoenaed telephone records, defendant called Garcia at
approximately 10:55 p.m. the night of the shootings. Garcia, who lived near the scene of
the shooting, said defendant asked him if he had heard any gunshots. When Garcia
replied in the negative, defendant asked him if there were police outside. Garcia went
outside his apartment and confirmed to defendant that there were police near the
intersection of 20th Street and Cedar Avenue. Defendant then told Garcia that he had
“laid down some Crabs,” which Garcia understood to mean defendant had shot some
Crips gang members. Garcia responded “all right then, whatever” and terminated the
call.
The next day Garcia walked to defendant’s house and spoke to him about the
shootings the night before. Defendant told Garcia that he and Gonzales had been at a bar
watching a Raiders game on the night of the shootings. The two men, who were drunk,
walked from the bar down 20th Street where they saw some Crips gang members.
Defendant and Gonzales pretended to be more drunk than they were, “acting like they
couldn’t walk that good.”
As defendant and Gonzales approached the three Crips gang members, one of the
three walked down the stairs, and defendant began to argue with him. According to
Garcia, “Grouchy hit [the three black Crips gang members] up. And then one of the
Crips said he ‘didn’t bang,’ but he said, ‘Cuz’ at the end. When he said that, that’s when
Grouchy just started shooting at them.” After the shooting, defendant and Gonzales ran
away.

5
 City of Long Beach Police Detective Todd Johnson was one of the officers
assigned to investigate the shootings of Robert, David, and Gaither. He arrived at the
scene of the shootings after midnight. Officers at the scene had already recovered two
bullet fragments.
During the course of his initial investigation, Detective Johnson developed
information suggesting that Robert may have been involved in an altercation earlier on
the day of the shooting. That information, in turn, caused Detective Johnson to
investigate Garcia. A Crip’s gang member informed the detective that a Hispanic male
with a “W” on his hat had been involved in an incident at a liquor store on the corner of
20th Street and Pacific Avenue. A video surveillance tape from the store showed Garcia,
as well as a group of men who “‘banged’” on Garcia. When Detective Johnson attempted
to contact Garcia, he learned that Garcia had been arrested on a probation violation.
During a search of Garcia’s residence, the detective recovered a hat with a “W” on it.
Detective Johnson next assembled photographs of eight different Hispanic males,
one of which was a photograph of Garcia. The detective showed the photographs to
David and Gaither, but neither of them identified Garcia as being involved in the
shootings.
Because Detective Johnson suspected that Garcia knew something about the
shootings, he went to his residence and brought him back to the police station for
questioning. Garcia initially denied any involvement in the shootings, but after further
questioning, he admitted that “Drowsy” had called him and told him that “Little Chucky”
from the West Side Longo gang did the shooting with “Chuyito’s” older brother.
Detective Johnson knew Drowsy’s telephone number and reviewed records for it,
but did not find any telephone calls from Drowsy to Garcia during the relevant time
frame. As a result, he interviewed Garcia a second time. During that second interview,
Garcia told the detective that “Clover” did the shooting. When Detective Johnson
investigated Clover, he learned that he was Don Gonzales, the brother of Gonzales and a
West Side Longo gang member. But when he attempted to locate Clover, the detective
discovered that he had been incarcerated for immigration related reasons.

6
 Based on the information he obtained on Clover, Detective Johnson and his
partner, Detective William Mutsubara, interviewed Garcia a third time, and the latter
portion of that interview was tape recorded. During the recorded portion of the interview,
which was played for the jury, Garcia provided, inter alia, the “real story.” Garcia
admitted that the first version of the shootings that he told the detectives was not true, and
then he explained to the detectives that he learned about the shootings from defendant in
a telephone conversation the night of the shootings. Defendant telephoned Garcia and
asked if there were police outside Garcia’s apartment. Garcia went outside and informed
defendant that he saw the police. In response, defendant said “Yeah, I just laid down
some crabs . . . .”
The next day Garcia went to defendant’s house and defendant provided details of
the shootings. According to defendant, he and Gonzales left a bar after watching a
Raiders game and as they were walking and acting like they were drunk, they saw “three
crabs right there where [Garcia] live[d] . . . .” One of the men came down the stairs
toward defendant who told the men “where he was from.” When the man said, “Oh, we
don’t bang cuz” defendant “stepped back and he said fuck crabs and he started shooting
at them and . . . both Chuyito and Grouchy started running away.”
Garcia informed the detectives that he also spoke to Gonzales after the shootings.
Gonzales’s version of the shootings was substantially similar to the version defendant had
given Garcia. According to Gonzales, he and defendant were coming back from
watching a Raiders game, walking near Garcia’s residence. Gonzales and defendant were
acting as if they were drunk, holding on to one another. The two men “went up to the
three black guys that live[d] right there upstairs . . . .” Defendant “hit them up” and told
them “where he was from . . . .” One of the African American males responded “oh we
don’t bang cuz” and then defendant “stepped back and . . . just started shooting at them
and . . . [Gonzales and defendant] started running.”
In addition to recounting his conversations with defendant and Gonzales about the
shootings, Garcia told the detectives about the incident at the liquor store that occurred
earlier on the day of the shootings. That morning, Garcia went to Eddie’s liquor store on

7
20th Street and Pacific Avenue to buy some cigars. As he was walking home, a
burgundy van pulled into the parking lot of the liquor store and a male in the front
passenger seat “[threw] up 18,” causing Garcia to “throw up Longo at him . . . .” Some
Mexican males and two African American males emerged from the van and began
walking toward Garcia. In response, Garcia “grabbed [his] little pocket knife from [his]
key chain and then [he] acted [as] if [he] had a gun or something.”
Following the detectives’ third interview with Garcia, they asked him to make
“pretext” phone calls to defendant in an effort to obtain an admission to some type of
involvement in the shootings. The calls were made over a two-day period in April 2010.
In July 2010, Detective Johnson interviewed defendant’s girlfriend, Marisa Gallegos,
who informed him that defendant had “concerns about the security of his phone . . . .”
Using a wire tap on defendant’s telephone, the detectives heard several phone
conversations between Gonzales and defendant. They determined that after Garcia would
make pretext calls to defendant, Gonzales would receive calls from defendant.
Using their drivers license pictures, Detective Johnson created “flyers” with
sketched faces of Gonzales and defendant. Police officers walked around neighborhoods
passing out the flyers and speaking with residents. They targeted neighborhoods around
the scene of the shootings. They also passed the flyers out in the territory of the Westside
Longo gang. In addition, they posted the flyers on every front door of defendant’s
apartment complex, including defendant’s front door. The flyers stimulated “phone
traffic” between Gonzales and defendant.
Detective Johnson learned from defendant’s girlfriend, Gallegos, that after the
flyers were passed out, defendant and Gallegos switched telephones. One text message
from Gallegos’s telephone that the detectives intercepted read, “Crab killa gang ain’t no
other way for this longerothang, woopty, woop, woop, weeesst brackkking blood.”
City of Long Beach Police Detective Sean Magee, who was assigned to the gang
investigations unit as a gang detective, testified as the prosecution’s gang expert. He was
familiar with the Westside Longo gang which had a gang injunction issued against its
members. The Westside Longo gang had approximately 300 members of which

8
approximately 100 members were active. The gang claimed the area of Long Beach west
of the Los Angeles riverbed. The scene of the shootings in this case was located in a
disputed territory claimed by several gangs other than the Westside Longo gang. The
Westside Longo gang utilized Oakland Raider football team colors—silver and black.
They also had distinctive hand signs.
The primary activities of the Westside Longo gang were murders, attempted
murders, manslaughters, assaults with deadly weapons, robberies, and illegal distribution
of narcotics, particularly methamphetamine. Garland White and Eric Benites were
Westside Longo gang members. White was convicted of manslaughter in 2005 and
Benites was convicted of assault with a deadly weapon in 2008.
Detective Magee knew that defendant was a Westside Longo gang member based
on his tattoo and gang graffiti recovered from his room, including graffiti that stated,
“Grouchy, Longo Beach Crab killing gang.” Defendant’s nickname was Grouchy. The
term “Crab” was a disrespectful reference to a member of a Crips gang. The Crips in
Long Beach were predominately African American or Asian.
Detective Magee also knew that Gonzales was a Westside Longo gang member
based on Gonzales’s admissions of gang membership, his tattoos, conversations with
Detective Johnson, and surveillance of Gonzales during the investigation of the shootings
in this case. His nickname was Chuyito.
Detective Magee was familiar with the facts of this case. Based on a hypothetical
question premised on facts that closely mirrored the facts of this case, he opined that the
shootings in the hypothetical case were committed for the benefit of, at the direction of,
and in association with a criminal street gang and were committed with the intent to
promote, further, and assist gang members in their criminal activities. He based his
opinion on several factors. The shooter’s use of the phrase “Where are you from” was a
challenge to enemies and the term “Fuck Crabs” was consistent with the Westside Longo
gang because they were “notoriously racist.” Also, the shootings appeared to be part of a
plan which was carried out by two Westside Longo gang members who “witnessed
[each] other” so they could “brag about [the shootings] to others” and verify that the

9
shootings did occur. The shootings heightened the perpetrators reputation as killers and
would “strike fear” in any potential witnesses. When gang members were able to instill
fear in a community, it made it easier for gang members to “run a neighborhood” and
commit crimes, such as illegal narcotics sales. By instilling such fear in a community,
the gang members had a greater ability to control the streets they claimed for their gang.

B. Defense Case
The defense called as a witness an expert on eyewitness identifications. The
expert testified about various issues associated with eyewitness identifications, including
reliability. According to the expert “sometimes [eyewitnesses] get it right and sometimes
they get it wrong.”

PROCEDURAL BACKGROUND

In an information, the Los Angeles County District Attorney charged defendant in
count 1 with the murder of Robert in violation of Penal Code section 187, subdivision
(a)8; in count 2 with the attempted murder of David in violation of sections 664 and 187,
subdivision (a); and in count 3 with the attempted murder of Gaither in violation of
sections 664 and 187, subdivision (a). The District Attorney alleged that all three counts
were committed for the benefit of, at the direction of, and in association with a criminal
street gang with the specific intent to promote, further, and assist criminal conduct by
gang members within the meaning of section 186.22, subdivision (b)(1)(C). The District
Attorney also alleged as to all three counts that defendant personally used a firearm,
personally discharged a firearm, and personally discharged a firearm causing great bodily
injury or death within the meaning of section 12022.53, subdivisions (b), (c) and (d). In
addition, the District Attorney alleged that a principal personally discharged a firearm

8
All further statutory citations are to the Penal Code, unless otherwise indicated.

10
causing great bodily injury or death within the meaning of section 12022.53, subdivisions
(d) and (e)(1).
Following trial, the jury found defendant guilty on all three counts and, as to all
three counts, found true the allegations that defendant personally discharged a firearm
causing great bodily injury or death within the meaning of section 12022.53, subdivision
(d); a principal personally discharged a firearm causing great bodily injury or death
within the meaning of section 12022.53, subdivisions (d) and (e)(1); and defendant
committed the charged crimes for the benefit of, at the direction of, and/or in association
with a criminal street gang with the specific intent to promote, further, and assist in
criminal conduct by gang members within the meaning of section 186.22, subdivision
(b)(1)(C). The trial court sentenced defendant to an aggregate sentence of 130 years to
life comprised of a term of 25 years to life on count 1, plus an additional consecutive 25
years to life term pursuant to section 12022.53, subdivision (d), for a total sentence of 50
years to life on count 1; an additional consecutive term of 15 years to life on count 2, plus
an additional consecutive term of 25 years to life pursuant to section 12022.53,
subdivision (d), for a total sentence on count 2 of 40 years to life; and an additional
consecutive term of 15 years to life on count 3, plus an additional consecutive 25 years to
life term pursuant to section 12022.53, subdivision (d), for a total sentence on count 3 of
40 years to life.

DISCUSSION

A. Substantial Evidence

1. Standard of Review
Defendant’s challenge to the sufficiency of the evidence in support of the jury’s
guilty verdicts on the first degree murder of Robert and the attempted murders of David
and Gaither is governed by the substantial evidence standard of review. “In assessing . . .
a claim [of insufficient evidence], we review the record ‘in the light most favorable to the

11
judgment below to determine whether it discloses substantial evidence—that is, evidence
which is reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.’ (People v. Johnson (1980)
26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738].) ‘The federal standard of review
is to the same effect: Under principles of federal due process, review for sufficiency of
evidence entails not the determination whether the reviewing court itself believes the
evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.
(Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)’ (People v. Rodriguez (1999) 20
Cal.4th 1, 11 [82 Cal.Rptr.2d 413, 971 P.2d 618] (Rodriguez).) [¶] Moreover, as
observed in Rodriguez: ‘The standard of review is the same in cases in which the
prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10
Cal.4th 764, 792 [42 Cal.Rptr.2d 543, 897 P.2d 481].) “‘Although it is the duty of the
jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two
interpretations, one of which suggests guilt and the other innocence [citations], it is the
jury, not the appellate court[,] which must be convinced of the defendant’s guilt beyond a
reasonable doubt. “‘If the circumstances reasonably justify the trier of fact’s findings, the
opinion of the reviewing court that the circumstances might also reasonably be
reconciled with a contrary finding does not warrant a reversal of the judgment.’”
[Citations.]’” [Citation.]’ (Rodriguez, supra, 20 Cal.4th at p. 11, italics added; see
generally People v. Clark (2011) 52 Cal.4th 856, 942-943 [131 Cal.Rptr.3d 225, 261 P.3d
243] (Clark), and cases cited.)” (People v. Watkins (2012) 55 Cal.4th 999, 1019-1020.)

2. Analysis
Defendant contends that there was insufficient evidence to support a finding that
he was present during the shooting, much less a finding that he was the shooter.
According to defendant, the eyewitness identifications of defendant as the shooter made

12
by David and Gaither were unreliable, as were Garcia’s preliminary hearing testimony
and recorded statements about his conversations with defendant and Gonzales.
Both David and Gaither, who were victims of the shootings, unequivocally
identified defendant as the shooter in open court. The jury heard their testimony and
observed their demeanor, and was therefore entitled to give it credence. David was
standing within three to four feet of the shooter and Gaither was at the top of the stairs
looking down at the shooter at the bottom of the stairs. Given the proximity of both men
to the shooter as he spoke prior to firing his handgun, they had ample opportunity to
observe the shooter, a fact on which the jury was entitled to rely in evaluating the
veracity and reliability of the witnesses’ identifications. Under the substantial evidence
standard discussed above, the identification testimony of either David or Gaither, by
itself, was sufficient to support the jury’s findings that defendant was present during the
shootings and that he was the shooter. Therefore, because there was not one, but two
eyewitness identifications, substantial evidence supported the verdicts.
In addition to the eyewitness identifications, the jury heard Garcia’s preliminary
hearing testimony which was made under oath and subject to cross-examination. The
jury also heard the recorded statement that Garcia gave to the detectives that substantially
corroborated his preliminary hearing testimony. Based on that evidence, the jury was
presented with admissions by defendant and Gonzales that defendant was the shooter.
Although any one of those admissions, by itself, would have been sufficient to support
the jury’s verdicts, when they each are considered together with the eyewitness
identifications, they clearly supported a reasonable inference that defendant was the
shooter.

13
 B. Ineffective Assistance of Counsel Based on Trial Counsel’s Failure to
Object to Certain of Gonzales’s Out-of-Court Statements to Garcia

1. Background
Prior to trial, the prosecution filed a motion to introduce at trial certain out-of-
court statements made by defendant and Gonzales. According to the motion, the night of
the shooting, defendant called Garcia and admitted he was the shooter. The next day,
defendant made more detailed statements to Garcia concerning his involvement in the
shootings. The prosecution’s motion also stated that on the evening the flyers with
sketches of defendant and Gonzales were posted, Gonzales told his girlfriend that he and
defendant did the shooting. In support of the motion, the prosecutor argued that both
defendant’s statements to Garcia and Gonzales’s statements to Hernandez were
admissible as nontestimonial admissions against penal interest.
At the hearing on the motion, the trial court and the prosecutor had the following
exchange: “The Court: So you intend to call [Gonzales’s girlfriend] Maria Hernandez.
And she is going to testify that Mr. Gonzales said that [defendant] was part of this
murder? [¶] [Prosecutor]: Correct. [¶] The Court: And that’s hearsay. [¶]
[Prosecutor]: Under Cervantes and Greenberg the People would still argue-- [¶] The
Court: But this isn’t contravention of Crawford. It is one thing for Hernandez to say
Gonzales [said] that he did it. That’s a declaration against [Gonzales’s] penal interest.
But the declaration that [defendant] did it too is not a declaration against [Gonzales’s]
penal interest. It is a separate issue. [¶] [Prosecutor]: [The] People would argue under
Greenberger and Cervantes if the declaration is against the person that not only makes
the statement and you find that he is not exposing his co-defendant in a situation like that,
to exposure, saying that I was there, he is the one that shot, it is inherently reliable. And
it should be allowed. [¶] The Court: But the statement that [defendant] did it is not a
declaration against [Gonzales’s] penal interest. [¶] [Prosecutor]: It exposes him to the
same amount of culpability as it does defendant Gonzales. [¶] The Court: But it is not a
declaration against penal interest. Gonzales saying I was there and [defendant] was too

14
and we both did it, the part that he was there and he did it, is a declaration against [his]
penal interest. But that [defendant] did it is not a declaration against [Gonzales’s] penal
interest. And Gonzales isn’t here to be cross-examined. So I don’t think it comes in. [¶]
[Prosecutor]: That’s fine. [The] People submit on that.”
Although there was discussion at the hearing about Gonzales’s statement to
Hernandez implicating defendant as the shooter, there was no discussion of Gonzales’s
similar statement to Garcia implicating defendant as the shooter, which statement was
contained in the tape-recorded interview of Garcia. At trial, the prosecution did not call
Hernandez, presumably because of the trial court’s ruling set forth above. But without
any objection from the defense, the tape recording of Garcia’s interview with the
detectives was played for the jury, including Garcia’s statement that Gonzales told him
defendant was the shooter.

2. Applicable Legal Principles
Defendant concedes that he forfeited on appeal his claim that the trial court
erroneously admitted Gonzales’s statements to Garcia implicating defendant as the
shooter by failing to object to the relevant portion of Garcia’s tape recorded interview
with the detectives. Nevertheless, defendant argues that he received ineffective
assistance of counsel based on his trial counsel’s failure to object.
“‘To establish a violation of the constitutional right to effective assistance of
counsel, a defendant must show both that his counsel’s performance was deficient when
measured against the standard of a reasonably competent attorney and that counsel’s
deficient performance resulted in prejudice to defendant in the sense that it “so
undermined the proper functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.”’ (People v. Kipp (1998) 18 Cal.4th 349, 366
[75 Cal.Rptr.2d 716, 956 P.2d 1169], quoting Strickland v. Washington [(1984)] 466 U.S.
[668,] 686.) Preliminarily, we note that rarely will an appellate record establish
ineffective assistance of counsel. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267-
268 [62 Cal.Rptr.2d 437, 933 P.2d 1134].)” (People v. Thompson (2010) 49 Cal.4th 79,

15
122.) “We have repeatedly stressed ‘that “[if] the record on appeal sheds no light on why
counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked
for an explanation and failed to provide one, or unless there simply could be no
satisfactory explanation,” the claim on appeal must be rejected.’ (People v. Wilson
(1992) 3 Cal.4th 926, 936 [13 Cal.Rptr.2d 259, 838 P.2d 1212] quoting People v. Pope
(1979) 23 Cal.3d 412, 426 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].) A claim of
ineffective assistance in such a case is more appropriately decided in a habeas corpus
proceeding. (People v. Wilson, supra, at p. 936; People v. Pope, supra, at p. 426.)”
(People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)

3. Analysis
Assuming, without deciding, that defendant’s trial counsel provided ineffective
assistance of counsel by failing to object to the relevant portion of the tape recorded
interview of Garcia, any such error was harmless. As discussed above, in addition to
Gonzales’s statement to Garcia implicating defendant as the shooter, the two surviving
shooting victims identified defendant at trial as the man who shot them. And defendant
himself admitted to Garcia in two separate conversations that he was the shooter. Garcia
testified at the preliminary hearing and was subject to cross-examination by defendant’s
counsel. Thus, notwithstanding defendant’s contentions as to Garcia’s reliability, the
additional statement by Gonzales implicating defendant as the shooter was, at best,
cumulative corroborating evidence. Therefore, trial counsel’s failure to object to that
statement cannot be said to have so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a just result. (See People v.
Thompson, supra, 49 Cal.4th at p. 122.) To the contrary, given all of the other substantial
evidence in support of the finding that defendant was the shooter, it was not reasonably
probable that defendant would have obtained a different result at trial if Gonzales’s
statement to Garcia had been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Similarly, given the nature and quality of the other evidence showing that defendant was

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the shooter, a reasonable juror could have found defendant guilty of the charged crimes
beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)

C. Jury Instructions

Defendant contends that the trial court failed to fulfill its sua sponte duty to give
appropriate jury instructions on accomplice liability under section 1111 concerning
Gonzales’s statements to Garcia implicating defendant as the shooter. But, as defendant
concedes, the California Supreme Court has held that a trial court’s failure to instruct on
accomplice liability is harmless error if there is sufficient corroborating evidence. (See
People v. Lewis (2001) 26 Cal.4th 334, 370.)
Here, as defendant also concedes, there was sufficient corroborating evidence
concerning Gonzales’s statements to Garcia implicating defendant as the shooter,
including defendant’s own admissions against interest that he was the shooter.
Notwithstanding the holding in People v. Lewis, supra, 26 Cal.4th 334, defendant urges
us to reconsider the issue and hold that the claimed instructional error was prejudicial.
Because we are bound by the holding in that Supreme Court case (Auto Equity Sales, Inc.
v. Superior Court (1962) 57 Cal.2d 450, 455), we must follow it and conclude that the
claimed failure to instruct on accomplice liability was harmless.

D. Multiple Conviction Rule and Double Jeopardy Principles

Defendant contends that the imposition of a section 12022.53, subdivision (d)
firearms enhancement on a defendant convicted of murder violates the multiple
conviction rule set forth in People v. Ortega (1998) 19 Cal.4th 686, 692-694 and People
v. Pearson (1986) 42 Cal.3d 351, 355-360, as well as federal constitutional principles of
double jeopardy. According to defendant, the factual element essential to establishing the
section 12022.53, subdivision (d) enhancement—discharge of a firearm causing death—

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is necessarily subsumed within the elemental components of murder—proximately
causing the death of the victim.
Defendant concedes, as he must, that two California Supreme Court decisions
have rejected his contention under California’s multiple conviction rule. (People v. Sloan
(2007) 42 Cal.4th 110, 115-125 and People v. Izaguirre (2007) 42 Cal.4th 126, 130-134.)
Because we are bound by those decisions under Auto Equity Sales, Inc. v. Superior Court,
supra, 57 Cal.2d at page 455, we reject defendant’s contention that his punishment
violated California’s multiple conviction rule.
Defendant also concedes that, historically, federal double jeopardy has not applied
to multiple punishment within a unitary trial, but contends that recent United States
Supreme Court decisions “suggest” that it now should. Again, because there is California
Supreme Court and United States Supreme Court authority holding that multiple criminal
punishments that arise out of a unitary criminal proceeding do not implicate federal
double jeopardy principles, People v. Sloan, supra, 42 Cal.4th at page 121, Hudson v.
United States (1997) 522 U.S. 93, 99, we are bound to follow that authority and reject
defendant’s double jeopardy contention.

DISPOSITION

The judgment of conviction is confirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

TURNER, P. J.

KUMAR, J.

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