People v. Hohner CA4/1

Filed 12/26/13 P. v. Hohner CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D062097

Plaintiff and Respondent,

v. (Super. Ct. No. SCD216918)

EDWARD DEAN HOHNER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Kerry

Wells, Judge. Affirmed.

Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Kathryn

Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.

This case arose out of the murder of two men during an illegal drug transaction at

Edward Dean Hohner's residence in the City of Oceanside. A jury convicted Hohner of
two counts of first degree murder (Pen. Code, § 187, subd. (a); victims: Rolando

Cebreros (count 1) & Francisco Villalobos (count 2)). The jury found true special

circumstance allegations that Hohner (1) committed the murders while engaged in the

commission or attempted commission of robbery (Pen. Code, § 211) within the meaning

of Penal Code section 190.2, subdivision (a)(12), and (2) committed more than one

murder (Pen. Code, § 190.2, subd. (a)(3)). The jury also found true allegations that

Hohner personally used a firearm in the commission of the murders (Pen. Code,

§ 12022.5, subd. (a)(1)). The court sentenced Hohner to two consecutive indeterminate

terms of life in prison without the possibility of parole, plus a consecutive determinate

eight-year prison term.

Hohner appeals, contending (1) the court committed prejudicial error when it

allowed Hohner's friend, Eric Hamilton, to testify Hohner had told him he (Hohner) had

killed before and had gotten away with it; (2) the court committed prejudicial error when

it allowed former FBI Special Agent James Bird to testify, during the People's rebuttal

case, about conversations he had with Silvia Camarena,1 the mother of a prosecution

witness─Arturo Camarena─who testified against Hohner after being granted use

immunity; (3) the court committed prejudicial error when it failed to sua sponte instruct

the jury to disregard testimony that Hohner was in custody; and (4) cumulative error

1 We will refer to Silvia by her first name hereafter for the sake of convenience and
clarity. We intend no disrespect.

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rendered his trial fundamentally unfair. For reasons we shall explain, these contentions

are unavailing. Accordingly, we affirm the judgment.

FACTUAL BACKGROUND2

A. The People's Case

1. The murders

On February 21, 1997, Rolando Cebreros and Francisco Villalobos were supposed

to sell 120 pounds of marijuana to Hohner at his Oceanside home. According to the

testimony of two eyewitnesses─ Hohner's friend, Camarena, and Hohner's then-

girlfriend, Cynthia Araiza, who had testified about the two murders in this matter before a

grand jury and at the preliminary hearing─Hohner did not buy the marijuana from

Cebreros and Villalobos. He shot and killed them and took the drugs.

Cebreros's wife testified that the day before Cebreros was shot, she and Cebreros

drove to Hohner's home in a white Volkswagen Jetta so that Cebreros could discuss the

details of the drug deal. Hohner agreed to pay Cebreros $50,000 for the marijuana.

However, Hohner revealed his true plan to his friend Hamilton, who testified that

Hohner told him he planned to "rip off" or rob "some guy" (Cebreros and Villalobos)

who would be "bringing up 120 pounds" of marijuana.

The day of the murders, Cebreros and Villalobos picked up the marijuana from

Don Lupe Cervantes and drove to Hohner's home. Araiza and Camarena were also at

2 As Hohner does not challenge the sufficiency of the evidence, our summary of the
facts here is brief. Additional relevant facts will be discussed, post, as needed.

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Hohner's home. At some point that evening, they were all in the granny flat behind

Hohner's house playing pool. Villalobos left to pick up some food, and Cebreros, who

called his wife to inform her he had arrived at Hohner's house, later called her again to

tell her he was about to head home with the money. Cebreros's wife testified she never

spoke to him again.

Although Araiza─a reluctant prosecution witness─repeatedly stated "I don't recall

that" when the prosecutor confronted her with her with multiple excerpts from her 2004

grand jury and 2009 preliminary hearing testimony, her prior testimony showed that, as

Cebreros and Camarena were playing pool, Hohner whispered to her to leave the room.

However, Araiza stayed in the room and Hohner then shot Cebreros in the back of the

head.

Camarena's testimony also showed that after Villalobos left to get some food,

Hohner shot the person with whom Camarena was playing pool─Cebreros─in the back of

the head and that Araiza was standing next to Hohner when Hohner shot Cebreros.

Araiza ran out of the room in shock, and Hohner and Camarena dragged

Cebreros's body to the bathroom. Camarena testified that he put the body in the shower.

Shortly thereafter, Villalobos returned to the house carrying food. Camarena

testified that Hohner and Villalobos walked into the garage, and he (Camarena) then

heard a popping noise after the garage door was closed. Camarena also testified that,

after he heard the popping sound, he waited for Hohner. Shortly thereafter, Hohner came

out of the garage and went inside the house. Eventually, Hohner and Camarena went

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inside the garage together, and Camarena saw that Villalobos was dead with a hole in his

head. Camarena indicated that he and Hohner wrapped Villalobos's head with a towel.

At trial, Araiza indicated she could not recall the testimony she gave to the grand

jury and at the preliminary hearing that she saw the man who was carrying food

(Villalobos) walk into the garage and that she then heard a gunshot.

After Hohner shot Cebreros and Villalobos, he and Camarena stashed the 120

pounds of marijuana, which was in the trunk of Cebreros's white Volkswagen Jetta, in a

safe house and then drove to Arizona to get rid of the bodies and Cebreros's car. Araiza

later told a law enforcement officer that Hohner and Camarena cleaned the garage and

granny flat with liquid chemicals and a material that looked like sawdust.

a. Hamilton's testimony about Hohner's alleged admissions

Hamilton testified that when Hohner next spoke to him on the phone, Hohner told

him the "rip-off" did not "go well," but he had gotten the marijuana. Hamilton also

testified that in later conversations, Hohner told him that "the brain comes out of the

nose" when someone is shot in the head, and Hohner indicated he had killed before and

commented that he had "gotten away with it."

2. The police investigation

A former Oceanside Police Department detective testified that when she

interviewed Hohner, he initially denied the victims were at his house on February 21,

1997. Hohner later changed that story and told the detective they were there to hang out,

but he said he had not seen them since. During subsequent police interviews, Hohner

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admitted that Cebreros and Villalobos were at his house to drop off 120 pounds of

marijuana, but he claimed they left after he paid them.

Araiza and Camarena denied knowing anything about the murders for several

years. However, in 2004 on the day she was going to testify before a grand jury, Araiza

told Special Agent Bird she had changed her life around and wanted to tell the truth about

the murders. Araiza then testified about the murders in front of the grand jury.

Camarena testified he agreed to testify against Hohner after he (Camarena) was

granted use immunity for his role in the murders.

B. The Defense

Hohner's defense was that he paid Cebreros $48,000 for the marijuana, and he did

not kill Cebreros or Villalobos. Nora Cisneros, who used to sell marijuana with Don

Lupe Cervantes, testified that she and Cervantes had provided the marijuana to the

victims in this case, but she said it was 500 pounds, not 120 pounds. The victims were

supposed to pay Cisneros and Cervantes $200,000 in cash after they delivered the

marijuana. Cisneros testified that Cebreros called her after delivering the marijuana on

February 21, 1997, and told her that he had been paid, but she never heard from either of

the victims again and never received payment for the marijuana.

Numerous character witnesses testified regarding the character or reputation for

honesty and truthfulness of prosecution witnesses Araiza, Camarena, and Hamilton. All

of the witnesses testified similarly: Araiza, Camarena, and Hamilton were liars whose

testimony could not be trusted.

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 Alfredo Jacobo, who testified in jail blues and admitted he was in custody for

importing heroin into the jail, stated he had met Camarena through drug dealings. Jacobo

testified that Camarena told him in prison in late 2007 or early 2008 that he had two

"calaveras," meaning "skulls," "hits on people," or "kills" on one occasion "under his

belt."

DISCUSSION

I. HAMILTON'S TESTIMONY REGARDING HOHNER'S ADMISSION

Hohner first contends the court committed prejudicial error when it allowed

Hamilton to testify Hohner had told him he had killed before and had gotten away with it.

We reject this contention.

A. Background

During in limine motion proceedings, defense counsel sought to exclude evidence

of statements Hohner purportedly had made to Hamilton. According to counsel's offer of

proof, Hamilton would testify that several months after the shootings while Hohner and

Hamilton were watching a movie in which someone was shot in the head, Hohner said to

Hamilton, "Oh, that's not what happens. Brains come out of the nose." Defense counsel

argued the evidence of Hohner's statements was not relevant and should be excluded

under Evidence Code section 352.

The court stated the evidence "[s]ounds relevant," and Hohner's counsel replied:

"We have no idea, you know, the context of this movie. We have no
idea if [Hohner] is talking about watching a different movie and
seeing it happen in a different movie and, oh, that's not what
happens. [¶] I mean, it could have been removed in time by two or
three years, as opposed to the following week, for example. I just

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 think that it has more prejudicial than probative value and that the
court should exclude it under [Evidence Code section] 352."

The prosecutor argued Hohner's statement was admissible as an admission. The

prosecutor then indicated Hamilton would also testify that on another occasion Hohner

told Hamilton he had shot someone in the head and had "gotten away with it." The

prosecutor argued that "those are classic admissions," and they were relevant "to show

that [Hohner] committed two murders on that particular date, and these comments were

made after that time." Hohner's counsel acknowledged he had not yet objected to the

evidence of these latter statements, but told the court, "I am objecting to those as well,

Your Honor."

1. In limine rulings

The court ruled the evidence of Hohner's statement about what happens to the

brain when someone is shot in the head was admissible as an admission by Hohner. The

court reasoned that the evidence "does have some relevance" in that "it obviously

suggests personal knowledge of the effect of shooting someone in the head, which is

what the charge is in this case."

The court also ruled the evidence of Hohner's statements about how he had shot

someone in the head and had gotten away with it was admissible for the same reasons.

2. Hamilton's testimony

After testifying that Hohner had told him of his plans to rip off 120 pounds of

marijuana and later told him that it did not go well, Hamilton testified about certain

statements (which the court had referred to as admissions) that Hohner made to him after

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Cebreros and Villalobos disappeared. Specifically, the following exchange took place

between the prosecutor and Hamilton:

"[Prosecutor:] [W]as there an occasion where you and [Hohner]
were watching a movie and someone got shot in the head?

"[Hamilton:] Yes.

"[Prosecutor:] Do you recall when that was in relation to when you
had been over there [on February 21, 1997]?

"[Hamilton:] Several months later.

"[Prosecutor:] . . . [¶] In the movie, was there something that
happened to someone as far as someone getting shot in the head?

"[Hamilton:] Yes.

"[Prosecutor:] Okay. And did [Hohner] make a comment about
that?

"[Hamilton:] Yes.

"[Prosecutor:] And what did he indicate regarding that?

"[Hamilton:] He said, it doesn't happen like that, that the brain
comes out the nose." (Italics added.) [¶] . . .

"[Prosecutor:] And was there also a different time where you and
[Hohner] were in a garage and he was talking of killing and he made
some comments?

"[Hamilton:] Yes.

"[Prosecutor:] And what was the comment he made?

"[Hamilton:] That he's done it before and gotten away with it.

"[Prosecutor:] And when was that in relation to your going over to
the scene on February 21st, '97?

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 "[Hamilton:] This was a couple of years later. Maybe three or
four." (Italics added.)

B. Applicable Legal Principles

Evidence Code section 350 provides that only relevant evidence is admissible.

Evidence Code section 210 defines relevant evidence as "evidence, including evidence

relevant to the credibility of a witness or hearsay declarant, having any tendency in

reason to prove or disprove any disputed fact that is of consequence to the determination

of the action." "'[A] trial court has broad discretion in determining the relevance of

evidence.'" (People v. Smithey (1999) 20 Cal.4th 936, 973.)

1. Evidence Code section 1101

Evidence Code section 1101, subdivision (a) "prohibits admission of evidence of a

person's character, including evidence of character in the form of specific instances of

uncharged misconduct, to prove the conduct of that person on a specified occasion."

(People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).) Thus, evidence of other crimes or

bad acts is inadmissible when it is offered to show that a defendant had the criminal

disposition or propensity to commit the crime charged. (Evid. Code, § 1101, subd. (a).)

Evidence Code section 1101, subdivision (b) "clarifies, however, that this rule

does not prohibit admission of evidence of uncharged misconduct when such evidence is

relevant to establish some fact other than the person's character or disposition." (Ewoldt,

supra, 7 Cal.4th at p. 393, fn. omitted.) Specifically, that subdivision provides that

nothing in Evidence Code section 1101 "prohibits the admission of evidence that a person

committed a crime, civil wrong, or other act when relevant to prove some fact (such as

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motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or

accident . . .) other than his or her disposition to commit such an act." (Evid. Code,

§ 1101, subd. (b).)

2. Evidence Code section 352

If the trial court determines that uncharged misconduct is admissible under

Evidence Code section 1101, subdivision (b), it must then determine whether the

probative value of the evidence is " 'substantially outweighed by the probability that its

admission [would] . . . create substantial danger of undue prejudice, of confusing the

issues, or of misleading the jury.' " (Ewoldt, supra, 7 Cal.4th at p. 404; Evid. Code,

§ 352.)

The California Supreme Court has explained that "[t]he prejudice which exclusion

of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or

damage to a defense that naturally flows from relevant, highly probative evidence. '[All]

evidence which tends to prove guilt is prejudicial or damaging to the defendant's case.

The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in

Evidence Code section 352 applies to evidence which uniquely tends to evoke an

emotional bias against the defendant as an individual and which has very little effect on

the issues. In applying [Evidence Code] section 352, "prejudicial" is not synonymous

with "damaging." ' " (People v. Karis (1988) 46 Cal.3d 612, 638, italics added.)

3. Standard of review

We review the trial court's rulings under Evidence Code sections 1101 and 352 for

an abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610, 637.) We will not

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disturb the trial court's exercise of discretion except upon a showing that it "exercised its

discretion in an arbitrary, capricious, or patently absurd manner that resulted in a

manifest miscarriage of justice." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

C. Analysis

As noted, Hohner claims the court prejudicially erred in allowing Hamilton to

testify that after Cebreros and Villalobos disappeared, Hohner had told him that he had

killed before and had gotten away with it. In support of this claim, Hohner asserts (1) his

"supposed admission to committing an unsolved murder was not relevant to any issue in

the case because the context was insufficient to infer he was admitting . . . the charged

murders because any vague admission to committing a different murder had no tendency

to prove he committed the charged murders"; (2) this evidence was barred by Evidence

Code section 1101 because it "only tended to prove [his] criminal propensity"; (3)

Hamilton's testimony should have been excluded because it "was substantially more

prejudicial than probative"; and (4) [i]ts admission violated [Hohner's] federal

constitutional right to due process and a fair trial." These assertions are unavailing.

"An admission is often compared to a confession. A confession is a declaration,

or acknowledgment sufficient to establish guilt of the crime. [Citation.] An admission is

similar to but less than a confession. It is 'an acknowledgment of some fact or

circumstance which in itself is insufficient to authorize a conviction, and which tends

only toward the proof of the ultimate fact of guilt.'" (People v. Zichko (2004) 118

Cal.App.4th 1055, 1059.)

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 Here, we conclude the court did not abuse its discretion in ruling that the evidence

of Hohner's statement about what happens to the brain when someone is shot in the head

and of his statements suggesting he had shot someone in the head and asserting he had

gotten away with it was admissible. The decision in People v. Hovarter (2008) 44

Cal.4th 983 (Hovarter) is instructive.

In Hovarter, the defendant kidnapped, raped, and killed one woman named Walsh.

Four months later he kidnapped, raped, and attempted to murder a second woman, A.L.

(Hovarter, supra, 44 Cal.4th at pp. 989-990, 992.) The defendant was convicted of the

crimes he committed against the first victim, Walsh, before he was tried for his crimes

against the second victim, A.L. (Id. at p. 992.) Prior to trial in the case charging the

defendant with the crimes committed against Walsh, the parties assumed the second

victim, A.L., would testify that the defendant had told her both that he knew what he was

doing and that he had committed a similar crime in the past. (Id. at p. 1006.) The

defendant brought a pretrial motion under Evidence Code sections 1101 and 352 to

exclude all evidence of his crimes against A.L. (Ibid.) In opposing the motion, the

People noted that a police officer, Detective Pintane, had interviewed A.L., and,

according to the detective, she had told him the defendant had told her it "wasn't the first

time he had done this." (Ibid.) The trial court denied the motion, concluding that the

evidence of the defendant's statements was admissible "as an admission by the

13
defendant," which the Court of Appeal construed as a reference to an exception to the

hearsay rule set forth in Evidence Code section 1220.3 (Hovarter, at p. 1006.)

At trial in Hovarter, the testimony of both A.L. and Detective Pintane provided

evidence of defendant's statements that linked his crimes against A.L. to those committed

against Walsh. (Hovarter, supra, 44 Cal.4th at p. 1006.) Specifically, after A.L.

described for the jury her recollections of being kidnapped, raped, shot twice in the head,

and left for dead, the prosecutor asked her, "Did the defendant ever tell you that he had

done this sort of thing before[?]" (Ibid.) A.L. replied, "Yes. He told me that he knew

what he was doing." (Ibid.) A.L. indicated she understood the defendant's statement to

mean he knew what he was doing in terms of raping her. (Ibid.) The prosecution also

presented Detective Pintane's testimony that A.L. told him "her assailant said to her that

this was not the first time that he had done this and that he knew what to do." (Id. at p.

1007.)

On appeal, the Hovarter court rejected the defendant's contention that his

statements to A.L. that he knew what he was doing and it was not his first time were too

speculative and vague to support the inference that he had previously committed a similar

set of crimes (against Walsh). (Hovarter, supra, 44 Cal.4th at p. 1009.) The Court of

Appeal concluded that, although the defendant's statements were "somewhat vague," the

3 Evidence Code section 1220 provides: "Evidence of a statement is not made
inadmissible by the hearsay rule when offered against the declarant in an action to which
he is a party in either his individual or representative capacity, regardless of whether the
statement was made in his individual or representative capacity."

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trial court "was within its discretion in concluding that they permitted the inference he

had committed a similar crime in the past." (Ibid.)

The Court of Appeal also rejected the defendant's contention that the evidence of

his statements should have been excluded on the ground it was not relevant. (Hovarter,

supra, 44 Cal.4th at p. 1009.) The Hovarter court reasoned that "defendant's comment to

A.L. that he knew what he was doing suggested he had raped and killed before" (id. at pp.

1009-1010), and, thus, "it was relevant and . . . admissible to show his state of mind."

(Id. at p. 1009, citing People v. Gurule (2002) 28 Cal.4th 557, 652 ["defendant's

statement that he had 'killed before' admissible to show his state of mind in forming the

plan to commit the crimes"].) The Court of Appeal added that "[i]ts weight was for the

jury to decide." (Hovarter, at p. 1010.)

Here, although the statements Hohner allegedly made to Hamilton─that the brain

comes out the nose when someone is shot in the head and that he had done it before and

had gotten away with it─are somewhat vague like the statements made by the Hovarter

defendant, they reasonably suggest (as the trial court found) that Hohner had personal

knowledge of the effect of shooting someone in the head. Also, Hamilton's testimony, if

credited, shows that Hohner made those statements after the victims in this case

disappeared. We conclude the evidence of Hohner's statements had some tendency in

reason to prove that he intentionally killed the victims in this case by shooting them in the

head, as Camarena testified he did. The weight of this evidence, like the weight of the

evidence of the statements of the Hovarter defendant, "was for the jury to decide"

(Hovarter, supra, 44 Cal.4th at p. 1010).

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 Hohner's contention that this evidence was barred by Evidence Code section 1101

because it "only tended to prove [his] criminal propensity" is unavailing. We have

concluded the court correctly ruled that the evidence of Hohner's statements to Hamilton

was relevant and admissible as an admission showing he committed the murders for

which he was prosecuted in this case. The record shows the evidence of Hohner's

statements was not offered to show that he committed uncharged murders and, thus, that

he had a criminal disposition to commit the charged murders. For example, during

closing arguments, the prosecutor stated that Hohner "made admissions about the

murders" (italics added) and that he told Hamilton, "I've done it before and gotten away

with it." The prosecutor's argument indicated Hohner's admissions specifically pertained

to the murders of Cebreros and Villalobos charged in this case.

We also conclude Hohner's contention that the evidence of his statements to

Hamilton should have been excluded because it "was substantially more prejudicial than

probative" is also unavailing. Hamilton's testimony about Hohner's statements was very

brief, and the jury had already heard Camarena describe the shootings, as well as Araiza's

prior testimony about the shootings to the grand jury and at the preliminary hearing. For

purposes of Evidence Code section 352, the evidence of Hohner's statements is not the

type of unduly prejudicial evidence that "uniquely tends to evoke an emotional bias

against the defendant as an individual and which has very little effect on the issues"

(People v. Karis, supra, 6 Cal.3d at p. 638). Furthermore, the record shows the court

properly instructed the jury under CALCRIM No. 358 that the jury was to decide whether

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Hohner made any of the statements, and, if he did, how much importance the statements

should be given.4

We also reject Hohner's contention that admission of the evidence of his

statements to Hamilton "violated [his] federal constitutional rights to due process and a

fair trial." This contention is based on the premise that the evidence of his statements

was "other crimes" evidence about "another unsolved murder" that was used to prove

criminal propensity in violation of Evidence Code section 1101, subdivision (a)

(discussed, ante). We have already rejected this premise. In any event, "[t]he 'routine

application of state evidentiary law does not implicate [a] defendant's constitutional

rights.'" (Hovarter, supra, 44 Cal.4th at p. 1010.)

Even if we were to conclude the court erred in admitting the evidence of Hohner's

statements to Hamilton, we would conclude any such error was harmless because Hohner

has not shown, and cannot demonstrate, it is reasonably probable the jury would have

reached a more favorable verdict if the court had excluded that evidence. (See People v.

Fuiava (2012) 53 Cal.4th 622, 671 [applying the Watson5 harmless error test to a claim

of erroneous admission of evidence].) As already discussed, two

eyewitnesses─Camarena and Araiza─testified to the details of the double murder in this

4 The court gave the following version of CALCRIM No. 358: "You have heard
evidence that [Hohner] made . . . oral or written statements before the trial. You must
decide whether [he] made any of these statements, in whole or in part. If you decide that
[Hohner] made such statements, consider the statements, along with all the other
evidence, in reaching your verdict. It is up to you to decide how much importance to
give to the statements."

5 People v. Watson (1956) 46 Cal.2d 818, 836.
17
case. Although Araiza retreated from her prior incriminating grand jury and preliminary

hearing testimony by repeatedly and evasively stating "I don't recall" when the prosecutor

confronted her with excerpts from the transcripts of her prior testimony, she was

impeached by evidence that she had reinitiated contact with Hohner immediately after her

testimony at the 2009 preliminary hearing, and she had maintained contact with him after

that time. As already discussed, the prosecution also presented evidence that Hohner

revealed to Hamilton his plan to steal 120 pounds of marijuana from the victims and that

he later told Hamilton that the rip-off did not go well.

II. ADMISSION OF (1) SPECIAL AGENT BIRD'S REBUTTAL TESTIMONY
ABOUT HIS CONVERSATIONS AND VISITS WITH SILVIA AND
(2) THE LETTER SILVIA RECEIVED

Hohner also claims the court committed prejudicial error when it (1) allowed

Special Agent James Bird to testify during the People's rebuttal case about conversations

he had with Silvia, the mother of a prosecution witness, Camarena,who testified against

Hohner after being granted use immunity; and (2) admitted into evidence a letter that

Silvia received. These claims are unavailing because Hohner has forfeited them, and

even if the claims had been preserved for appellate review, any error was harmless.

A. Background

During the defense case, Barbara Peterson, the manager of the apartment complex

where Camarena's mother, Silvia, lived, testified about Camarena's reputation in the

community that he was not trustworthy. When defense counsel asked Peterson whether

Special Agent Bird had "paid a number of visits" to the apartment complex in order to

speak to Silvia in relation to this case, she replied, "Yes."

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 Defense counsel also asked Peterson whether she had noticed any sort of "special

relationship" between Special Agent Bird and the Camarena family. Peterson indicated

that Silvia continued to call Special Agent Bird for information, even though he had

retired, and that there was a "lingering relationship."

Prior to Peterson's cross-examination, the prosecutor requested a sidebar

conference, which was not reported. Following the sidebar, Peterson testified on cross-

examination that she did not know the reason for the repeated contact between Special

Agent Bird and Silvia and that she had not heard any of their conversations.

Later, the parties revisited the issue outside the presence of the jury. The court

summarized the prior unreported sidebar discussion, indicating that the prosecutor sought

to recall Special Agent Bird to explain why he repeatedly contacted Silvia in order to

counter the suggestion that Peterson's testimony about the contacts and development of a

relationship between Special Agent Bird and Silvia showed that Special Agent Bird may

have been trying to influence Camarena's testimony. The court indicated the prosecutor

had made an offer of proof that Silvia had received what she believed to be a threatening

letter from Hohner, and Special Agent Bird contacted her to talk to her about her

concerns about that letter.

The prosecutor indicated he only sought to have Special Agent Bird testify he had

been contacting Silvia because she had received the letter before the preliminary hearing

and felt frightened. Defense counsel argued the letter was not threatening and sought to

introduce the entire letter into evidence in order to demonstrate to the jury that it was not

threatening.

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 Addressing the prosecutor, the court observed:

"[T]here is certainly a suggestion or an inference that the letter
[Silvia] received was threatening. She interpreted it as threatening.
So [defense counsel] is indicating that if you do go there, he wants to
be able to admit the entire letter. Do you have any objection to
that?"

The prosecutor replied he had no objection "if the circumstances of the letter are

put in," including the circumstances that Silvia saw it was from Hohner after she read it

and that Hohner had put someone else's name on the return envelope.

Defense counsel raised a general objection to "this whole inquiry," stating:

"Your Honor, I would object to this whole inquiry. First of all.
Silvia Camarena is not a witness in this case. Second of all, Barbara
Peterson basically just said that Agent Bird was visiting Silvia
Camarena frequently, and therefore she assumed that there was some
special relationship there. That can mean any number of things."
(Italics added.)

The court then asked Hohner's counsel:

"Why would you be asking [Peterson], then, about Agent Bird's
contact with [Silvia] Camarena" You raised the subject." (Italics
added.)

The court then observed:

"There is no other reason for that testimony regarding the contact
and/or relationship with Agent Bird other than to suggest he was
attempting to influence them, influence their testimony, and that's the
clear inference that was drawn from that. [¶] I mean, I'm just sitting
here listening just like a juror, and that's, to me, the only inference
that can be drawn from that. And if in fact that's not why [Agent
Bird] was visiting [Silvia Camarena], then that's not fair for the
prosecution not to be able to explain that." (Italics added.)

20
 1. Ruling

The court then ruled the testimony and letter were admissible. Specifically,

addressing defense counsel, the court stated:

"So I am going to let [the prosecutor] explain it. And if [the People]
put the evidence on regarding the letter and you want to put in the
full letter to show it's not threatening, I'm going to let you do that.
I'm going to let you both explain the whole circumstance, because
the jury is entitled to know."

Defense counsel replied, "That's fine."

2. Special Agent Bird's rebuttal testimony and admission of the letter into
evidence

During the People's rebuttal case, Special Agent Bird testified he had contacted

Silvia during 2008 and 2009 in order to make sure her son would be available to testify as

a witness. During one of those contacts, in March 2009, Special Agent Bird went to

Silvia's residence to deliver a subpoena requiring Camarena to testify at the preliminary

hearing in this case. Silvia handed a letter to Special Agent Bird and indicated she took it

as a threat. According to Special Agent Bird, Silvia felt threatened by the letter because

the envelope showed it was from someone at the George Bailey Detention Center and she

did not know the person whose name was on the envelope, but as she read the letter she

realized it was from Hohner. Silvia was concerned by the fact that Hohner had sent the

letter through a former prisoner who had been released from prison. She indicated

concern that this former prisoner knew where she lived and might harm her or her family

in some way.

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 Special Agent Bird explained that he later had other conversations and meetings

with Silvia regarding the letter and also to serve subpoenas on her son. When asked

whether he ever contacted Silvia "to tell her what her son should say in court," Special

Agent Bird replied that he "encouraged [Silvia] many times to have her son be truthful

with us."

On cross-examination, Special Agent Bird acknowledged that the letter Silvia had

handed to him in March 2009 was signed "El Boy," which was Hohner's nickname.

Defense counsel asked Special Agent Bird whether he would agree the language in the

letter did not convey "any implicit or indirect or direct threat of any kind." The

prosecutor objected, and the court sustained the objection "on relevance grounds."

Defense counsel then asked, "[D]o you recall any particular words that could be

perceived as threats or intimidation?" The court again sustained an objection by the

prosecutor on relevance grounds and stated: "The letter speaks for itself. The jurors are

going to get to see it."

After the last witness testified, the letter Hohner sent to Silvia was admitted into

evidence as People's exhibit 16. Defense counsel indicated he had no objection.

B. Analysis

1. Special Agent Bird's rebuttal testimony

Hohner first claims the court's admission of Special Agent Bird's rebuttal

testimony about his visits and conversations with Silvia and her statements to him about

the letter she received was prejudicial error because (1) the testimony was inadmissible

hearsay, and (2) its admission violated his federal constitutional right to confront his

22
accusers. The Attorney General argues this claim "should be deemed forfeited for failure

to properly object below." We agree.

Evidence Code section 353, subdivision (a) provides: "A verdict or finding shall

not be set aside, nor shall the judgment or decision based thereon be reversed, by reason

of the erroneous admission of evidence unless: [¶] (a) There appears of record an

objection to or a motion to exclude or to strike the evidence that was timely made and so

stated as to make clear the specific ground of the objection or motion." (Italics added.)

In accordance with this statute, the California Supreme Court has "established the

general rule that trial counsel's failure to object to claimed evidentiary error on the same

ground asserted on appeal results in a forfeiture of the issue on appeal." (People v. Dykes

(2009) 46 Cal.4th 731, 756 (Dykes); see also People v. Partida (2005) 37 Cal.4th 428,

433-434 (Partida) ["'In accordance with this statute, we have consistently held that the

"defendant's failure to make a timely and specific objection" on the ground asserted on

appeal makes that ground not cognizable.'"].)

In Partida, the Supreme Court explained the "important purposes" of the

requirement of a specific objection: "What is important is that the objection fairly inform

the trial court, as well as the party offering the evidence, of the specific reason or reasons

the objecting party believes the evidence should be excluded, so the party offering the

evidence can respond appropriately and the court can make a fully informed ruling. If the

court overrules the objection, the objecting party may argue on appeal that the evidence

should have been excluded for the reason asserted at trial, but it may not argue on appeal

that the court should have excluded the evidence for a reason different from the one

23
stated at trial. A party cannot argue the court erred in failing to conduct an analysis it

was not asked to conduct." (Partida, supra, 37 Cal.4th at pp. 434-435.)

Here, we deem forfeited Hohner's claim that the court committed prejudicial error

by admitting the challenged portions of Special Agent Bird's rebuttal testimony.

Although Hohner objected through counsel to the introduction of Special Agent Bird's

rebuttal testimony, he failed to make a specific objection on the grounds now asserted on

appeal. Specifically, defense counsel stated, "I would object to this whole inquiry." He

then stated: "First of all, Silvia Camarena is not a witness in this case. Second of all,

Barbara Peterson basically just said that Agent Bird was visiting Silvia Camarena

frequently, and therefore she assumed that there was some special relationship there.

That can mean any number of things."

By failing to make in the trial court a specific objection to the admission of

Special Agent Bird's testimony on the same grounds he now asserts on appeal, Hohner

denied the prosecution, as the party offering the testimony, the opportunity to respond

appropriately, and he also denied the trial court the opportunity to make a fully informed

ruling, thereby thwarting the "important purposes" of the statutory requirement of a

specific objection. (Partida, supra, 37 Cal.4th at pp. 434-435.)

In light of our conclusion, we need not address the Attorney General's arguments

that (1) Special Agent Bird's testimony was "classic rebuttal testimony", and that (2) the

prosecution introduced Special Agent Bird's testimony for a nonhearsay purpose because

his testimony "was not offered to prove that [Hohner] was threatening Silvia; it was

24
offered to explain the reason for the repeated contact between Agent Bird and Silvia─that

she felt threatened."

2. The letter Silvia received

Hohner also claims the court prejudicially erred by admitting into evidence the

letter Silvia received because any fear she may have felt when she received the letter was

not relevant, and "[t]he letter lacked an adequate foundation." We deem this claim

forfeited because Hohner has not shown, and cannot demonstrate, that he objected in the

trial court to the admission of this evidence on the same grounds he now asserts on

appeal. (See Evid. Code, § 353, subd. (a); Dykes, supra, 46 Cal.4th at p. 756.)

On the contrary, assuming for the sake of argument that the admission of the letter

was erroneous, the record shows Hohner invited any such error. Under the doctrine of

invited error, a party who induces the commission of an error is generally estopped from

asserting the alleged error as grounds for reversal. (People v. Mays (2007) 148

Cal.App.4th 13, 37.) The California Supreme Court has explained that "'[t]he doctrine of

invited error is designed to prevent an accused from gaining a reversal on appeal because

of an error made by the trial court at his behest. If defense counsel intentionally caused

the trial court to err, the appellant cannot be heard to complain on appeal. . . . [I]t also

must be clear that counsel acted for tactical reasons and not out of ignorance or mistake.'"

(People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.)

Here, the record shows Hohner's counsel made a tactical decision to seek

admission of the letter in question. Specifically, defense counsel argued that the letter

Silvia received was not threatening, and the entire letter should be admitted into evidence

25
in order to demonstrate to the jury that it was not threatening. When the court ruled the

letter was admissible, defense counsel responded, "That's fine." Later, when the court

admitted the letter into evidence, defense counsel indicated he had no objection. Hohner

has forfeited his claim of error.

3. Any error was harmless

Even if we were to conclude Hohner did not forfeit his claims of error, and we

were to assume the court erred, we would also conclude any such error was harmless

under any standard of prejudice because the evidence of Hohner's guilt was

overwhelming. As already discussed, the prosecution presented eyewitness testimony

establishing the details of the double murder Hohner committed in this case. The

prosecution presented evidence that Hohner revealed to Hamilton his plan to steal 120

pounds of marijuana from the victims and that he later told Hamilton that the rip-off did

not go well. The prosecution also properly presented evidence showing that, after the

murders, Hohner confided to Hamilton he had killed before and had gotten away with it.

III. CLAIM OF INSTRUCTIONAL ERROR
(HOHNER'S CUSTODY STATUS)

Hohner also claims the court committed prejudicial error when it failed to sua

sponte instruct the jury to disregard testimony that Hohner was in custody. This claim is

unavailing.

A. Background

Four witnesses─Araiza, Special Agent Andrew Pappas, Hamilton, and Special

Agent Bird─testified to the fact that Hohner was in custody, and the record shows that

26
most of the testimony about Hohner's custody status was elicited by his counsel. When

the prosecutor asked Araiza about her contact with Hohner in recent years, she briefly

testified, without a defense objection, about her visits with him in jail.

The prosecutor planned to impeach Araiza's testimony regarding the extent of her

contact with Hohner by calling Special Agent Pappas to testify about the number of times

Araiza visited Hohner and the number of phone call and e-mails exchanged between

them. Recognizing that the introduction of this evidence might emphasize for the jury

the fact that Hohner was in custody, the prosecutor brought the issue to the attention of

the court and defense counsel outside the presence of the jury before presenting Special

Agent Pappas's testimony. Defense counsel initially objected to the proposed testimony,

arguing it was irrelevant hearsay. The court asked defense counsel whether he had any

concern about the fact that Hohner was in custody and noted that Araiza had already

testified to Hohner's custody status. After observing that Hohner's custody status was

"going to come out" if a foundation was laid that Special Agent Pappas had monitored

the jail contacts, the court again asked defense counsel whether he had any concern about

that. In response, defense counsel objected "to the entire line of questioning." The court

overruled the objection and ruled the testimony was admissible. The court then asked

defense counsel had any other concerns or suggestion, and counsel replied, "No, Your

Honor."

Later, during his testimony on direct examination, Special Agent Pappas testified

to the number of times Araiza had visited or communicated with Hohner since 2009. He

27
did not state how he learned about these communications, and he did not testify that

Hohner was in custody during this time period.

On cross-examination, defense counsel elicited the fact that Hohner was in

custody. Noting that Special Agent Pappas had testified to 21 phone calls between

Araiza and Hohner, defense counsel asked him, "That's looking at phone numbers from

the jail log, correct?" Special Agent Pappas answered, "Yes."

During Hamilton's direct examination, the prosecutor asked him when he first met

Araiza. Without a defense objection, Hamilton replied that he met Araiza right after

Hohner got out of jail in 1995 or 1996.

During the defense case, defense counsel called Special Agent Bird to testify

about results of forensic tests. Defense counsel asked him, "Now, you're aware that Mr.

Hohner is in custody right now for distributing marijuana, correct?" After Special Agent

Bird indicated he was aware, defense counsel elicited testimony that Hohner had been in

custody for many years by asking, "And you're aware that he has been in custody for a

federal conspiracy to distribute marijuana conviction and he's been in custody since

November of 2003 for that offense, correct?" Special Agent Bird answered, "That's

right." Special Agent Bird then confirmed for defense counsel that, because Hohner was

in custody, law enforcement authorities always had access to Hohner and knew where to

find him.

During his closing argument, defense counsel told the jury that Hohner "is a

marijuana dealer and is serving time for that." Counsel later stated that Hohner had been

in custody since 2003 and told the jury he wanted them to know about Hohner's custody

28
status so they would not assume that he had "fled the jurisdiction knowing he was wanted

for murder and they had to pluck him out of Mexico." Hohner's counsel then reiterated,

"He has been here in the United States in continuous federal custody since 2003."

B. Applicable Legal Principles

"The trial court is obligated to instruct the jury on all general principles of law

relevant to the issues raised by the evidence, whether or not the defendant makes a formal

request." (People v. Blair (2005) 36 Cal.4th 686, 744.) We review de novo a claim of

instructional error. (People v. Posey (2004) 32 Cal.4th 193, 218.)

C. Analysis

Hohner asserts that, in light of the repeated references to his incarceration during

trial, his convictions should be reversed because the court's failure to instruct the jury on

"how to consider, if at all, [his] custodial status" undermined the presumption of

innocence and violated his federal constitutional right to due process. Hohner

acknowledges his trial counsel did not request such an instruction, stating he "realizes

that when the issue is just the defendant's custodial status, as opposed to hi[s] being

visibly shackled in front of the jury, that the trial court's instructional duty is not sua

sponte." Agreeing with the Attorney General, Hohner also acknowledges in his reply

brief that "no case has found a sua sponte duty to instruct jurors to disregard or limit their

consideration of a defendant's custodial status when the evidence only shows the

defendant is in custody and is not shackled in court."

29
 As a preliminary matter, the Attorney General asserts Hohner has forfeited his

claim under the doctrine of invited error because he "cannot complain on appeal that the

trial court erroneously admitted evidence elicited by his own attorney." (Italics added.)

As already discussed, under the doctrine of invited error a party who induces the

commission of an error is generally estopped from asserting the alleged error as grounds

for reversal. (People v. Mays, supra, 148 Cal.App.4th at p. 37.) However, "'it also must

be clear that counsel acted for tactical reasons and not out of ignorance or mistake.'"

(People v. Coffman and Marlow, supra, 34 Cal.4th at p. 49.)

Here, the record discussed, ante, establishes that most of the testimony the jury

heard about Hohner's incarceration was elicited by his trial counsel. Defense counsel's

closing argument shows he made the tactical decision to emphasize the fact that Hohner

had been in federal custody since 2003 in order to disabuse the jury of any inference he

had demonstrated consciousness of guilt by fleeing the jurisdiction after the victims were

murdered.

However, as Hohner correctly asserts, he "is not objecting to admission of the

evidence of his custodial status─he is objecting to the trial court's failure to explain its

significance to jurors." (Italics added.) Accordingly, we conclude Hohner has not

forfeited his claim of error.

With respect to the merits, we begin our analysis by noting that "the mere fact that

the jury is made aware of a defendant's custodial status does not deprive the defendant of

his constitutional rights." (People v. Valdez (2004) 32 Cal.4th 73, 121.) In Valdez , the

California Supreme Court explained that, "'in certain circumstances a jury inevitably will

30
learn a defendant is in custody for the current charged offense, for example where the

jury is presented with the testimony of a jailhouse informant.'" (Ibid., quoting People v.

Bradford (1997) 15 Cal.4th 1229, 1336.)

Here, as the Attorney General correctly asserts, "the references to [Hohner's]

custodial status . . . served valid purposes." The testimony regarding the jail e-mails and

phone calls was admitted as impeachment evidence to attack Araiza's credibility.

Defense counsel elicited most of the other references to Hohner's incarceration in order to

demonstrate the agents' access to him and show he had not fled the jurisdiction.

However, we need not decide whether the court had a duty to instruct the jury sua

sponte on how to consider Hohner's custodial status because, even if we were to assume

the court erred by failing sua sponte to give such an instruction, any such error was

harmless under any standard of prejudice. The record shows the jury was fully and

properly instructed on the presumption of innocence, as well as the prosecution's burden

of proving all elements of the charged offenses beyond a reasonable doubt. The jury was

also instructed not to let bias or prejudice influence the verdicts. In addition, the court

gave a "witness in custody" instruction with respect to witness Alfredo Jacobo, who

testified in jail attire. Although that instruction did not mention Hohner, it informed the

jury that "[t]he fact that a witness is in custody does not by itself make a witness more or

less believable." We presume the jurors understood and followed the trial court's

instructions. (People v. Hinton (2006) 37 Cal.4th 839, 871.) The jury having been given

the foregoing instructions, we conclude there is no reasonable likelihood it improperly

inferred Hohner was guilty of the charged offenses based on the references to his

31
custodial status. In any event, as we have already discussed, the evidence of his guilt was

overwhelming.

IV. CLAIM OF CUMULATIVE ERROR

Last, Hohner contends cumulative error rendered his trial fundamentally unfair.

We reject this contention.

"If none of the claimed errors were individual errors, they cannot constitute

cumulative errors that somehow affected the . . . verdict." (People v. Beeler (1995) 9

Cal.4th 953, 994, abrogation on other grounds recognized by People v. Pearson (2013)

56 Cal.4th 393, 462.)

Here, we have concluded that all of Hohner's other claims of error are unavailing.

Specifically, we have concluded the court properly admitted evidence that Hohner

admitted to a friend that he had killed before and had gotten away with it. We have

concluded Hohner forfeited his claims that the court erroneously admitted into evidence

Special Agent Bird's rebuttal testimony and the letter Silvia received; and, even if the

court erred, any such error was harmless. Last, we have concluded that, assuming

without deciding the court had a duty to instruct the jury sua sponte on how to consider

Hohner's custodial status, Hohner's claim that the court erred by failing to give such an

instruction is unavailing because any such error was harmless under any standard of

prejudice. We also conclude Hohner has not met his burden of showing the court

committed cumulative error that rendered his trial fundamentally unfair.

32
 DISPOSITION

The judgment is affirmed.

NARES, Acting P. J.

WE CONCUR:

McINTYRE, J.

O'ROURKE, J.

33