People v. Bradford CA4/1

Filed 3/4/15 P. v. Bradford 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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, D064873

Plaintiff and Respondent,

v. (Super. Ct. No. SCN313589-4)

MICHAEL BRADFORD,

Defendant and Appellant.

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

Kimberlee A. Lagotta, Judge. Affirmed.

Patrick Morgan Ford, 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, Peter Quon, Jr., and Anthony Da

Silva, Deputy Attorneys General, for Plaintiff and Respondent.
 INTRODUCTION

A jury convicted Michael Bradford of assault with a deadly weapon (Pen. Code,

§ 245, subd. (a)(1)) and robbery (Pen. Code, § 211).1 The jury also found true

allegations Bradford committed these crimes for the benefit of, at the direction of, or in

association with a criminal street gang (Pen. Code, § 186.22, subd. (b)(1).) The trial

court sentenced Bradford to 15 years in state prison.

Bradford appeals, contending we must reverse his conviction because the trial

court prejudicially erred by failing to exclude his statements to police detectives and

certain gang expert testimony. He additionally contends there was insufficient evidence

to support his conviction for assault with a deadly weapon under the natural and probable

consequences doctrine, and the accumulation of the trial court's errors deprived him of a

fair trial. We are not persuaded by Bradford's contentions and affirm the judgment.

BACKGROUND

Bradford, James Williams, and Dorian Larkin attacked an 18-year-old man,

robbed him of his backpack and cell phone, and then fled in a car driven by Bradford.2

During the robbery, the victim resisted and Williams stabbed him multiple times,

including once in his left shoulder, once in his left chest, and once in his right abdomen

below his ribcage. The latter wound lacerated the right ventricle of the victim's heart.

1 The jury could not reach a verdict on a charge for attempted murder (Pen. Code,
§§ 187, subd. (a), 664).

2 Williams pleaded guilty to attempted murder and to robbery. He also admitted the
truth of a gang enhancement allegation. Larkin pleaded guilty to attempted murder.

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 Within an hour of the stabbing, uniformed gang suppression officers encountered

Williams, Larkin, and a juvenile at a nearby home improvement store. One of the

officers patted down the men and found folding knives in Larkin's and the juvenile's

possession. A week after the stabbing a field evidence technician also found a folding

knife in a pocket behind the driver's seat of the car Bradford drove.

Police detectives subsequently located the victim's backpack in a dumpster at the

end of a dead-end road not far from the home improvement store. A district attorney's

office investigator located a folding knife, with its blade extended, in vegetation in the

same area. The knife was consistent with the type of knife that could have inflicted the

victim's abdomen injury.

Bradford told Detective Douglas Baxter he happened upon Williams, Larkin, and

the juvenile after the trio decided to rob a pedestrian. He reluctantly agreed to act as their

getaway driver. Neither he nor the juvenile participated in the robbery itself, although he

got out of the car to yell at Williams and Larkin to hurry up. As the group fled the scene,

Williams admitted stabbing the victim and threw the knife out of the car window.

Bradford denied advanced knowledge Williams was carrying a knife.

Bradford, Williams, and Larkin were all members of the East Side Crook

Mobsters Crip gang (gang). The officer who contacted Williams, Larkin and the juvenile

at the home improvement store testified gang members commonly carry concealed

weapons, particularly folding knives. Detective Ryan Davis, the prosecution's gang

expert, also testified gang members commonly carry weapons, primarily for protection.

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 Detective Davis additionally testified gang members who go out in squads to

commit robberies are commonly armed to ensure their success. Consequently, resistance

from a victim is typically met with a violent assault.

Detective Davis further testified it is important for every member of the robbery

squad to know who is carrying weapons. This was particularly true for the getaway

driver because the getaway driver is generally in charge. Moreover, because bringing a

weapon into a car puts the driver at risk, it would be viewed as disrespectful not to inform

the driver of the weapon.

In response to hypothetical questions mirroring the evidence in this case, Detective

Davis opined the robbery was committed in association with the gang and benefited both

the gang and the gang's members. In addition, he opined the gang members involved in

the robbery would know whether an accomplice was armed. He also opined it was

foreseeable the victim might try to resist and one of the gang members might try to injure

or kill the victim.

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 DISCUSSION

I

Admission of Police Interview

A

1

Approximately a month after the incident, Detectives Baxter and Davis

interviewed Bradford.3 A patrol officer, whom Bradford knew from prior contacts, was

present during the interview. Before the interview commenced, the patrol officer

collected Bradford's property and engaged in small talk with him. They talked about the

weather, Bradford's work, and Bradford's friends and family.4 Bradford asked whether

the collection of his property meant he was going to jail and the patrol officer explained it

was a routine procedure.5

Once the interview commenced, Detective Baxter immediately informed Bradford

he was under arrest and provided him with the advisements required by Miranda v.

Arizona (1966) 384 U.S. 436, 478. After listening to and confirming his understanding

3 The prosecution played a video recording of the interview for the jury.

4 The patrol officer also engaged in small talk with Bradford during breaks in the
interview.

5 Although not reflected in the interview, the patrol officer arrested Bradford in
connection with the investigation of an attempted murder and an assault with a deadly
weapon before transporting him to the police station for the interview.

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the advisements, Bradford agreed to speak with the detective. Bradford initially denied

having anything to do with the stabbing and offered alibis for the relevant time period.

Detective Baxter summarized the incident, summarized some of what Bradford's

accomplices had said about the incident, told Bradford his accomplices were blaming

him, and warned him, "If you don't tell me the truth what these dudes said is gonna get

you in the same boat as them and these guys are in f—ing serious trouble."

Bradford asked, "I'm going to jail?" Detective Baxter responded, "Yeah, jail is

like the least you have to worry about, prison, okay?" Bradford clarified, "You're saying

tonight I'm going to jail." Baxter responded, "Yeah, if you don't tell me what happened

you are and tell me the truth."

After Detective Baxter continued to implore Bradford to tell the truth, Bradford

admitted he was driving his sister's car when he came upon Williams, Larkin, and the

juvenile.6 The trio told him they were trying to rob somebody.

Detective Baxter interjected and encouraged Bradford to continue telling the truth.

Bradford said, "I just don't wanna go to jail for nothing." Baxter responded, "You're not

gonna go to jail for what they did I'm telling ya, just tell me the truth." Bradford

lamented further, "I know basically I'm gonna go to jail." Baxter responded, "I don't

know but you gotta tell me but I gotta tell you one thing if you tell me the truth about

6 While Detective Baxter was imploring Bradford to tell the truth, and in the context
of explaining why Bradford's brother decided not to lie for Bradford, Baxter mistakenly
described the incident as a "capital offense." However, there was no other suggestion
during the interview Bradford was facing capital charges, nor was there any apparent
perception by Bradford he was facing such charges.

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what happened as I know it you're not in anywhere near the amount of trouble they are

but you have to tell me what you did . . . ."

Bradford continued his narrative, stating his accomplices told him who they were

planning on robbing and, applying peer pressure, they persuaded him to be the getaway

driver. He said he stayed in the car until they returned and then dropped them off at

Larkin's girlfriend's house, and then went to his own sister's house. The juvenile called

him later and told him it was a "burnt mission," meaning they did not get anything from

the robbery. The juvenile also told him Williams had stabbed someone during the

robbery. Bradford said he left for Nevada a few days later.

Detective Baxter questioned the veracity of Bradford's claim he stayed in the car

the whole time because it was inconsistent with his accomplices' statements and

eyewitness accounts. Baxter then implored Bradford once again to tell the truth,

implying Bradford's accomplices had named Bradford as the person who actually stabbed

the victim. Baxter also told Bradford, "[I]f you don't tell me who actually stabbed this

kid, you're gonna be in the same boat as everybody else."

However, Bradford remarked he was "basically already in the same boat as

everybody else" because they were blaming the incident on him. Detective Baxter

continued to press him, advising him to tell the truth so he did not "go down for stabbing

somebody if [he] didn't do it." Bradford pointed out he was "gonna go down regardless

either, either way for something else." Baxter agreed Bradford was in trouble if Bradford

was involved in the stabbing; however, Baxter asserted there was "a gigantic difference"

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between being the stabber and being one of the other participants and implied the stabber

would be in more trouble. Baxter also insisted he was the only one who believed

Bradford was not the stabber, Bradford's friends "did [him] no good in this case," and

Bradford needed to stand up for and help himself by telling the truth.

Bradford agreed. He explained Larkin and Williams accosted the victim and, as

they tussled with him, Williams stabbed him. He denied being involved in the tussle. He

said he got out of the car and yelled at them to "come on 'cause they was taking too long."

The victim finally let go of his backpack and they left. He dropped off Williams, Larkin,

and the juvenile at an apartment complex and then went home himself. Williams threw

the knife out of the car window along the way.

After Bradford finished this account, Detective Baxter reiterated, "[Y]ou get

involved in something like this like I said earlier I can't say you're not in trouble, you are

but don't you see the tremendous difference between somebody who stabbed somebody

over nothing as compared to somebody who's yelling come on, come on let's get out of

here? . . . [¶] . . . [¶] It's a big difference, right? You get arrested but in the end there's a

trial, there's court, the lawyers talk to each other what are we gonna do, let's shake this all

together what comes out at the end?"

Detective Baxter clarified a few points with Bradford and then told him, "Okay,

um, like I said you're gonna have to go to jail tonight the uh regardless of what we

[talked] about tonight the district attorney's office wants you arrested from what your best

friends said about you, okay and running away didn't help." In addition Baxter explained,

8
"[I]n the end I don't know really what's gonna happen about this but we did clear up that

you did not stab somebody, okay? That's really, really important super important, right?"

Bradford asked what he was being charged with and Baxter responded, "Right

now conspiracy and conspiracy for robbery and conspiracy for attempted murder."

However, Baxter explained the charges could change depending on other factors.

The interview paused while Bradford took Detective Baxter and the patrol officer

to the area where he thought Williams discarded the knife. When the interview resumed,

Detective Davis took over and asked Bradford questions about Bradford's gang

involvement. Bradford said he had been a member of the gang for about three years and

his moniker was Little Savage. Williams, Larkin, and the juvenile were also members of

the gang.

Bradford showed Detective Davis the gang's hand sign and provided him with

background information about the gang, including the gang's territory, colors, name,

membership, history, structure, activities, and rivals. Bradford admitted he had to and did

"put in work" for the gang to make a name for himself.

After the interview concluded, but while he was still being recorded, Bradford

used his cell phone to call someone. Bradford informed the person he was going to jail.

He also informed the person of the charges he was facing and that, if found guilty, he

could be facing a 10- or 15-year sentence.

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 2

Before trial, Bradford moved to exclude any statements he made during the

interview, arguing the statements were the involuntary product of implied promises of

leniency. The trial court viewed the video recording of the interview and heard the

parties' arguments. The court determined from the totality of the circumstances Detective

Baxter's comments during the interview did not amount to implied promises of leniency

and Bradford's statements were voluntary.

B

" 'An involuntary confession is inadmissible under the due process clauses of both

the Fourteenth Amendment to the federal Constitution [citation] as well as article I,

sections 7 and 15 of the California Constitution [citation].' [Citation.] 'Under both state

and federal law, courts apply a "totality of circumstances" test to determine the

voluntariness of a confession.' [Citation.] '[C]oercive police activity is a necessary

predicate to the finding that a confession is not "voluntary" within the meaning of the

Due Process Clause of the Fourteenth Amendment.' [Citation.] '[T]he question in each

case is whether the defendant's will was overborne at the time he confessed. [Citations.]

If so, the confession cannot be deemed "the product of a rational intellect and a free

will." ' [Citation.] The burden is on the prosecution to show by a preponderance of the

evidence that the statement was voluntary. [Citation.] 'When, as here, the interview was

tape-recorded, the facts surrounding the giving of the statement are undisputed, and the

10
appellate court may independently review the trial court's determination of

voluntariness.' " (People v. Dowdell (2014) 227 Cal.App.4th 1388, 1400-1401.)

"In evaluating the voluntariness of a statement, no single factor is dispositive.

[Citation.] The question is whether the statement is the product of an ' "essentially free

and unconstrained choice" ' or whether the defendant's ' "will has been overborne and his

capacity for self-determination critically impaired" ' by coercion. [Citation.] Relevant

considerations are ' "the crucial element of police coercion [citation]; the length of the

interrogation [citation]; its location [citation]; its continuity" as well as "the defendant's

maturity [citation]; education [citation]; physical condition [citation]; and mental

health." ' " (People v. Williams (2010) 49 Cal.4th 405, 436.)

" 'In assessing allegedly coercive police tactics, "[t]he courts have prohibited only

those psychological ploys which, under all the circumstances, are so coercive that they

tend to produce a statement that is both involuntary and unreliable." ' " (People v.

Williams, supra, 49 Cal.4th at p. 436.) "It is well settled that law enforcement may

confront a witness with what they know. [Citation.] They may also discuss any

advantages that ' "naturally accrue" ' from making a truthful statement. [Citations.] They

may explain the possible consequences of the failure to cooperate as long as their

explanation does not amount to a threat contingent upon the witness changing her story.

[Citations.] They may even engage in deception as long as it is not of a type 'reasonably

likely to produce an untrue statement.' " (People v. Quiroz (2013) 215 Cal.App.4th 65,

79.)

11
 In this case, Bradford points to two tactics he contends caused his statements to be

involuntarily coerced. First, he contends the patrol officer impermissibly engaged in

ingratiating small talk to soften him up before Detective Baxter provided him with the

Miranda advisements and, thereby, reduced the impact of the advisements. Second, he

contends Detective Baxter impermissibly implied he would be treated more leniently if

he confessed.

Regarding the first contention, the Supreme Court has held a waiver of Miranda

rights is involuntary if it " 'result[ed] from a clever softening-up of a defendant through

disparagement of the victim and ingratiating conversation.' " (People v. Gurule (2002) 28

Cal.4th 557, 602, citing People v. Honeycutt (1977) 20 Cal.3d 150, 160-161.)

Nonetheless, the Supreme Court has also held this rule does not apply where, as here, the

police do not discuss the victim and there is no other evidence the small talk overbore the

defendant's free will. (People v. Gurule, supra, at p. 602; People v. Scott (2011) 52

Cal.4th 452, 478.)

Regarding the second contention, the Supreme Court in People v. Holloway

(2004) 33 Cal.4th 96, addressed whether "suggestions that defendant would benefit from

giving a truthful, mitigated version of the crimes . . . constituted implied threats and

promises of leniency sufficient to render the subsequent admissions involuntary." (Id.

at p. 115.) The Court concluded that, as occurred here, "suggesting that defendant might

benefit in an unspecified manner from giving a truthful, mitigated account of events"

does not cross the fine line between permissibly "factually outlining the benefits that may

12
flow from confessing" and impermissibly "impliedly promising lenient treatment in

exchange for a confession." (Id. at p. 117.) Accordingly, we conclude Bradford has not

established the trial court prejudicially erred in denying his motion to exclude his

statements to police detectives.

II

Admission of Bradford's Remarks About Prior Crimes and Custody

A

After the court denied Bradford's motion to exclude his statements to police

detectives, Bradford moved under Evidence Code section 352 to exclude specific remarks

he made during the interview about prior crimes and custody, including that he was

"locked up," "got out of jail," "got out of jail in August," "did a burglary before," "got

caught for [his] burglary," and "robbed a few houses and got caught." Bradford argued

the admission of these remarks would cause the jury to improperly perceive him to be a

repeat offender and prevent the jury from independently analyzing the charged crimes.

Conversely, the People argued the remarks were relevant to the gang enhancement

allegations because the remarks tended to prove Bradford's gang involvement and the

gang's primary activities. The People also argued the remarks showed Bradford was

criminally sophisticated and were, therefore, relevant to his credibility and whether he

was culpable for any crimes under the natural and probable consequences doctrine. The

People suggested the court give a limiting instruction directing the jury not to infer

Bradford's guilt simply because he had committed crimes in the past.

13
 The trial court found the remarks admissible under Evidence Code section 352,

noting Bradford volunteered the remarks to provide context for his statements mitigating

or distinguishing his conduct from his accomplice's conduct and they were relevant to the

gang enhancement allegations. To reduce the remarks' potential prejudice, the court

instructed the jury, "You have heard evidence of statements made by Mr. Bradford to

Detectives Baxter and Davis regarding prior criminal conduct that Mr. Bradford has

engaged in, gang affiliation or gang membership, and references to Mr. Bradford having

previously been incarcerated. You must not conclude from this evidence that

Mr. Bradford is a bad person, has a bad character, or has a disposition to commit crimes."

B

Evidence Code section 352 permits a court to "exclude evidence if its probative

value is substantially outweighed by the probability that its admission will (a) necessitate

undue consumption of time or (b) create substantial danger of undue prejudice, of

confusing the issues, or of misleading the jury." " 'The "prejudice" referred to in

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

emotional bias against 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. Bolin (1998) 18 Cal.4th 297, 320.)

14
 A trial court has broad discretion to determine both the relevance of evidence and

whether its prejudicial effect outweighs its probative value. (People v. Jones (2011) 51

Cal.4th 345, 373.) " 'A trial court's exercise of discretion in admitting or rejecting

evidence pursuant to Evidence Code section 352 "will not be disturbed on appeal unless

there is a manifest abuse of that discretion resulting in a miscarriage of justice." ' "

(People v. Thomas (2011) 51 Cal.4th 449, 485; accord, People v. Scott, supra, 52 Cal.4th

at p. 491.)

Here, Bradford made nearly all of the challenged remarks during his interview

with Detective Davis. As the trial court noted, the remarks were volunteered, not elicited,

and Bradford made them in the context of minimizing his involvement in the stabbing

and distinguishing himself from the other gang members. Considered in their context,

the remarks had direct bearing on whether the gang was a criminal street gang, whether

Bradford was affiliated with and actively participated in the gang, and whether Bradford

could reasonably foresee an assault on the victim with a deadly weapon was a natural and

probable consequence of the robbery of the victim. While the remarks were potentially

prejudicial, the trial court mitigated the prejudice with its limiting instruction, which we

presume the jury followed. (People v. Adams (2014) 60 Cal.4th 541, 578.)

Consequently, Bradford has not established the trial court manifestly abused its discretion

in determining the remarks were not substantially more prejudicial than probative.

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 III

Admission of Gang Expert Evidence

A

Before trial, Bradford moved to exclude any gang expert testimony opining a gang

member in general and a getaway driver in particular knows when a cohort is armed. The

trial court denied the motion, finding the testimony was proper and relevant.

B

We review a trial court's decision to admit expert testimony for abuse of

discretion. The trial court's exercise of its discretion "is not grounds for reversal unless

' "the court exercised its discretion in an arbitrary, capricious or patently absurd manner

that resulted in a manifest miscarriage of justice." ' " (People v. Ochoa (2001) 26 Cal.4th

398, 437-438, abrogated on another ground in People v. Prieto (2003) 30 Cal.4th 226,

263, fn. 14.)

If relevant to a case, a gang expert may testify about the culture and habits of

criminal street gangs. (People v. Gonzalez (2006) 38 Cal.4th 932, 944 (Gonzalez).) The

gang expert may also give opinions in response to hypothetical questions mirroring the

evidence in a case. (Id. at p. 946; People v. Xue Vang (2011) 52 Cal.4th 1038, 1045.)

Such opinions may encompass whether a gang member would know whether a fellow

gang member was armed because such information is " ' "sufficiently beyond common

experience that the opinion of the expert would assist the trier of fact." ' " (Gonzalez,

supra, at p. 944.) Contrary to Bradford's assertions, People v. Killebrew (2002) 103

16
Cal.App.4th 644 (Killebrew) does not bar such opinions because the Supreme Court

expressly "disapprove[d] of any interpretation of Killebrew . . . as barring, or even

limiting, the use of hypothetical questions. Even if expert testimony regarding the

defendants themselves is improper, the use of hypothetical questions is proper." (People

v. Xue Vang, supra, at p. 1048, fn. 3.) As the gang expert in this case testified in response

to hypothetical questions, and not about whether Bradford himself knew Williams was

armed, the gang expert's testimony was proper and the trial court did not abuse its

discretion by declining to exclude it.

IV

Sufficiency of Evidence to Support Conviction for Assault with a Deadly Weapon

Bradford contends there was insufficient evidence to support his conviction for

assault with a deadly weapon under the natural and probable consequences doctrine. In

evaluating a sufficiency of the evidence claim, " 'we review the whole record to

determine whether any rational trier of fact could have found the essential elements of the

crime . . . beyond a reasonable doubt. [Citation.] The record must disclose substantial

evidence to support the verdict—i.e., 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. [Citation.] In applying this test, we review the evidence in the light

most favorable to the prosecution and presume in support of the judgment the existence

of every fact the jury could reasonably have deduced from the evidence. [Citation.]

"Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the

17
reversal of a judgment, for it is the exclusive province of the trial judge or jury to

determine the credibility of a witness and the truth or falsity of the facts upon which a

determination depends. [Citation.] We resolve neither credibility issues nor evidentiary

conflicts; we look for substantial evidence. [Citation.]" [Citation.] A reversal for

insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever

is there sufficient substantial evidence to support' " the jury's verdict.' " (People v.

Manibusan (2013) 58 Cal.4th 40, 87.)

"The natural and probable consequences doctrine is based on the recognition that

those who aid and abet should be responsible for the harm they have naturally, probably,

and foreseeably put in motion." (People v. Avila (2006) 38 Cal.4th 491, 567.) Under the

doctrine, " '[a] person who knowingly aids and abets criminal conduct is guilty of not

only the intended crime [target offense] but also of any other crime the perpetrator

actually commits [nontarget offense] that is a natural and probable consequence of the

intended crime. The latter question is not whether the aider and abettor actually foresaw

the additional crime, but whether, judged objectively, it was reasonably foreseeable.

[Citation.]' [Citation.] Liability under the natural and probable consequences doctrine 'is

measured by whether a reasonable person in the defendant's position would have or

should have known that the charged offense was a reasonably foreseeable consequence of

the act aided and abetted.' " (People v. Medina (2009) 46 Cal.4th 913, 920.) " '[T]o be

18
reasonably foreseeable "[t]he consequence need not have been a strong probability; a

possible consequence which might reasonably have been contemplated is enough." ' "

(Ibid.)

Here, the evidence viewed most favorably to the judgment showed Bradford aided

and abetted a strong-arm robbery. The evidence also showed: (1) robbery victims will

sometimes resist; (2) Bradford and his accomplices were gang members, (3) gang

members commonly carry weapons, particularly folding knives, to protect themselves

and ensure successful endeavors; and (4) gang members, particularly getaway drivers,

will know whether anyone in their group is armed. This evidence was bolstered by the

discovery of knives in the getaway car and in the possession of Larkin and the juvenile.

Under such circumstances, a reasonable person in Bradford's position would have or

should have known the commission of an assault with a deadly weapon was a reasonably

foreseeable consequence of the commission of the robbery he aided and abetted. As the

applicable test is an objective one rather than a subjective one, whether Bradford actually

knew Williams had a weapon is immaterial. (People v. Montes (1999) 74 Cal.App.4th

1050, 1056.) Therefore, Bradford has not established there was insufficient evidence to

support his conviction for assault with a deadly weapon under the natural and probable

consequences doctrine.

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 V

Cumulative Impact of Claimed Errors

Bradford contends the cumulative impact of the above trial court errors deprived

him of his federal and state constitutional due process right to a fair trial. Because we

have rejected his other claims of error, we must necessarily reject this contention as well.

(People v. Williams (2013) 58 Cal.4th 197, 291.)

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

O'ROURKE, J.

AARON, J.

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