People v. Cortez

Filed 5/9/16

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )
)
Plaintiff and Respondent, )
) S211915
v. )
) Ct.App. 2/8 B233833
NORMA LILIAN CORTEZ et al. )
) Los Angeles County
Defendants and Appellants. ) Super. Ct. No. BA345971
____________________________________)

While riding in a car driven by defendant Norma Lilian Cortez, Rodrigo
Bernal fired five or six shots at 19-year-old Emanuel Z. and 16-year-old Miguel
Guzman, killing the latter. In a joint trial, a jury convicted defendant and Bernal
of premeditated murder and attempted premeditated murder. The Court of Appeal
unanimously affirmed Bernal‘s convictions. However, in a divided opinion, it
reversed defendant‘s convictions based on the following: (1) the giving of
CALCRIM No. 361, which instructed jurors that, in evaluating the evidence
against a testifying defendant, they could consider the defendant‘s failure to
explain or deny that evidence if the defendant could reasonably be expected to

SEE CONCURRING OPINION.
have done so based on what the defendant knew; (2) the admission of Bernal‘s
out-of-court statement that he and defendant went to shoot some gang members;
and (3) the prosecution‘s comments about the reasonable doubt standard during
closing argument. We granted review to consider these issues. Finding no trial
errors, we reverse the Court of Appeal‘s judgment.
I. FACTUAL BACKGROUND
On September 3, 2008, Miguel and Emanuel, who were childhood friends,
were living in a Los Angeles neighborhood near the intersection of 5th and Bonnie
Brae Streets. There was 18th Street gang graffiti in the area, and gang members
frequented the neighborhood. Miguel and Emanuel, however, were not gang
members. As they were crossing 5th Street near the corner of Bonnie Brae Street,
Emanuel heard a female ask, ― ‗Where you guys from?‘ ‖ Emanuel saw a female
driving a car with a male in the front passenger seat and another male in the back.
The driver‘s window was down. Miguel and Emanuel kept walking and did not
respond.
Emanuel heard the same female voice say, ― ‗Let them have it,‘ ‖ and saw
the car stop. The male in the front passenger seat exited the car, pulled a dark-
colored gun from his waist area, and began firing at Miguel and Emanuel.
Emanuel ran when he saw the gun. Miguel, appearing startled, raised his hands.
The man shot five or six times, killing Miguel. Miguel did not have a gun, and no
one returned fire.
Emanuel ran into a nearby building and looked out from its balcony. He
saw Miguel on the pavement below, receiving help from paramedics. He tried to
leave, but police would not let anyone exit the building. He did not immediately
speak with police because he was ―shocked‖ and afraid to talk to them. About a
week later, as he was visiting Miguel‘s family at Miguel‘s house, he unexpectedly
encountered detectives and spoke with them. Viewing a six-pack photo array, he
identified three women as resembling defendant. He identified Bernal as the

2
shooter from a six-pack photo array, and later identified him again at the
preliminary hearing. He did not identify Bernal at trial.
On the day of the shooting, David R., who also lived in the neighborhood,
heard the sound of brakes slamming and saw a light beige car stop suddenly.
Defendant was driving the car, Bernal was in the front passenger seat, and another
passenger — perhaps a child — was in the back. Defendant and Bernal were
yelling at Miguel. Because they were yelling over each other, David R. could not
understand what they were saying. Miguel may have responded, ― ‗18th Street,‘ ‖
but he continued walking. Bernal exited the car, pulled a gun from his waist area,
and started shooting. Miguel raised his hands and looked scared. After the last
shot, the beige car moved a few feet forward and then stopped when Bernal said,
― ‗Hold on, . . . hold on.‘ ‖ Bernal entered the car and said, ―Let‘s go, let‘s go.‖
The car proceeded south on Bonnie Brae Street. After calling 911 and giving the
operator a partial license plate number, David R. noticed Miguel lying on 5th
Street, not moving or breathing. Police spoke to David R. on the day of the
shooting during their canvass of the neighborhood.
Marvin B., who also lived in the neighborhood, was in his apartment when
he heard a gunshot. From his window, he saw Bernal standing beside a parked car
and shooting. He heard more shots and saw Bernal chase someone across the
street. He heard more shots after Bernal left his line of sight. Marvin B. walked
outside and saw defendant‘s car turning right from 6th Street onto Alvarado Street.
He saw the female driver‘s face. He spoke with police at the scene shortly after
the shooting and described defendant. He identified her that same day during a
field show-up.
At 4:15 p.m., responding officers found Miguel bleeding from his mouth
and not breathing. Because the shooting had occurred in 18th Street gang
territory, they went to the nearby territory of the rival Rockwood gang. There,
they saw a car matching the description — including license plate number — of
the car reportedly involved in the shooting, double-parked in the middle of the

3
street with its hazard lights flashing. They found defendant in the driver‘s seat and
arrested her. On the car‘s passenger side, they found a live round of ammunition
that matched the caliber and brand of several found at the scene of the shooting.
On September 3, 2008, during a recorded police interview the jury later
heard at trial, defendant initially gave the following account: On the day of the
shooting, Bernal asked for a ride to pick up some money. They stopped and
picked up Bernal‘s friend, who was ―very young‖ and dressed in ―gangster attire.‖
Bernal was in the front passenger seat and his friend was in the back. Bernal told
defendant to ― ‗just drive around.‘ ‖ He then instructed her, first to stop at 3rd and
Bonnie Brae Streets so he and his friend could exit, and then to continue driving.
He said he and his friend would catch up with her. As defendant drove, she heard
gunshots from two blocks away at 5th and Bonnie Brae Streets. Bernal and his
friend then reentered defendant‘s car. Defendant did not know what had happened
and she did not ask about the shots. She drove to where police later found and
arrested her, which was where Bernal and his friend had exited the car and
instructed her to wait. She had known Bernal about a year, and they were friends.
She knew he associated with the Rockwood gang, but did not believe he was a
gang member. She believed he ―always carrie[d]‖ a gun.
Later in the interview, defendant admitted that her initial statement was
untrue, and she gave the following, different account: Before the shooting, she
heard Bernal yelling, ― ‗Where you from?‘ ‖ to two young men she believed to be
gang members. The young men responded, ― ‗18th Street.‘ ‖ Bernal yelled,
― ‗Rockwood.‘ ‖ Defendant told Bernal to ― ‗[l]et it go.‘ ‖ Instead, he jumped out
of the car, and defendant then heard shots. The backseat passenger did not exit the
car. Defendant continued driving, but did not get far because of traffic. Bernal
ran and jumped back into the car. Defendant started to ―cuss[] him out.‖ He said
nothing to her except, ― ‗drive.‘ ‖ Defendant kept driving, and was scared. Bernal
told her to stop, and he then exited. He told her to drive down the block and wait
for him. She did so, stopping and activating her emergency lights.

4
 Detective John Motto investigated the shooting. He testified that six bullet
casings and one expended bullet were found at the scene, all nine-millimeter but
different brands. He also testified that officers commonly find at a single crime
scene bullet casings from multiple manufacturers that have been discharged from a
single gun.
On September 4, 2008, in a taped interview with police that was played for
the jury, Bernal‘s nephew, Oscar Tejeda, told police that Bernal had come to his
apartment and said that he ―and this woman . . . went to — we went shooting some
18s,‖ that they ―went . . . in her car,‖ and that she ―was the one driving‖ and ―he
was the one shooting.‖ Tejeda also told police he thought the woman Bernal had
identified lived in his (Tejeda‘s) apartment building. At first, Tejeda said he could
not remember the woman‘s name. Asked whether her name was ―Stephanie,‖
―Sylvia,‖ ―Nancy,‖ ―Mickey,‖ ―Martha,‖ or ―Norma,‖ he said, ―Norma. I think
it‘s Norma.‖ He then confirmed that Bernal had ―said her name.‖ The police then
asked, ―So he told you the girl he went and did the shooting with is Norma?‖
Tejeda replied, ―Yeah. She was driving in her car.‖ He also identified defendant
from a six-pack photo array and told police that Bernal was a member of the
Rockwood gang, that Bernal‘s gang moniker was ―Scooby,‖ and that defendant
socialized with Bernal and other Rockwood gang members.
At trial, Tejeda gave an entirely different account, testifying as follows:
Police came to his house with their guns drawn and handcuffed him and his sister.
Some hours later, they asked him for a gun and said they would arrest him for
aiding a murder suspect if he did not give them one. He replied that he did not
know what they were talking about. He was scared. They took him to the station.
There, he lied about what Bernal had said and felt pressured by police to do so. In
fact, Bernal had said nothing about a shooting. Tejeda nevertheless also testified
that the detective who had interviewed him had been friendly and polite. Finally,
he testified that he had seen defendant and Bernal socializing with Rockwood
gang members and that Bernal was a Rockwood gang member.

5
 Gang expert Antonio Hernandez testified that the Rockwood and 18th
Street gangs were enemies and occupied adjacent territories. Bernal was a
Rockwood member, with the monikers ―Scooby‖ and ―Woody.‖ Hernandez did
not believe defendant, Miguel, or Emanuel were gang members. Defendant and
Miguel each had a triangular, three-dot tattoo that signified the ―crazy life‖ and
suggested that its bearer was living a life of doing drugs, drinking, and committing
crimes. Both gang members and associates of gangs — those who hang out with
gang members but who have not been formally admitted into the gang —
commonly have this tattoo.
Presented a hypothetical based on the facts of this case, Hernandez opined
that the shooting was for the benefit of the Rockwood gang, the primary activities
of which were committing robberies, assaults, extortion, criminal threats, felony
vandalism, and narcotics sales. He also opined that it was not safe for gang
members casually to enter a rival gang‘s territory, and that before doing so, gang
members would ―already have a plan‖ to ―shoot or assault‖ anyone they ―possibly
see as an enemy.‖ According to Hernandez, when a gang member asks, ―Where
are you from,‖ it is a challenge that is intended to initiate a confrontation; those
uttering the statement have ―made up their mind they are going to assault th[e]
person‖ to whom they are speaking ―because they see [the person] as a possible
threat.‖
From jail, Bernal tried sending a letter to Rockwood gang member Jose
Birrueta. In it, Bernal stated defendant‘s full name and booking number, and
asked Birrueta to ―go and see her at Lynwood jail and talk to her to see what she‘s
saying with me or against me.‖ The letter continued: ―If she‘s against me write to
me and let me know what‘s up so I can make a game plan. If she‘s with me let me
know what she‘s saying and tell her to change her story because they don‘t have
anything on both of us to say that I wasn‘t with her that day to let me go. She‘s
the only one holding me back so when I get out I could help her with a lawyer.‖
Bernal asked Birrueta to ―brainwash‖ defendant, ―talk to her, convince her to say I

6
was not with her, that they scare her, the police did, and she was just nervous and
she just confused.‖ In the letter, Bernal described Emanuel Z. as ―the other fool
who‘s snitching me out,‖ and stated: ―Could you go . . . talk to him and say
different.‖ ―My nephew talked to him to say the police scare him and threatened
him. So when the detectives came he said what he say, so to say different. He
was scared, but it was a lie, what he said when he gets to court.‖
At trial, defendant testified as follows: She was not a gang member and
was not involved in any kind of gang mission on the day of the shooting. On that
day, Bernal asked for a ride so he could pick up money he had lent to someone.
She replied that she would need gas money if she gave him a ride, and he agreed.
They started driving on 6th Street near Bonnie Brae and Alvarado Streets, and
picked up Bernal‘s teenage friend, who got in the back seat. Bernal did not ask for
permission to give his friend a ride. Defendant did not ask why the friend entered
the car, but assumed it was because he owed Bernal the money. She did not care,
and did not see anything wrong in the situation. Bernal told her to continue
driving and he would direct her where to go.
As they neared the intersection of 5th and Bonnie Brae Streets, she saw two
young men yelling ― ‗18th Street‘ ‖ and making signs with their hands. No one in
her car responded. However, without saying a word, Bernal jumped out of the
still-moving car. One of the young men ―reach[ed] like a motion like to getting a
gun.‖ Defendant, who was still driving, then heard shots. Bernal then reentered
the car and said, ― ‗let‘s go.‘ ‖ He directed her to another location. She stopped as
instructed, at which point Bernal and his friend exited. She knew something bad
had happened, but did not ask what because she was scared. She activated her
hazard lights and waited for Bernal‘s return. She was a ―bundle of nerves‖ and did
not go home because she was not thinking. She was ―frozen‖ and did not know
what to do. Police arrived 10 minutes later and arrested her. She was not initially
truthful with them because she was scared.

7
 She met Bernal when she moved into her apartment, and he and some of his
friends had offered to help her carry groceries. Their relationship was platonic.
She had believed he was a nice, helpful person, and did not think he was a gang
member. However, he talked a lot about the Rockwood gang and was proud of it,
and got into fights and carried a gun at all times. She knew she lived in Rockwood
gang territory, but denied there was gang activity in her neighborhood or the
neighborhood where the shooting occurred.

II. DISCUSSION
As earlier noted, in reversing defendant‘s convictions, the Court of Appeal
majority concluded that three errors cumulatively prejudiced defendant: (1) the
giving of CALCRIM No. 361; (2) admission of Bernal‘s out-of-court statements to
Tejeda that he and defendant went to shoot members of another gang; and (3)
comments of the prosecution during closing argument that lowered the standard of
proof to convict. Below, we address each of these issues in turn.

A. The Trial Court Properly Gave CALCRIM No. 361.
During discussion of the jury instructions, the prosecution asked the court
to give CALCRIM No. 361, which addresses a testifying defendant‘s failure to
explain or deny incriminating trial evidence. The prosecution argued that the
instruction applied because defendant had inadequately explained during her
testimony why she had driven into the neighborhood where the shooting occurred,
and had failed to explain why she had stopped the car, why witnesses had heard
her screaming from the car, or why she had waited for Bernal at various times.
Defendant‘s counsel disagreed, arguing that defendant had adequately explained
her actions. The trial court responded: ―You don‘t have to argue it now. I think,
in fairness to the People, I should include it. Then you can argue that there‘s no
such evidence of that.‖ Following CALCRIM No. 361, the court later gave the
following instruction: ―If the defendant Norma Cortez failed in her testimony to

8
explain or deny evidence against her and if she could reasonably be expected to
have done so based on what she knew, you may consider her failure to explain or
deny in evaluating that evidence. Any such failure is not enough by itself to prove
guilt. The People must still prove the defendant guilty beyond a reasonable doubt.
[¶] If the defendant failed to explain or deny, it is up to you to decide the meaning
and importance of that failure.‖
The Court of Appeal concluded that the giving of this instruction was error
because defendant had not failed during her testimony to explain or deny any fact
or evidence within her personal knowledge. It reasoned: ―She generally
explained her actions the day of the shooting. She explained why she gave Bernal
a ride (to pick up some money), why she drove to the area of the shooting (she was
following Bernal‘s directions), and why she waited for Bernal after the shooting
(she was scared, nervous, and not thinking straight). [The People are] simply
incorrect when [they] assert[] that [defendant] failed to explain a number of things
within her knowledge. For instance, [the People] argue[] [defendant] did not
explain a three-hour discrepancy between the time she said the shooting occurred
(approximately 1:00 p.m.) and the time prosecution witnesses said it occurred
(approximately 4:00 p.m.). A conflict in the evidence does not equate to a failure
to explain. [Citation.] Still, when confronted with the discrepancy on cross-
examination, she explained it. She admitted that she was not ‗quite sure‘ the
shooting occurred around 1:00 p.m., and it was probable she had been mistaken
when she said that it occurred early in the day. [The People] also argue[] she did
not explain whether she thought Bernal‘s friend was dressed like a gang member.
But [she] explained the friend‘s dress, and if there was any failure to explain, it
was only because the prosecutor cut her off. . . . In yet another instance, [the
People] argue[] [defendant] failed to explain why she did not stop the car to let
Bernal in after the shooting. To the contrary, she explained she was not going to
‗stop and check‘ because gunfire had just occurred and she was scared. As a final
example, [the People] maintain[] she failed to explain how a live bullet ended up

9
on the floorboard of her car. In fact, she testified she did not put the bullet there,
she had no idea how it got there, and she did not know if it was there before
Bernal got into the car because she did not check the car before then. [She]
explained that the bullet‘s presence was not within her personal knowledge. She
need not have speculated how the bullet came to be there. [Citations.] [¶] [The
People] further assert[] that several of [defendant‘s] statements were implausible
and therefore justified the instruction. Whether [the People] found her statements
plausible is not the test, however. [Citation.]‖
The People continue to assert that the giving of the instruction was proper.
Citing People v. Belmontes (1988) 45 Cal.3d 744 (Belmontes), People v. Redmond
(1981) 29 Cal.3d 904 (Redmond), and several decisions from our Courts of
Appeal, they argue the instruction applies not only when a testifying defendant
completely fails to explain or deny incriminating trial evidence, but also when the
defendant‘s testimony ―contains logical gaps,‖ ―creat[es] ‗crucial points of
conflict‘ ‖ with other trial evidence, or is otherwise ―bizarre,‖ ―implausible,‖ or
―nonresponsive.‖ Such testimony, the People argue, is ―inherently a failure to
explain or deny facts,‖ is ―the functional equivalent of no explanation at all,‖ and
―amounts to a failure to explain or deny evidence.‖ Under these principles,
because defendant‘s testimony ―was riddled with implausible statements and
logical gaps, and she either did not directly answer or gave vague responses to
several of the prosecutor‘s questions,‖ the trial court properly gave the instruction.
Defendant, on the other hand, continues to assert that the trial court erred.
Citing other decisions from our Courts of Appeal and our decision in People v.
Saddler (1979) 24 Cal.3d 671 (Saddler), she argues the instruction applies ―only
where the defendant completely fails to explain a specific, significant piece of
evidence,‖ and ―is not justified merely because a defendant‘s explanation conflicts
with other evidence, or because the jury may ultimately disbelieve the defendant‘s
testimony.‖ In her view, decisions indicating that the instruction applies when the
defendant‘s testimony is ―bizarre‖ or ―implausible‖ use those terms not ―in the

10
sense‖ that the testimony is not ―believable‖ or ―represents an arguably less likely
interpretation of the evidence,‖ but ―in the sense‖ that it ―fail[s] to account for
indisputable physical evidence or fail[s] to describe what happened during long
periods of time — in other words, [it] fail[s] to explain the evidence.‖ Because,
under these principles, she ―did not fail to explain or deny evidence against her,‖
the trial court should not have given the instruction.
These divergent views are understandable under existing case law. In
Saddler, supra, 24 Cal.3d at page 677, we held that the trial court had erred in
giving the following instruction: ― ‗If you find that [the defendant] failed to
explain or deny any evidence or facts against him which he can reasonably be
expected to deny or explain because of facts within his knowledge, you may take
that failure into consideration as tending to indicate the truth of such evidence and
as indicating that among the inferences that may be reasonably drawn therefrom
those unfavorable to the defendant are the more probable.‘ ‖ (Fn. omitted.)
―Under the instruction,‖ we first explained, ―inferences are permissible only if the
jury finds that [the] defendant failed to explain or deny facts or evidence that he
could be reasonably expected to explain or deny.‖ (Id. at p. 680, italics omitted.)
The instruction was unwarranted, we continued, because ―[t]here [were] no facts
or evidence in the prosecution‘s case within [the defendant‘s] knowledge which he
did not explain or deny. There is no indication that he failed to disclose any facts
within his knowledge that would have shed further light on the robbery. There
were contradictions between [his] testimony and that of the prosecution witnesses,
but a contradiction is not a failure to explain or deny. Thus, [the defendant‘s]
testimony that he sometimes smoked Kool cigarettes if offered to him but never
‗requested‘ them and [a police officer‘s] testimony that on occasion [the
defendant] requested a Kool cigarette from him establishes a clear conflict in the
evidence, but it does not constitute, as the People suggest, a failure to explain or
deny.‖ (Id. at pp. 682-683, italics added, fn. omitted; see People v, Marks (1988)
45 Cal.3d 1335, 1346 [finding ―persuasive‖ the defendant‘s contention that ―he

11
did not fail to explain or to deny any important evidence against him‖ where ―he
testified extensively to a version of the events that contradicted the prosecution‘s
case in all important respects‖].)
Citing Saddler, a number of Courts of Appeal have stated that ―a
contradiction arising between [a defendant‘s] testimony and that of a prosecution
witness does not constitute a failure to explain or deny‖ that justifies giving the
instruction. (People v. Ellers (1980) 108 Cal.App.3d 943, 955; see People v.
Lamer (2003) 110 Cal.App.4th 1463, 1469; People v. Kondor (1988) 200
Cal.App.3d 52, 57; People v. Mask (1986) 188 Cal.App.3d 450, 455 (Mask);
People v. Roehler (1985) 167 Cal.App.3d 353, 393, 404.) Based on this principle,
some of these courts have also rejected the view that the instruction is warranted
where the defendant‘s testimony is ―so improbable it amount[s] to no explanation
at all.‖ (Kondor, at p. 57.) In the view of these courts, the instruction ―is
unwarranted when a defendant explains or denies matters within his or her
knowledge, no matter how improbable that explanation may appear.‖ (Ibid.; see
Lamer, at p. 1469 [quoting Kondor].)
On the other hand, in Belmontes, supra, 45 Cal.3d at page 784, we held that
the instruction had properly been given at trial, explaining: ―There were . . .
crucial points of conflict between [the] defendant‘s extrajudicial statements and
trial testimony on the one hand, and the physical evidence and testimony of
witnesses on the other. . . . [T]hese . . . conflicts were hardly ‗tangential, collateral
and of little importance.‘ ‗[I]f the defendant tenders an explanation which, while
superficially accounting for his activities, nevertheless seems bizarre or
implausible, the inquiry whether he reasonably should have known about
circumstances claimed to be outside his knowledge is a credibility question for
resolution by the jury [citations].‘ (People v. Mask[, supra,] 188 Cal.App.3d [at p.
455].)‖ In Redmond, supra, 29 Cal.3d at page 911, the other decision on which
the People rely, we held that the giving of the instruction was justified by ―[the]
defendant‘s delay for two months in disclosing the location of the knife‖ used in

12
the crime, ―his failure to summon an ambulance or assist or transport [the victim]
for medical assistance, and the variance between the description of [the victim‘s]
wound as ‗downward and inward‘ and defendant‘s version of an ‗upward‘ thrust
caused by [the victim‘s] fall on the knife.‖ ―It is entirely proper,‖ we explained,
―for a jury, during its deliberations, to consider logical gaps in the defense case,
and the jury is reminded of this fact by the instruction at issue.‖ (Ibid.)
To resolve this apparent inconsistency in the case law, we begin with the
history of a defendant‘s right to testify in California. At common law, a criminal
defendant was ―incompetent to testify under oath in his own behalf at his trial.‖
(Ferguson v. Georgia (1961) 365 U.S. 570, 570.) In 1866, the Legislature
abolished the common law rule in California by enacting a statute providing that a
person charged with a crime ―shall, at his own request, but not otherwise, be
deemed a competent witness, the credit to be given to his testimony being left
solely to the jury, under the instructions of the Court.‖ (Stats. 1865-66, ch. 644
(DCXLIU), p. 865.) Three years later, we held that the prosecution may not
comment on a defendant‘s exercise of the option under this statute not to testify;
otherwise, by ―declining to exercise [the] privilege,‖ the defendant ―would
practically, if not theoretically, . . . furnish evidence of his guilt that might turn the
scale and convict him.‖ (People v. Tyler (1869) 36 Cal. 522, 530.) The
Legislature effectively codified this holding by enacting Penal Code former
section 13231 to provide that a defendant‘s ―neglect or refusal to [be a witness]
shall not in any manner prejudice him nor be used against him on the trial or
proceeding.‖ (1872 Pen. Code, pt. 11, tit. X, § 1323, p. 293; People v. O’Brien
(1885) 66 Cal. 602, 603.) ―[U]nder this section in general it [was] not proper for
the district attorney to comment on the effect of the failure of the defendant to
testify upon any subject connected with the trial, although he may have been a

1 All further unlabeled statutory references are to the Penal Code.

13
witness and may have testified on other subjects.‖ (People v. Mead (1904) 145
Cal. 500, 506 (Mead).)
During the same period, we explained that different rules apply when a
defendant does testify on a subject. Several of our decisions held that, under these
circumstances, the prosecution may comment on the defendant‘s failure to make
an express or explicit denial of facts shown by the prosecution‘s evidence.
(People v. Mayen (1922) 188 Cal. 237, 258 [― ‗If the defendant in a criminal
action voluntarily testifies for himself, the same rights exist in favor of the state‘s
attorney to comment upon his testimony, or his refusal to answer any proper
question, or to draw all proper inferences from his failure to testify upon any
material matter within his knowledge, as with other witnesses.‘‖]; Mead, supra,
145 Cal. at p. 507 [prosecution properly commented on testifying defendant‘s
failure to make ―express‖ or ―explicit denial‖ of circumstance, shown by
prosecution‘s evidence, that the defendant was married to the woman he allegedly
allowed to be placed in a house of prostitution]; People v. Wong Bin (1903) 139
Cal. 60, 65-66 [because the testifying defendant ―went fully into the details of the
difficulty, claiming that the killing was in self-defense,‖ the prosecution ―was
authorized in commenting upon his failure to deny certain alleged statements
testified by other witnesses to have been made by him, inconsistent with his
testimony given on the trial‖].)
In other decisions, our courts explained that, where warranted by a
defendant‘s trial testimony, a court may instruct the jury that ― ‗[a] witness who
willfully testifies falsely as to any material fact in giving his testimony is to be
distrusted in other parts of his testimony.‘ ‖ (People v. Gibson (Cal. 1917) 33
Cal.App. 459, 462.) This instruction ―submits the testimony of the defendant, who
testifie[s] in his own behalf, to the usual and general tests of credibility in common
with that of the other witnesses.‖ (Ibid.) For many years, this principle has
appeared in CALJIC section 2.21.2, which provides: ―A witness, who is willfully
false in one material part of his or her testimony, is to be distrusted in others. You

14
may reject the whole testimony of a witness who willfully has testified falsely as
to a material point, unless, from all the evidence, you believe the probability of
truth favors his or her testimony in other particulars.‖ The principle now also
appears in somewhat different form in CALCRIM No. 226, which was given in
this case and which provides in relevant part: ―If you decide that a witness
deliberately lied about something significant in this case, you should consider not
believing anything that witness says.‖ These instructions apply where there is a
―material conflict in witnesses‘ testimony‖ (People v. Allison (1989) 48 Cal.3d
879, 895-896), where there are ―inconsistencies within the testimony of a single
witness‖ (People v. Turner (1990) 50 Cal.3d 668, 699), where a witness‘s ―efforts
to explain away undisputed circumstances are inherently implausible‖ (ibid.), and
where a witness‘s testimony is ―vague and improbable‖ (People v. Murillo (1996)
47 Cal.App.4th 1104, 1107).
The legal landscape changed in 1934, when the California electorate,
through the initiative process, amended article I, former section 13 of the
California Constitution to provide: ―[I]n any criminal case, whether the defendant
testifies or not, his failure to explain or to deny by his testimony any evidence or
facts in the case against him may be commented upon by the court and by counsel,
and may be considered by the court or the jury.‖ (Cal. Const., art. I, former § 13,
as amended Nov. 6, 1934, and repealed Nov. 5, 1974, italics added; see People v.
Perry (1939) 14 Cal.2d 387, 395.) The next year, the Legislature made three
statutory changes consistent with the revised constitutional provision: (1) it
amended section 1127 to provide that, ―in any criminal case, whether the
defendant testifies or not, his failure to explain or to deny by his testimony any
evidence or facts in the case against him may be commented upon by the court‖
(Stats. 1935, ch. 718, § 2, p. 1942); (2) it amended section 1093, former
subdivision 6, to provide that the judge ―may comment on the failure of the
defendant to explain or deny by his testimony any evidence or facts in the case
against him, whether the defendant testifies or not‖ (Stats.1935, ch. 718, § 1, p.

15
1941); and (3) it amended former section 1323 to provide that ―[t]he failure of the
defendant to explain or to deny by his testimony any evidence or facts in the case
against him may be commented upon by counsel‖ (Stats.1935, ch. 718, § 3, p.
1942).
About 10 years later, in People v. Adamson (1946) 27 Cal.2d 478, 486-490
(Adamson), we held that the new state constitutional provision did not violate the
federal Constitution. ―[T]he consideration and comment‖ the provision
authorized, we explained, ―relate[d], not to the defendant‘s failure to take the
stand, but to ‗his failure to explain or to deny by his testimony any evidence or
facts in the case against him‘ whether he testifies or not.‖ (Id. at p. 488.) In this
respect, it ―ma[d]e applicable to criminal cases in which the defendant does not
testify, the established rule that the failure to produce evidence that is within the
power of a party to produce does not affect in some indefinite manner the ultimate
issues raised by the pleadings, but relates specifically to the unproduced evidence
in question by indicating that this evidence would be adverse.‖ (Ibid.) The logical
―basis‖ for this rule was ― ‗[t]he instinct of self preservation,‘ ‖ which ― ‗impels
one in peril of the penitentiary to produce whatever testimony he may have to
deliver him from such peril. . . . Whenever therefore a fact is shown [that] tends to
prove crime upon a defendant, and any explanation of such fact is in the nature of
the case peculiarly within his knowledge and reach, a failure to offer an
explanation must tend to create a belief that none exists.‘ Therefore the failure of
the defendant to deny or explain evidence presented against him, when it is in his
power to do so, may be considered by the jury as tending to indicate the truth of
such evidence, and as indicating that among the inferences that may reasonably be
drawn therefrom, those unfavorable to the defendant are the more probable.‖ (Id.
at pp. 488-489.) In other words, ―[t]he failure of the accused to testify becomes
significant because of the presence of evidence that he might ‗explain or . . . deny
by his testimony‘ (art. I, [former] § 13, Cal. Const.), for it may be inferred that if
he had an explanation he would have given it, or that if the evidence were false he

16
would have denied it. [Citations.] No such inference may be drawn, however, if it
appears from the evidence that defendant has no knowledge of the facts with
respect to which evidence has been admitted against him, for it is not within his
‗power‘ [citation] to explain or deny such evidence. [Citations.]‖ (Id. at p. 489.)
In 1965, the Legislature repealed former section 1323 as unnecessary in
light of the substantially identical constitutional provision. (Stats. 1965, ch. 299,
§ 146, p. 1369; Recommendation Proposing an Evidence Code (Jan. 1965) 7 Cal.
Law Rev. Com. Rep. (1965) p. 366.) The same year, the United States Supreme
Court held that article I, former section 13 of the California Constitution violated
the Fifth Amendment to the United States Constitution insofar as it permitted
comment on a criminal defendant‘s failure to take the stand and testify at his trial.
(Griffin v. California (1965) 380 U.S. 609, 613.) Consistent with this holding, in
1974, the part of article I, former section 13 of the California Constitution that
permitted comment on a defendant‘s failure to explain or deny incriminating trial
evidence was deleted (Strauss v. Horton (2009) 46 Cal.4th 364, 467, fn. 46), and
in 1976, the Legislature deleted the sentence in section 1093, former subdivision
6, that authorized a judge to comment on a defendant‘s failure to explain or deny
incriminating evidence (compare Stats. 1975, ch. 195, § 1, p. 568 with Stats. 1976,
ch. 488, § 1, p. 1231).
In Saddler, the defendant argued that the 1974 repeal of former article I,
section 13 of the California Constitution and the 1976 amendment to section 1093
―indicate[d] legislative disapproval of comment on a defendant‘s testimony when
he takes the stand‖ and ―invalidate[d]‖ the instruction the court had given on that
subject. (Saddler, supra, 24 Cal.3d at p. 678.) We disagreed, based largely on the
Legislature‘s failure to modify Penal Code section 1127 or Evidence Code section
413. As noted earlier, the former provides that, ―in any criminal case, whether the
defendant testifies or not, his failure to explain or to deny by his testimony any
evidence or facts in the case against him may be commented upon by the court.‖
(§1127.) The latter, which was enacted in 1965 by the same legislation that

17
repealed former section 1323 (Stats. 1965, ch. 299, § 146, p. 1369), provides that,
―[i]n determining what inferences to draw from the evidence or facts in the case
against a party, the trier of fact may consider, among other things, the party‘s
failure to explain or to deny by his testimony such evidence or facts in the case
against him, or his willful suppression of evidence relating thereto, if such be the
case.‖ (Evid. Code, § 413, as enacted by Stats. 1965, ch. 299, § 2.)
In light of this background, we hold that the instruction applies only when a
defendant completely fails to explain or deny incriminating evidence, or claims to
lack knowledge and it appears from the evidence that the defendant could
reasonably be expected to have that knowledge. The instruction acknowledges to
the jury the ―reasonable inferences that may flow from silence‖ when the
defendant ―fail[s] to explain or deny evidence against him‖ and ―the facts are
peculiarly within his knowledge.‖ (People v. Modesto (1965) 62 Cal.2d 436, 452,
italics added.) As to incriminating evidence that a testifying defendant denies or
explains, there is no silence from which an inference ―may flow.‖ (Ibid.) Even if
the defendant‘s testimony conflicts with other evidence or may be characterized as
improbable, incredible, unbelievable, or bizarre, it is not, as the People assert, ―the
functional equivalent of no explanation at all.‖ On the other hand, those
circumstances do suggest that the defendant may have ―deliberately lied about
something significant,‖ in which case a court may, as the court did here, instruct
jurors to ―consider not believing anything that witness says.‖ (CALCRIM No.
226.) Indeed, as explained above, our cases hold that this instruction, or the
CALJIC instruction on the subject (CALJIC No. 2.21.2), is warranted under the
very circumstances the People claim warrant instruction on a failure to explain or
deny, i.e., when there is a ―material conflict in witnesses‘ testimony‖ (People v.
Allison, supra, 48 Cal.3d at p. 895), when there are ―inconsistencies within the
testimony of a single witness‖ (People v. Turner, supra, 50 Cal.3d at p. 699), and
when a witness‘s ―efforts to explain away undisputed circumstances are inherently
implausible‖ (ibid.). (See People v. Lang (1989) 49 Cal.3d 991, 1024 [instruction

18
warranted by ―sharply conflicting testimony‖ of the defendant and another trial
witness]; People v. Murillo, supra, 47 Cal.App.4th at p. 1107 [―instruction on a
willfully false witness‖ was warranted by the defendant‘s ―vague and improbable‖
testimony]). These circumstances implicate a testifying defendant‘s credibility as
a witness, and thus are properly addressed by an instruction designed to apply
―neutral standards of credibility‖ to testifying defendants.2 (Turner, supra at p.
699.) By contrast, the focus of CALCRIM No. 361, as its language indicates, is
not on the defendant‘s credibility as a witness, but on the role of a testifying
defendant‘s failure to explain or deny incriminating evidence in how jurors
―evaluat[e] that evidence,‖ i.e., the evidence the defendant has failed to explain or
deny. In other words, as we have stated, a testifying defendant‘s failure to explain
or deny incriminating evidence — i.e., ―[a] defendant‘s silence‖ — cannot ―be
regarded as a confession‖ and ―does not create a presumption or warrant an
inference of guilt, but should be considered only in relation to evidence that he
fails to explain or deny.‖ (Adamson, supra, 27 Cal.2d at p. 490.)
To the extent Belmontes and Redmond may be read as indicating otherwise,
we overrule them. As explained earlier, in the former, after noting the existence of
―crucial points of conflict between‖ the defendant‘s testimony and that of other
witnesses, we stated, quoting Mask, that ― ‗[I]f the defendant tenders an
explanation which, while superficially accounting for his activities, nevertheless
seems bizarre or implausible, the inquiry whether he reasonably should have
known about circumstances claimed to be outside his knowledge is a credibility

2 Both defendant and the People state that a different instruction on false or
misleading statements — CALCRIM No. 362 — applies when the defendant‘s
testimony is implausible. However, a 2009 amendment to that instruction clarifies
that the instruction applies to false or misleading statements a defendant made
―before‖ trial, not to false or misleading trial testimony. (CALCRIM No. 362; see
People v. Beyah (2009) 170 Cal.App.4th 1241, 1248 [―We doubt that CALCRIM
No. 362 was intended to be used when the basis for an inference of consciousness
of guilt is disbelief of defendant's trial testimony . . . .‖].)

19
question for resolution by the jury [citations].‘ ‖ (Belmontes, supra, 45 Cal.3d at
p. 784.) However, in Mask, in the sentence preceding the quoted statement, the
court, citing Saddler, stated: ―[T]he mere fact that [a testifying] defendant‘s story
is contradicted by other prosecution evidence does not pave the way for giving the
instruction, because contradiction is not by itself a failure to explain or deny.
[Citations.]‖ (Mask, supra, 188 Cal.App.3d at p. 455.) Moreover, in finding that
the instruction had properly been given because the testifying defendant‘s ―story
was inherently implausible,‖ the court in Mask explained that the defendant had
failed ―to account‖ for a three-hour period. (Ibid.) Thus, properly understood,
Mask was simply a case in which the testifying defendant had failed to explain
incriminating evidence, i.e., his ―presence near the scene of the crime‖ at the time
of the crime. (Ibid.)
Mask cited two decisions as support for the statement Belmontes quoted:
People v. Roehler, supra, 167 Cal.App.3d 353 (Roehler), and People v. Haynes
(1983) 148 Cal.App.3d 1117 (Haynes). (Mask, supra, 188 Cal.App.3d at p. 455.)
In Roehler, the defendant, who was convicted of murdering his wife and stepson
while they were all boating together, testified that the boat had capsized
accidentally and that he ―simply did not know what had happened to them.‖
(Roehler, supra, at p. 393.) The defendant claimed that the trial court had erred in
giving CALJIC No. 2.62, which, like CALCRIM No. 361, addressed a testifying
defendant‘s failure to explain or deny incriminating evidence. (Roehler, at pp.
391-392.) The court first explained that ―[c]ontradictory testimony by a defendant
does not invoke the giving of [the instruction] [citation], nor does failure to recall
specific details [citation].‖ (Id. at p. 393.) It then held, however, that the
defendant‘s claim ―that he didn’t know what happened was [not] an explanation of
these events which precluded the giving of‖ the instruction. (Id. at p. 394.) It
reasoned that the defendant‘s claim not to know was ―a credibility question‖ and
that ―the state of his knowledge, what it was reasonable to expect that he would
know, given the circumstances in which he was, was within the province of the

20
jury to determine.‖ (Ibid.) Roehler is correct that a defendant‘s claimed lack of
knowledge of relevant facts or circumstances is not an explanation that renders the
instruction inapplicable where it appears from the evidence that the defendant
―could reasonably be expected to know‖ those facts or circumstances. (Adamson,
supra, 27 Cal.2d at p. 491.) In other words, as the People argue, ―the instruction is
not precluded simply because a defendant denies knowledge.‖ However, Roehler
is not persuasive authority for the broader proposition that the instruction is
warranted where the defendant does not merely claim a lack of knowledge, but
actually offers a denial or provides an explanation that may be characterized as
incredible, unbelievable, or bizarre.
Haynes is even less persuasive authority for this proposition. There, the
defendant, who had been convicted of committing various sexual offenses against
a minor at a motel, claimed on appeal that the giving of the instruction was
prejudicial error because there was no prosecution evidence he had failed to
explain or deny. (Haynes, supra, 148 Cal.App.3d at pp. 1118-1119.) In response,
the court first noted that the defendant had ―stated he ‗didn't really notice‘ that
there was a ‗big sign out in front of the motel . . . that says, ―Adult Movies,‖ ‘ nor
had he noticed that [the minor‘s] condition was such [that] she had put her
jumpsuit on inside out when she dressed prior to leaving the motel.‖ (Id. at p.
1120-1121, fn. omitted.) These statements, the court stated, constituted ―relatively
minor instances of [the defendant‘s] failure either to deny or explain some
potentially incriminating facts — unless it can be said his alleged lack of ‗notice,‘
or inability to ‗remember,‘ the fact in question constituted a ‗denial‘ or an
‗explanation‘ thereof as a matter of law.‖ (Id. at p. 1120.) The court next
expressed ―doubt‖ that the defendant‘s reply when asked why he had registered at
the motel using a false name and address — ― ‗[I]t‘s not uncommon for a person
that goes to a motel to not use his true name‘‖ — ― ‗explain[ed]‘ why the
[defendant] so chose to conduct himself on‖ the occasion in question. (Id. at p.
1121.) The court next noted that the defendant‘s version of the encounter — the

21
girl had eagerly accepted his sexual advances and he did not know her true age —
left unexplained her ―bizarre‖ behavior ―as soon as she separated from him,‖ i.e.,
she recorded the license number of his car and ―exposed‖ her family ―to the
embarrassment of reporting all the sordid details of their encounter to the police
and, later, to the world at large in a public trial.‖ (Id. at p. 1121.) The court then
continued: ―It could perhaps be argued that as stressed in the challenged
instruction itself, this might be an instance in which ‗a defendant [did] not have
the knowledge that he would need to deny or to explain‘ why anyone would
behave in so bizarre a fashion. Nonetheless, it would seem such a possibility
should be a question of fact for a jury, not one of law for a trial judge.‖ (Ibid.)
Ultimately, however, the court did not decide whether any of these ―instances‖
merely showed ―contradictions in the testimony‖ — which would not have
justified giving the instruction — or ―failures‖ of the defendant ―to explain or
deny‖ — which would have justified giving the instruction — because it found
that any error was not prejudicial. (Id. at p. 1122.) The court‘s unresolved
discussion about whether the defendant had failed to explain or deny incriminating
evidence does not constitute persuasive authority for the proposition that a bizarre
or implausible explanation justifies the giving of the instruction.3
In Redmond, the defendant argued it was error to give the instruction, not
because there was no evidentiary basis for it, but ―because at trial he was not asked
to explain or deny the adverse evidence against him.‖ (Redmond, supra, 29 Cal.3d
at p. 911.) We rejected that argument, explaining that ―[t]he scope of [the
defendant‘s] direct examination was a tactical trial choice of his counsel.‖ (Ibid.)
We then added, as earlier noted, that there was ―evidentiary support‖ in the record

3 Notably, as this discussion demonstrates, Haynes, supra, 148 Cal.App.3d at
page 1121, used the term ―bizarre‖ to characterize the victim’s behavior, not, as
Belmontes, Mask, and Roehler indicate, the defendant‘s testimony. (Belmontes,
supra, 45 Cal.3d at p. 784; Mask, supra, 188 Cal.App.3d at p. 455; Roehler, supra,
167 Cal.App.3d at p. 393.)

22
for the instruction, including the defendant‘s failure to explain why he waited ―two
months‖ before ―disclosing the location of the knife‖ used in the crime or why he
―fail[ed] to summon an ambulance or assist or transport [the victim] for medical
assistance.‖ (Ibid.) These two failures were sufficient to justify giving the
instruction. The third basis we identified — ―the variance between the description
of [the victim‘s] wound as ‗downward and inward‘ and [the] defendant‘s version
of an ‗upward‘ thrust caused by [the victim‘s] fall on the knife‖ (ibid.) — was
therefore unnecessary. Moreover, under Saddler, which Redmond failed to cite or
discuss, this ―variance‖ (Redmond, at p. 911) — i.e., this evidentiary conflict —
did not justify giving the instruction. In this respect, we disapprove People v.
Redmond, supra, 29 Cal.3d 904.
Although we reject the People‘s position regarding the circumstances that
warrant the giving of the instruction, under the preceding principles, we
nevertheless agree with the People that giving the instruction in this case was not
error. During her testimony, defendant acknowledged that, after Bernal exited her
car, she heard gunshots that sounded very close. She also testified, however, that
she did not know any of the following information: (1) ―why [Bernal] got out‖ of
the car; (2) what had happened; (3) ―where [the gunfire] was coming from‖; (4)
how a bullet ended up on the floorboard of her car; and (5) whether the shooting
―could be in regards to gang activity.‖
However, there was ample evidence that defendant ―could reasonably be
expected to know‖ these facts or circumstances. (Adamson, supra, 27 Cal.2d at p.
491.) First and foremost, in her own statement to police, which was played to the
jury as evidence, she stated the following: Bernal was an ―associate‖ of the
Rockwood gang and ―talk[ed] a lot about‖ it. As she approached the area of the
shooting, she saw ―two young gang members‖ across the street. Bernal ―yelled
out, ‗Where you from?‘ ‖ The young men responded, ― ‗18th Street.‘ ‖ Defendant
then said to Bernal, ― ‗Come on, man.‘ . . . Don‘t be stupid.‘ ‖ ― ‗Fool, stop. Stop.
Just let it go. Let‘s go.‘ ‖ Bernal ―didn‘t listen,‖ and defendant saw him ―open[]

23
the passenger door‖ and ―jump[] out of the car.‖ She heard Bernal yell,
― ‗Rockwood,‘ ‖ and ―[t]hen [she] heard the gunshots.‖ Though she did not
actually see Bernal firing, she ―assumed‖ he was firing ―[a]t those kids‖ who had
responded ― ‗18th Street.‘ ‖ ―[I]n [her] mind,‖ Bernal had ―hit them up,‖ i.e.,
―shot at those kids.‖ At that point, she realized it was a gang incident. Bernal then
―chased‖ the car and ―got in.‖ Defendant ―couldn‘t believe what [had] happened‖
and ―cussed [Bernal] out,‖ saying, ― ‗Fucking asshole, what the fuck are you
doing?‘ ‖ Bernal said, ― ‗Let‘s drop my homeboy off,‘ ‖ and told defendant to
drive to the location where they had earlier picked up his friend. A few buildings
before they reached that location, Bernal told defendant to stop and let him out,
and said, ― ‗meet me there where we picked up homeboy at.‘ ‖ Defendant replied,
― ‗Okay,‘ ‖ drove to the designated spot, stopped her car, put on her emergency
lights, and waited. Second, during her trial testimony, defendant added that,
before Bernal exited the car, the victims were ―yelling out, ‗where you from,‘ ‖
and ― ‗18th Street,‘ ‖ and were ―throwing their arms up in the air, making signs‖
and ―doing hand gestures.‖ Finally, other witnesses testified at trial that the driver
of the car slammed on the car‘s brakes and, along with the passenger, was yelling
at the victims; that a female in the car said, ― ‗where are you from‘ ‖ and ― ‗Let
them have it‘ ‖; that the passenger exited the car and started shooting from the
passenger side, either from the trunk area or from over the roof while resting his
arm and hand on it; and that after the shooting, the shooter yelled, ― ‗Hold on,‘ ‖
the driver slammed on her brakes again, the shooter jumped back in, and the car
drove away. Given this evidence, the trial court properly gave the instruction
notwithstanding defendant‘s professed lack of knowledge about certain matters.4

4 Given this conclusion, we need not examine the many failures to explain or
deny that the People assert. We note, however, that the People‘s argument, insofar
as it rests on defendant‘s failure to explain contradictory testimony or on the
implausibility of her testimony, is inconsistent with the preceding analysis.

24
 B. The Trial Court Properly Admitted Bernal’s Statement to Tejeda.
As noted above, the prosecution played at trial a tape of Tejeda‘s interview
with police. During that interview, Tejeda stated that Bernal had come to his
apartment and said that, the previous day, he ― ‗and this woman . . . went to — we
went shooting some 18s, like at some 18s.‘ ‖ Regarding defendant‘s participation,
Tejeda variously told police that Bernal had said the following: (1) we ― ‗went
there in — in her car, and . . . we went to shoot at two 18s‘ ‖; (2) the woman
― ‗was the one driving‘ ‖ and ― ‗he was the one shooting‘ ‖; (3) ― ‗he went with
some lady to go shoot somebody‘ ‖; (4) ― ‗we went shooting some — some gang
member‘ ‖; (5) ― ‗yesterday we went and we shot at two 18s‘ ‖; (6) ― ‗he went
with some — the girl, the driver was a girl. She was the one driving, this woman.
And he went with her and he was the one shooting‘ ‖; (7) ― ‗they went shooting in
a car‘ ‖; (8) he ― ‗went shooting some 18-year-old with this girl, a friend‘ ‖; (9) he
― ‗went there in — in her car, and he‘s like, and we went to shoot at two 18s‘ ‖;
(10) ― ‗we went, me and this woman, . . . we went to — we went shooting some
18s, like at some 18s‘ ‖; (11) ― ‗she came and, that woman, went in her car, and
they went to shoot at some 18s‘ ‖; (12) he ― ‗went yesterday with a woman and
shot at some 18s‘ ‖; and (13) ― ‗the girl he went and did the shooting with is
Norma.‘ ‖
Before trial, defendant requested exclusion of the tape insofar as it related
Bernal‘s statements to Tejeda, arguing in part that those statements were
inadmissible hearsay and, alternatively, should be excluded as a matter of
discretion under Evidence Code section 352 because their probative value was
―substantially outweighed by‖ their potential for ―undue prejudice.‖ The
prosecution asserted that the statements were admissible under section 1230 of the
Evidence Code, which establishes an exception to the hearsay rule for statements
against penal interest, i.e., where ―the declarant is unavailable as a witness and the
statement, when made, . . . so far subjected [the declarant] to the risk of . . .
criminal liability, . . . that a reasonable man in his position would not have made

25
the statement unless he believed it to be true.‖ In response, defendant argued that
(1) the references to her in the statements were outside of the exception because
they were not disserving of Bernal‘s penal interest, (2) Tejeda‘s reliability was
questionable because he did not and could not know the identity of the woman
Bernal had mentioned, and (3) the statements were unduly prejudicial in that they
could ―easily [be] misconstrued to implicate [her] as being somehow involved in
the planning or the underlying conduct or the planning or participation or
knowledge of the shooting.‖ The trial court ruled that the statements qualified for
the hearsay exception, that they were reliable, and that exclusion under Evidence
Code section 352 was not appropriate.
Applying the abuse of discretion standard, the Court of Appeal reversed. It
agreed that the statements were against Bernal‘s penal interest, that the ―setting‖ in
which he made them — ―a discussion in the family home between close family
members‖ — ―promoted truthfulness,‖ and that the statements ―were trustworthy
to the extent [Bernal] reported on []his own actions and thoughts.‖ However,
invoking an argument defendant had not made in either the trial court or her
appellate briefs, the court concluded that, ―[a]s against‖ defendant, the statements
―lacked a guarantee of trustworthiness.‖ It reasoned: ―The references to a woman
or lady and the phrase ‗we went‘ necessarily implied that he [Bernal] and Cortez
went to go shoot someone that day. The statements suggest Cortez knew of a plan
to commit the shooting and went along with it. Indeed, the prosecutor argued to
the jury that Bernal‘s statements were evidence Cortez knew of Bernal‘s purpose
and had the intent to assist him. The prosecutor stated: ‗And when the nephew
talked to the police about what his uncle told him, he repeatedly said that his uncle
told him we went, we went and shot at some 18[s]. That is how you know she had
the knowledge of his purpose going there and she had the intent to assist him.‘
However, Bernal could not speak from personal knowledge in describing Cortez‘s
state of mind. His statements in that respect were speculation and hence not
trustworthy.‖ Therefore, the statements should not have been admitted without

26
redacting ―[r]eferences to ‗we,‘ a lady, or a woman,‖ i.e., ―the portions that
specifically implicated‖ defendant.
We conclude that the Court of Appeal erred in finding that the testimony
was inadmissible because Bernal lacked personal knowledge of whether defendant
knew of and went along with a plan to commit the shooting. The Evidence Code
declares that ―the testimony of a witness [at trial] concerning a particular matter is
inadmissible unless [the witness] has personal knowledge of the matter.‖ (Evid.
Code, § 702, subd. (a).) California courts have extended this personal knowledge
requirement to statements of hearsay declarants. (People v. Valencia (2006) 146
Cal.App.4th 92, 103-104.) When a witness‘s personal knowledge is in question,
the trial court must make a preliminary determination of whether ―there is
evidence sufficient to sustain a finding‖ that the witness has the requisite
knowledge. (Evid. Code, § 403, subd. (a)(2).) ―Direct proof of perception, or
proof that forecloses all speculation is not required.‖ (Miller v. Keating (3rd Cir.
1985) 754 F.2d 507, 511.) The trial court may exclude testimony for lack of
personal knowledge ― ‗only if no jury could reasonably find that [the witness] has
such knowledge.‘ ‖ (People v. Anderson (2001) 25 Cal.4th 543, 573.) Thus, ―[a]
witness challenged for lack of personal knowledge must . . . be allowed to testify if
there is evidence from which a rational trier of fact could find that the witness
accurately perceived and recollected the testimonial events. Once that threshold is
passed, it is for the jury to decide whether the witness‘s perceptions and
recollections are credible. [Citation.]‖ (Id. at p. 574.) An appellate court reviews
a trial court‘s determination of this issue ―under an abuse of discretion standard.‖
(People v. Tatum (2003) 108 Cal.App.4th 288, 298, citing People v. Lucas (1995)
12 Cal.4th 415, 466.)
The record here reveals no abuse of discretion. Insofar as Bernal‘s
statements suggest that defendant knew of and went along with a plan to commit
the shooting, there was ample evidence from which a rational trier of fact could
conclude that Bernal had personal knowledge of these matters. As defendant

27
concedes, evidence other than Tejeda‘s statement ―overwhelmingly established‖
that Bernal ―rode with‖ defendant ―to the location of the shooting‖ and ―shot at
[the victims] while [defendant] drove.‖ There was also evidence of the following:
(1) Bernal and defendant were neighbors and did favors for each other; (2) after
agreeing to give Bernal a ride, defendant, who believed Bernal always carried a
gun and was an associate of the Rockwood gang, drove where Bernal instructed,
first to pick up a friend of Bernal‘s who defendant thought looked like a
―gangster,‖ and then to the location of the shooting; (2) as she approached the
victims, defendant ―slam[med]‖ on the brakes and stopped the car; (3) after the car
stopped, one of the victims — Emanuel Z. — heard a female voice ask, ― ‗Where
you guys from,‘ ‖ which is something a gang member commonly asks his or her
intended victims just before initiating a planned assault; (4) defendant grew up
around gangs and had friends and relatives in gangs; (5) Emanuel Z. then heard
the car‘s occupants yell at him and Miguel, and heard a female voice say, ― ‗Let
them have it‘ ‖; (6) Bernal then got out of the stopped car and, from the trunk area
or over the roof, started shooting at the victims; (7) as the victims fled, Bernal
chased them and continued shooting; (8) after Bernal fired the final shots,
defendant, knowing Bernal had shot at the victims, moved the car a few feet
forward and stopped near Bernal as he was trying to put the gun in his waistband
and yelling, ― ‗Hold on. Hold on‘ ‖; (9) after Bernal got in the car and yelled
― ‗Let‘s go. Let‘s go,‘ ‖ defendant drove the car away, stopped in the middle of
the street where Bernal directed her to stop and, after Bernal exited, remained in
the driver‘s seat with the hazard lights on, waiting for him to return. On this
record, a jury could reasonably conclude that the shooting was a joint, planned
undertaking of Bernal and defendant. It could also reasonably conclude that
Bernal and defendant had had conversations in order to coordinate their joint
undertaking such that Bernal had personal knowledge of whether defendant knew
of and went along with a plan to commit the shooting. Given the evidence, the
question of Bernal‘s personal knowledge about these issues was for the jury.

28
Therefore, the Court of Appeal erred in concluding that, as a matter of law,
Bernal‘s lack of personal knowledge rendered the statements inadmissible.
Defendant argues that Bernal‘s statements to Tejeda were unreliable for the
additional reason that, during his interview with police, Tejeda gave varying
accounts of Bernal‘s statements and could not remember ―exactly‖ what Bernal
had said. According to defendant, some of Tejeda‘s accounts suggest that she
knowingly participated in the shooting while others ―merely stated that Bernal
rode with [her] on his way to the shooting.‖ Because, in light of Tejeda‘s
recantation at trial, the jury had no way to determine the words Bernal used or
what he meant by them, the statements were unreliable and inadmissible.
We reject defendant‘s argument. As to hearsay statements that qualify
under the party admissions exception to the hearsay rule (Evid. Code, § 1220),
―[w]e have long recognized that . . . persons are often unable ‗ ― ‗to state the exact
language of an admission.‘ ‖ ‘ [Citations.] This recognition, however, does not
automatically render any statements of a party inadmissible . . . . ‖ (People v.
Riccardi (2012) 54 Cal.4th 758, 832.) Nor does ambiguity regarding the meaning
of a party‘s out-of-court statement automatically render the party admissions
exception inapplicable. (People v. Guerra (2006) 37 Cal.4th 1067, 1122; People
v. Kraft (2000) 23 Cal.4th 978, 1035.) The same principles logically apply to the
admissibility of a hearsay statement under the exception for statements against
penal interest. On the record here, neither Tejeda‘s inability to remember
―exactly‖ what Bernal had said, nor the ambiguity defendant alleges regarding
Bernal‘s meaning, establishes that the trial court abused its discretion in admitting
the statement.5

5 Our precedents establish that the abuse of discretion test applies in
reviewing a trial court‘s determination that the hearsay statement, as Evidence
Code section 1230 requires, ―so far subjected [the declarant] to the risk of . . .
criminal liability, . . . that a reasonable man in his position would not have made
(footnote continued on next page)

29
 Defendant next contends that ―the portions‖ of Bernal‘s statement to Tejeda
―referring to [her] were not against Bernal‘s penal interest‖ and therefore did not
qualify for the hearsay exception in Evidence Code section 1230. She argues: (1)
the exception authorizes admission of ―[o]nly those portions of [a hearsay]
statement [that] are ‗specifically disserving‘ to the [declarant‘s] interests‖; and (2)
Bernal‘s references to her fail this test because they do nothing more than indicate
that he ―was accompanied by‖ her, and ―nothing about who accompanied [him]
made him more or less culpable in the shooting.‖
For several reasons, we conclude that the trial court did not abuse its
discretion in concluding that the statements were disserving of Bernal‘s penal
interest. Initially, we disagree that Bernal‘s references to defendant indicate only
that she ―accompanied‖ Bernal. As earlier explained, Bernal‘s references to
defendant, along with the other evidence, suggested that he and defendant had
engaged in a joint, planned drive-by shooting, thus showing premeditation and
implicating him in a conspiracy to commit murder by means of a drive-by
shooting. (See People v. Cortez (1998) 18 Cal.4th 1223, 1228.) Moreover,
Bernal‘s statement that the person he went with to shoot ―some 18s‖ did the
driving provides evidence of one of the elements of a conspiracy conviction: ―the
commission of an overt act ‗by one or more of the parties to such agreement‘ in
furtherance of the conspiracy.‖ (People v. Morante (1999) 20 Cal.4th 403, 416.)

(footnote continued from previous page)

the statement unless he believed it to be true.‖ (People v. Brown (2003) 31 Cal.4th
518, 536; People v. Lawley (2002) 27 Cal.4th 102, 153-154.) Citing People v.
Cervantes (2004) 118 Cal.App.4th 162, 174-175, defendant argues for de novo
review. However, the authority Cervantes cited (ibid.) involved the separate
question of whether admission of a hearsay statement violates the confrontation
clause. (See Lilly v. Virginia (1999) 527 U.S. 116, 136-137 [(plur. opn. of
Stevens, J.)]; People v. Schmaus (2003) 109 Cal.App.4th 846, 856; People v.
Eccleston (2001) 89 Cal.App.4th 436, 445-446.)

30
In these respects, the portion of the statements referring to a criminal companion
were against Bernal‘s penal interest. (Cf. People v. Samuels (2005) 36 Cal.4th 96,
121 [declarant‘s statement that he was paid by the defendant to commit the killing
―was specifically disserving to [the declarant‘s] interests in that it intimated he had
participated in a contract killing — a particularly heinous type of murder — and in
a conspiracy to commit murder‖].)
On the specific facts of this case, we also disagree that Bernal‘s
identification by name of who accompanied him was not specifically disserving of
his interest. Our analysis begins with Williamson v. United States (1994) 512 U.S.
594, 600-601 (Williamson), where the high court held that the federal hearsay
exception for statements against penal interest does not authorize admission of
collateral, non-self-inculpatory statements, even if they are made within a broader
narrative that contains self-inculpatory statements. In disagreeing that this holding
would eviscerate the federal exception, the court explained: ―[W]hether a
statement is self-inculpatory or not can only be determined by viewing it in
context. Even statements that are on their face neutral may actually be against the
declarant‘s interest. ‗I hid the gun in Joe‘s apartment‘ may not be a confession of
a crime; but if it is likely to help the police find the murder weapon, then it is
certainly self-inculpatory. ‗Sam and I went to Joe‘s house‘ might be against the
declarant‘s interest if a reasonable person in the declarant‘s shoes would realize
that being linked to Joe and Sam would implicate the declarant in Joe and Sam‘s
conspiracy. And other statements that give the police significant details about the
crime may also, depending on the situation, be against the declarant‘s interest.
The question . . . is always whether the statement was sufficiently against the
declarant‘s penal interest ‗that a reasonable person in the declarant‘s position
would not have made the statement unless believing it to be true,‘ and this
question can only be answered in light of all the surrounding circumstances.‖ (Id.
at pp. 603-604, italics added, fn. omitted.)

31
 Here, Bernal‘s identification of defendant by name, viewed in context,
specifically disserved his penal interest in several respects. When Bernal spoke to
Tejeda, he said that, after the shooting, he ―left the car‖ and ―went in [a] building,‖
that the woman who was driving the car ―waited for him while he went in that
building,‖ and that she was ―caught‖ while she was ―in the car‖ ―[w]aiting‖ for
him ―to come back out.‖ Thus, according to Tejeda‘s statement, when Bernal said
that defendant was the one driving, he knew she and her car were already in police
custody.6 He thus also knew that, by identifying her, he was increasing the
likelihood that evidence connecting him to the shooting would be found. Indeed,
as noted above, police found on the floor of the passenger side of defendant‘s car a
live round matching the caliber and brand of several found at the scene of the
shooting. Finally, Bernal knew that ―being linked to‖ defendant ―would
implicate‖ him in a drive-by shooting for which defendant had been arrested.
(Williamson, supra, 512 U.S. at p. 603.) For these reasons, Bernal‘s identification
of defendant by name specifically disserved his penal interest. (See U.S. v. Moses
(3d Cir. 1998) 148 F.3d 277, 280-281 [―by naming [the defendant], as well as the
place where he was meeting [the defendant] to make payments, [the declarant]
provided self-inculpatory information that might have enabled the authorities to
better investigate his wrongdoing‖].)
Finally, nothing in the attendant circumstances undermines the trial court‘s
conclusion that Bernal‘s statements were truly disserving of his interests. As the
People assert, ―the portions of Bernal‘s statement that implicated [defendant] were
in no way exculpatory‖ or ―self-serving,‖ Bernal ―consistently assigned the most

6 Tejeda stated that he ―guessed‖ Bernal was referring to police when Bernal
said ― ‗they‘ ‖ caught defendant. Tejeda‘s understanding is fully supported by the
evidence, which indisputably shows that the police arrested defendant as she was
waiting in her car for Bernal to return from a building. As defendant described
Tejeda‘s statement in her briefs below, Bernal said he ― ‗watched from inside‘ ‖ a
building ― ‗as [defendant] was arrested.‘ ‖

32
blame to himself by admitting he was the shooter, and he never attempted to shift
blame to [defendant].‖ Moreover, the context in which Bernal made the
statements — a conversation with a close family member in an apartment he
frequented — does not suggest that Bernal was trying to improve his situation
with police. Indeed, as the Court of Appeal explained, the ―setting‖ for the
conversation — ―a discussion in the family home between close family
members‖ — ―promoted truthfulness.‖ Given the totality of the circumstances,
the trial court did not abuse its discretion in finding that Bernal‘s identification of
defendant ―so far subjected [Bernal] to the risk of . . . criminal liability, . . . that a
reasonable man in his position would not have made the statement unless he
believed it to be true.‖ (Evid. Code, § 1230.)
Defendant next asserts that the trial court erred in not excluding Tejeda‘s
statements under Evidence Code section 352, which provides in relevant part that
a court ―in its discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will . . . create
substantial danger of undue prejudice.‖ According to defendant, the statements
had only ―minimal probative value‖ because they established only that ―Bernal
rode with [her] to the location of the shooting,‖ a fact that was ―overwhelmingly
established by other evidence.‖ They were unduly prejudicial, she continues,
because they ―could be misconstrued as stating [that she] shared Bernal‘s
purpose.‖ Indeed, defendant asserts, ―[t]he prosecutor used the statements for
precisely [this] prejudicial effect,‖ arguing to the jury that ―Bernal, by saying ‗we
went,‘ told Tejeda [that defendant] shared his purpose.‖ Because the statements‘
―minimal probative value was outweighed by the potential for undue prejudice,‖
the trial court should have excluded them.
Defendant‘s argument fails because it rests on a mistaken understanding of
the term ―prejudice‖ in Evidence Code section 352. For purposes of that section,
―prejudice‖ does not mean damage to a party‘s case that flows from relevant,
probative evidence. Rather, it means the tendency of evidence to evoke an

33
emotional bias against a party because of extraneous factors unrelated to the
issues. (People v. Doolin (2009) 45 Cal.4th 390, 439.) Thus, evidence is subject
to exclusion under Evidence Code section 352 on the basis of prejudice only
― ‗when it is of such nature as to inflame the emotions of the jury, motivating them
to use the information, not to logically evaluate the point upon which it is relevant,
but to reward or punish one side because of the jurors‘ emotional reaction. In such
a circumstance, the evidence is unduly prejudicial because of the substantial
likelihood the jury will use it for an illegitimate purpose.‘ [Citation.]‖ (People v.
Doolin, at p. 439.) As explained above, defendant‘s claim of prejudice rests only
on the potential of Tejeda‘s statements to show that she shared Bernal‘s purpose,
i.e., the damage to her defense that flowed from those statements as relevant,
probative evidence. She identifies no sense in which the statements would tend to
inflame the jurors‘ emotions or cause them to punish her because of an emotional
reaction. Her claim under Evidence Code section 352 therefore fails.
We also reject defendant‘s final attack on the trial court‘s ruling: that
admission of Bernal‘s statements to Tejeda violated her Sixth Amendment right to
confront and cross-examine witnesses.7 Defendant rests her argument principally
on Bruton v. United States (1968) 391 U.S. 123, but that decision is inapposite

7 The People argue we should not consider this claim because it ―is not one
of the issues, or fairly included within the issues,‖ they set forth in their petition
for review. However, the People‘s petition stated the relevant issue as follows:
―Is a statement that implicates a nontestifying codefendant admissible where it is
against the declarant‘s interest, inextricably tied to and part of the statement
against interest, and made under circumstances that this Court and the Court of
Appeal have repeatedly deemed to demonstrate trustworthiness?‖ (Italics added.)
Whether the statement is admissible under the Sixth Amendment is fairly included
within this statement of the issue. However, we note that, under our rules,
defendant could have foreclosed the People‘s procedural argument by raising the
issue in an answer to the petition for review. (Cal. Rules of Court, rule 8.500(a)(2)
[party may file an answer to the petition ―ask[ing] the court to address additional
issues if it grants review‖].)

34
because it involved a nontestifying codefendant‘s hearsay statement that did not
qualify for admission against the defendant under any hearsay exception and that
was ―clearly inadmissible against [the defendant] under traditional rules of
evidence.‖ (Id. at p. 128, fn. 3.) Indeed, the high court in Bruton expressly
declined to comment on the admissibility of a nontestifying codefendant‘s hearsay
statement where, as here, a ―recognized exception to the hearsay rule‖ applies.
(Ibid.) Moreover, in Davis v. Washington (2006) 547 U.S. 813, 824, the high
court unequivocally held ―that the confrontation clause applies only to testimonial
hearsay statements and not to [hearsay] statements that are nontestimonial.‖
(People v. Geier (2007) 41 Cal.4th 555, 603, italics added.) Bernal‘s statements to
his nephew in his nephew‘s apartment were unquestionably nontestimonial;
defendant‘s counsel expressly ―concede[d]‖ this fact in the trial court and
defendant does not now assert otherwise. Thus, binding high court precedent
requires us to hold that the Sixth Amendment is inapplicable and that defendant‘s
confrontation clause claim therefore fails.

C. The Prosecution’s Comments on Reasonable Doubt Did Not
Constitute Misconduct.

During his rebuttal argument, the prosecutor stated: ―The court told you
that beyond a reasonable doubt is not proof beyond all doubt or imaginary doubt.
Basically, I submit to you what it means is you look at the evidence and you say,
‗I believe I know what happened, and my belief is not imaginary. It‘s based in the
evidence in front of me.‘ ‖ Defendant‘s counsel objected that these comments
―misstate[d] the law.‖ Before the court ruled on the objection, the prosecution
added, ―That‘s proof beyond a reasonable doubt.‖ The trial court then overruled
the objection.
Defendant asserts that these comments constituted prejudicial misconduct
in that they lowered the People‘s burden of proof. She argues they improperly
indicated that ―proof beyond a reasonable doubt required no more than a simple

35
belief, so long as that belief was not based on speculation or imagination,‖ i.e., ―a
nonimaginary belief‖ that could ―be supported by a preponderance of the evidence,
or even a strong suspicion.‖ The error was prejudicial, she asserts, because (1) the
case against her turned on ―a single issue,‖ i.e., her ―mental state,‖ (2) the
evidence on this issue was ― ‗close and not particularly strong,‘ ‖ and (3) the
prosecution‘s comments ―permitted the jury to convict [her] when a contrary and
innocent interpretation of the evidence was reasonable.‖
As we have often explained, ―it is improper for the prosecutor to misstate
the law generally [citation], and particularly to attempt to absolve the prosecution
from its prima facie obligation to overcome reasonable doubt on all elements
[citation].‖ (People v. Marshall (1996) 13 Cal.4th 799, 831.) Improper comments
violate the federal Constitution when they constitute a pattern of conduct so
egregious that it infects the trial with such unfairness as to make the conviction a
denial of due process. (People v. Hill (1998) 17 Cal.4th 800, 819.) Improper
comments falling short of this test nevertheless constitute misconduct under state
law if they involve use of deceptive or reprehensible methods to attempt to
persuade either the court or the jury. (Ibid.) To establish misconduct, defendant
need not show that the prosecutor acted in bad faith. (Id. at p. 822.) However, she
does need to ―show that, ‗[i]n the context of the whole argument and the
instructions‘ [citation], there was ‗a reasonable likelihood the jury understood or
applied the complained-of comments in an improper or erroneous manner.‖
(People v. Centeno (2014) 60 Cal.4th 659, 667.) If the challenged comments,
viewed in context, ―would have been taken by a juror to state or imply nothing
harmful, [then] they obviously cannot be deemed objectionable.‖ (People v.
Benson (1990) 52 Cal.3d 754, 793.)
Applying these principles, we find no misconduct. Initially, we observe
that the challenged remarks, viewed in isolation, were incomplete at best. They
informed jurors that their ―belief‖ about what had happened had to be ―based in
the evidence‖ rather than ―imaginary.‖ Although this is a correct statement of the

36
law, it does not alone suffice as a definition of the beyond-a-reasonable-doubt
standard.
However, viewing the challenged statements in context, we find no
reasonable likelihood that jurors understood them as defendant asserts, i.e., that a
―simple,‖ ―nonimaginary‖ belief ―supported by a preponderance of the evidence,
or even a strong suspicion‖ was sufficient to convict. Initially, in determining how
jurors likely understood the prosecution‘s arguments, we do ― ‗not lightly infer
that a prosecutor intends an ambiguous remark to have its most damaging meaning
or that a jury, sitting through lengthy exhortation, will draw that meaning from the
plethora of less damaging interpretations.‘ ‖ (People v. Gonzalez (1990) 51 Cal.3d
1179, 1224, fn. 21 (Gonzalez); see People v. Frye (1998) 18 Cal.4th 894, 970.)
In light of this principle, it is significant that the trial court properly defined
the reasonable doubt instruction in both its oral jury instructions and the written
instructions it gave the jury to consult during deliberations. Before the parties
gave closing arguments, the court instructed the jury that ―[a] defendant in a
criminal case is presumed to be innocent,‖ that the People must ―prove a defendant
guilty beyond a reasonable doubt,‖ and that jurors ―must find‖ defendant and
Bernal not guilty ―[u]nless the evidence proves [them] guilty beyond a reasonable
doubt.‖ Later in its preargument instructions, the court reemphasized numerous
times — in connection with the jurors‘ consideration of defendant‘s pretrial
statements, proof of first degree murder, proof of attempted murder, and proof of
enhancement allegations — that it was the People‘s burden to prove guilt ―beyond
a reasonable doubt.‖ The first time it set forth the People‘s burden, the court
added: ―Proof beyond a reasonable doubt is proof that leaves you with an abiding
conviction that the charge is true. The evidence need not eliminate all possible
doubt because everything in life is open to some possible or imaginary doubt.‖
The court later submitted these instructions to the jury in writing to refer to during
deliberations. As we have explained, ―[w]e presume that jurors treat the court‘s
instructions as a statement of the law by a judge, and the prosecutor‘s comments

37
as words spoken by an advocate in an attempt to persuade.‖ (People v. Clair
(1992) 2 Cal.4th 629, 663, fn. 8.) ―[P]rosecutorial commentary should not be
given undue weight in analyzing how a reasonable jury understood . . .
instructions. Juries are warned in advance that counsel‘s remarks are mere
argument, missteps can be challenged when they occur, and juries generally
understand that counsel‘s assertions are the ‗statements of advocates.‘ Thus,
argument should ‗not be judged as having the same force as an instruction from
the court.‘ ‖ (Gonzalez, supra, 51 Cal.3d at p. 1224, fn. 2.)
Indeed, the trial court here emphasized in several ways that jurors should
follow its instructions rather than anything potentially contrary in counsels‘
arguments. In its oral and written jury instructions, the court stated: ―If you
believe the attorneys‘ comments on the law conflict with my instructions, you
must follow my instructions.‖ The court later emphasized this principle in ruling
on objections. After one of defense counsel‘s arguments, the prosecution
interjected: ―Objection, that is a misstatement of law.‖ The court responded:
―Well, the jurors have been instructed on the law, they will get copies of the jury
instructions. If counsel‘s statement is different than what you understand the law
to be based on what I said, you will have to ignore counsel‘s statement on that.‖
Later, during rebuttal, after the prosecution asserted that defense counsel had made
a legal misstatement during closing argument, defense counsel stated: ―I‘d
object[.] I did not misstate the law.‖ The court responded: ―The jurors heard
what you said, and they can compare it to the laws I gave them.‖
It is also significant that defense counsel emphasized the court‘s
instructions on reasonable doubt numerous times during closing argument. Early
in his argument, he reminded the jury of both the presumption of innocence and
the People‘s burden to prove defendant‘s guilt ―beyond a reasonable doubt.‖ He
later briefly referenced the legal ―definition‖ of ―reasonable doubt,‖ stating that
―it‘s kind of . . . [legalese] of an abiding conviction.‖ Toward the end of his
argument, defendant‘s counsel became more specific, stating: ―Here‘s that jury

38
instruction that I mentioned. I‘ll reference you to the third paragraph. You‘ll get
the document. Proof beyond a reasonable doubt is an abiding conviction that the
charge is true.‖ Counsel also added his own gloss on this instruction, stating that
an ―[a]biding conviction the charge is true . . . is one that‘s enduring. You‘re not
going to go home and second-guess yourself that you made the right choice.
You‘re certain in your decision making.‖ At another point, counsel emphasized
that ―[p]roof beyond a reasonable doubt is the greatest burden in our legal
system. . . . We want to be virtually certain, as certain as possible in someone‘s
guilt before we take away their liberty.‖
Also significant is the fact that the prosecution‘s comments on reasonable
doubt specifically referred the jury to the court‘s instruction on the subject. The
prosecution introduced this topic by stating: ―Counsel [for defendant] talked to
you about reasonable doubt. You have the instruction on that.‖ Only after
directing the jury‘s attention to the court‘s reasonable doubt instruction did the
prosecution discuss defense counsel‘s ―characteriz[ation]‖ of the standard and
submit its alternative view of ―what [the standard] means.‖ The court gave correct
instructions and the prosecution explicitly deferred to them. Thus, it is unlikely
that jurors would have understood the prosecution‘s statement, ―[t]hat‘s proof
beyond a reasonable doubt,‖ made after defense counsel‘s interruption, to imply
either a repudiation of those correct instructions or an invitation that the jury
disregard or deviate from them.
Finally, it is significant that the challenged statement was a brief, isolated
remark offered in response to defense counsel‘s misleading comments on the
subject. To explain the standard, defendant‘s counsel stated at one point that
―proof beyond a reasonable doubt‖ is the ―amount of evidence‖ that would enable
―[e]ven a mother . . . to believe [her] child is guilty.‖ Defendant‘s counsel later
added: ―This is my way to say what is reasonable doubt to you. Ask yourself,
‗are you a reasonable person? Would you entertain ridiculous arguments?‘ . . .
You guys are reasonable people. You only entertain reasonable arguments. You

39
will only entertain reasonable doubt. If you have a doubt, if you‘re a reasonable
person, any doubt you have about the case is reasonable. If you entertain doubt,
it‘s reasonable.‖ It is in response to these comments that the prosecutor told jurors
that their belief about what had happened had to be ―based in the evidence‖ and
―not imaginary.‖ As the high court has observed, ―[i]solated passages of a
prosecutor‘s argument,‖ ―like all closing arguments of counsel, are seldom
carefully constructed in toto before the event; improvisation frequently results in
syntax left imperfect and meaning less than crystal clear.‖ (Donnelly v.
DeChristoforo (1974) 416 U.S. 637, 646-647.) This general observation is the
basis for the rule, as noted above, that ―court[s] should not lightly infer that a
prosecutor intends an ambiguous remark to have its most damaging meaning or
that a jury, sitting through lengthy exhortation, will draw that meaning from the
plethora of less damaging interpretations.‖ (Id. at p. 647.) It aptly describes the
isolated remark defendant challenges here, which was surely improvised to answer
defense counsel‘s assertions that (1) proof beyond a reasonable doubt is the
―amount of evidence‖ that would enable ―[e]ven a mother . . . to believe [her]
child is guilty,‖ and (2) because the jurors were ―reasonable people,‖ ―any doubt‖
they had ―about the case [was] reasonable.‖
In summary, given that the challenged comments were brief and constituted
a tiny, isolated part of the prosecution‘s argument, that the prosecution was
responding to defense counsel comments, that the prosecution expressly referred
the jurors to the instruction they had on reasonable doubt, that both the court and
defense counsel properly defined ―reasonable doubt‖ numerous times, and that the
jury had written instructions during deliberations that properly defined the
standard, we find no reasonable likelihood the jury construed or applied the

40
prosecution‘s challenged remarks in an objectionable fashion. We therefore reject
defendant‘s misconduct claim.8
III. DISPOSITION
The judgment of the Court of Appeal‘s is reversed and the matter is
remanded for further proceedings consistent with this opinion.

CHIN, J.
WE CONCUR:

CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
KRUGER, J.

8 Notably, the concurring opinion does not state disagreement with our
conclusion that, in the context of the whole argument and the instructions, there is
no reasonable likelihood the jury applied the challenged remarks in an improper or
erroneous manner. Instead, it abandons our well-established contextual approach
to misconduct claims and, citing no supporting authority, evaluates the challenged
remarks only in isolation (except in determining prejudice). (Conc. opn. of
Werdegar, J., post, at p. 3.)

41
 CONCURRING OPINION BY WERDEGAR, J.

I concur in the result and most of the reasoning of the majority opinion. I
write separately to address the prosecutor‘s comments on proof beyond a
reasonable doubt, which in my view were not merely incomplete but a
misstatement of that standard. I also explain my view of why the trial court did
not err in admitting evidence of the statement codefendant Rodrigo Bernal made to
his nephew Oscar Tejeda.
As the majority acknowledges (maj. opn., ante, at p. 36), for a prosecutor to
misstate the law in argument to the jury is improper and constitutes misconduct;
this is particularly true of the standard of proof beyond a reasonable doubt, which
fundamentally defines the People‘s burden at trial. (People v. Centeno (2014) 60
Cal.4th 659, 666; People v. Hill (1998) 17 Cal.4th 800, 829.) To establish such
misconduct, bad faith or intentional misrepresentation is not required. For that
reason, this type of ― ‗misconduct‘ ‖ could more aptly be termed prosecutorial
― ‗error.‘ ‖ (People v. Centeno, supra, at pp. 666–667; People v. Hill, supra, at
p. 823, fn. 1.)
In this case, the prosecutor erred—most likely unintentionally—by
misdescribing the standard of proof beyond a reasonable doubt to the jury.
Responding to a defense argument that overstated the burden of proving guilt
beyond a reasonable doubt (see maj. opn., ante, at p. 39), the prosecutor stated:
―The court told you that beyond a reasonable doubt is not proof beyond all doubt

1
or imaginary doubt. Basically, I submit to you what it means is you look at the
evidence and you say, ‘I believe I know what happened, and my belief is not
imaginary. It’s based in the evidence in front of me.’ . . . That’s proof beyond a
reasonable doubt.‖ (Italics added.)
The vice in the prosecutor‘s explanation was that it reversed the standard of
proof beyond a reasonable doubt, telling the jury that their belief in guilt need only
be nonimaginary, rather than that the evidence must exclude all reasonable doubts.
As we explained in People v. Centeno, supra, 60 Cal.4th at page 672, where we
disapproved a similar prosecutorial argument, a statement that the jury must set
aside unreasonable inferences is permissible, but does not itself describe the
standard of proof: ―It is not sufficient that the jury simply believe that a
conclusion is reasonable. It must be convinced that all necessary facts have been
proven beyond a reasonable doubt.‖ Contrary to the prosecutor‘s argument here, a
belief that is ―not imaginary‖ and is ―based in the evidence‖ does not necessarily
meet the beyond a reasonable doubt standard. By suggesting that the People‘s
burden was satisfied if the evidence supported a reasonable, nonimaginary belief
in guilt, the prosecutor erred.
The majority characterizes the prosecutor‘s remarks as ―correct‖ but
―incomplete.‖ (Maj. opn., ante, at p. 36.) This is a bit like describing the maiden
voyage of the Titanic as ―incomplete.‖ The essence of the proof beyond a
reasonable doubt standard is its specification of a particular level of certainty on
the factfinder‘s part; omitting mention of that level from an explanation of the
standard, as the prosecutor did here, makes the explanation not merely incomplete
but wrong. ―Proof to a nonimaginary degree‖ is not equivalent to proof beyond a
reasonable doubt, and the prosecutor erred in saying it is.
To establish a claim for prosecutorial misstatement of the law, defendant
must, as the majority states (maj. opn., ante, at p. 36), show a reasonable

2
likelihood that the jury understood the comments in an erroneous manner. (People
v. Centeno, supra, 60 Cal.4th at p. 667.) The majority finds no such reasonable
likelihood here when the prosecutor‘s remarks are viewed in the context of the
court‘s correct instructions on proof beyond a reasonable doubt, the admonitions
given the jury that it must follow the law as provided in the court‘s instructions
over anything contrary in counsel‘s arguments, and portions of both attorneys‘
arguments that referred to and quoted the court‘s instructions on the standard of
proof. (Maj. opn., ante, at pp. 37-40.)
In a case where the prosecutor‘s challenged remarks were ambiguous, so
that they could reasonably have been taken in either a proper or objectionable
manner, examining the context to determine how the jury would likely have
understood them makes sense. But this is not such a case. The prosecutor‘s
statement that proof beyond a reasonable doubt ―means‖ that ―you look at the
evidence and you say, ‗I believe I know what happened, and my belief is not
imaginary‘ ‖ is unambiguous, and unambiguously wrong. Notably, the majority
does not attempt to say how this remark reasonably could be understood in an
unobjectionable manner.
The contextual factors the majority brings forward are, however, persuasive
as to the lack of prejudice from this prosecutor‘s misstatement of the law. The
prosecutor‘s isolated misstatement clearly was not so extensive and egregious as
to render the trial fundamentally unfair, infringing on defendant‘s federal due
process rights. The misstatement violated only California law against the use of
deceptive methods in jury argument, making it subject only to the prejudice
standard generally applicable to state law trial errors, whether a reasonable
probability exists the error affected the jury‘s verdict. (People v. Hill, supra, 17
Cal.4th at p. 819; People v. Espinoza (1992) 3 Cal.4th 806, 820–821.)
Consequently, for the same reasons the majority finds no reasonable likelihood

3
―the jury construed or applied the prosecution‘s challenged remarks in an
objectionable fashion‖ (maj. opn., ante, at p. 40), I would find no reasonable
probability the prosecutor‘s misstatement of the law affected the jury‘s verdict.
With respect to the admission of evidence that codefendant Bernal told
Tejada that one of his cohorts drove the car used in the shooting and identified
defendant by name as the driver, I agree with the majority that the trial court did
not abuse its discretion under Evidence Code section 1230. (Maj. opn., ante, at
p. 33.) But unlike the majority, I would rely only on the inculpatory value for
Bernal of linking himself to defendant and her car, knowing she had been arrested
in that car. (Maj. opn., ante, at pp. 31–32.) The fact that Bernal‘s identification of
a criminal companion as the driver provided evidence of an overt act in
furtherance of a conspiracy (maj. opn., ante, at p. 30) provides, in this factual
context, too weak a connection to criminality to be considered disserving of
Bernal‘s penal interest under Evidence Code section 1230. Knowing that the
conspiracy to shoot rival gang members had actually borne fruit in a shooting,
which Bernal himself committed, a reasonable person in Bernal‘s position would
not have considered it incriminating to admit that another person had committed a
preparatory act in furtherance of the conspiracy.
I concur in the judgment.

WERDEGAR, J.

WE CONCUR:

LIU, J.
CUÉLLAR, J.

4
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Cortez
__________________________________________________________________________________

Unpublished Opinion XXX NP opn. filed 5/30/13 – 2d Dist., Div. 8
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S211915
Date Filed: May 9, 2016
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Dennis J. Landin

__________________________________________________________________________________

Counsel:

Robert E. Boyce and Benjamin B. Kington, under appointments by the Supreme Court, for Defendant and
Appellant Norma Lillian Cortez.

Eric R. Larson, under appointment by the Supreme Court, for Defendant and Appellant Rodrigo Alonso
Bernal.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Michael C. Keller, Steven D. Matthews and Zee Rodriguez, Deputy Attorneys
General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Robert E. Boyce
Boyce & Schaefer
934 23rd Street
San Diego, CA 92102-1914
(619) 232-3320

Zee Rodriguez
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 576-1342