People v. Lopez CA5

Filed 1/26/21 P. v. Lopez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F077400
Plaintiff and Respondent,
(Super. Ct. No. BF163485A)
v.

JUAN FRANCISCO LOPEZ, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. John W. Lua,
Judge.
Janice M. Lagerlof, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Paul E.
O’Connor, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
A jury found appellant Juan Francisco Lopez guilty of the murder (Pen Code,1
§ 187, subd. (a)) of Silvestre Soto. The jury fixed the murder at first degree, finding true
allegations that appellant committed the crime with premeditation and deliberation and

1 All further undesignated statutory references are to the Penal Code.
while lying in wait (§ 189). The jury found true allegations that appellant personally and
intentionally discharged a firearm causing death in the commission of the crime
(§ 12022.53, subd. (d)), and that appellant committed the murder for financial gain
(§ 190.2, subd. (a)(1)) and while lying in wait (§ 190.2, subd. (a)(15)).
On appeal, appellant contends his conviction must be reversed because (1) his
California constitutional rights were violated by the collection of DNA evidence
following a 2012 arrest for charges that were later dismissed, which was retained and
used to connect appellant to the crime scene; (2) his Sixth and Fourteenth Amendment
rights were violated when the court instructed the jury with CALCRIM No. 373 on
uncharged participants without instructing the jury the instruction did not apply to
testifying witnesses; and (3) his Sixth and Fourteenth Amendment rights were violated
when the court allegedly failed to properly respond to a jury question. We affirm.
FACTS
Soto was a mechanic who owned a tow truck. Soto’s wife, Olga Galvan,2 testified
that on the evening of March 19, 2014, she and Soto were sitting in their backyard. At
around 8:00 or 8:30 p.m., she heard someone arrive and yell “Silvestre” from the
driveway. Soto went out to the driveway to talk to the person for about four to five
minutes. When Soto went back to the backyard, he told Olga he was going to pick up a
car with his tow truck and would be right back.
At around 9:15 or 9:30 p.m., Soto had not returned home. Olga was worried and
called Soto about three times. Olga received a text message from Soto’s number that
said, “I cannot speak right now. I’ll call you back later.” Olga said this did not seem like
a text message Soto would send. They did not text; he usually would just answer her
calls.

2 Both Olga Galvan and Lisandro Galvan testified at trial and are referred to herein
by their first names to avoid confusion. No disrespect is intended.

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 On March 20, 2014, the body of Soto Silvestre was found in an orchard. Soto had
sustained multiple shotgun rounds to the face. His body was lying behind his tow truck
with shoe prints situated around Soto’s body as if someone were straddling him. There
were several spent 12-gauge shotgun shells around Soto’s body. Soto’s pants pockets
were pulled out as if someone went through his pockets, and his wallet was not found on
his person. There was a pair of black latex gloves lying in between Soto’s legs, which
were sent to the Kern County Regional Crime Lab for forensic analysis. The autopsy
revealed the cause of death was multiple shotgun wounds. A man who lived on the
orchard property heard two gunshots between 8:30 p.m. and 9:00 p.m. on March 19,
2014.
The month following Soto’s death, the police were dispatched to a residence
regarding a gunshot being heard. A shotgun was seized which was later determined to be
the gun used in the homicide of Soto. The individual who was in possession of the gun,
Ignacio Garcia, was renting his residence from Alberto Gonzalez. Garcia purchased the
gun from someone he had never seen before who was passing by his residence on foot.
The person was not appellant.
Gonzalez was the husband of Soto’s wife’s cousin. According to Soto’s son,
Lisandro Galvan, Gonzalez and Soto always had a rivalry between them that stemmed
from a confrontation between Gonzalez and Soto’s younger brother. Lisandro said it was
rare that Soto would tow a vehicle late at night unless he was doing it for a friend; Soto
would not have towed a vehicle for Gonzalez or anyone associated with Gonzalez.
Gonzalez testified at trial pursuant to an immunity agreement. Gonzalez owns
Beto’s Automotive and tows vehicles. Gonzalez owns several guns, including shotguns.
Gonzalez testified he knew Soto because Soto’s family rented a house from him 30 years
prior. Gonzalez denied having an argument with Soto or Soto’s younger brother.
Gonzalez would see Soto periodically but would “never” speak to him.

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 Gonzalez had known appellant for many years. Appellant did work for Gonzalez
at his shop like bringing parts into the wrecking yard. Appellant would sometimes bring
Gonzalez plywood sheets. Gonzalez told police in 2015, a cell phone that was registered
to Gonzalez, but was not his primary cell phone, ending in numbers 2451 (phone 2451),
was exclusively used by appellant. At trial, however, he testified anyone at his shop had
access to the phone.
GPS data from phone 2451 showed that on March 19, 2014, between 6:00 p.m.
and 6:45 p.m., there were several calls between phone 2451 and Gonzalez’s primary cell
phone. From about 8:00 p.m. to 8:30 p.m., the phone was moving from the area of Soto’s
residence toward the murder scene. At 8:43 p.m., phone 2451 called Gonzalez’s primary
cell phone and there were several shorter calls between the two phones shortly after.
That night, Victoria Guzman, who was dating Lina Castro, appellant’s wife’s
brother, received a text message from phone 2451 that said, “Hey, this is Juan. In a bit
I’m gonna need you to act like my wife. Please answer me when I do.” There were two
more messages from phone 2451 shortly thereafter: “K. Just that you got tired of
waiting and got a ride from a coworker” and “K. Thanks. This is important.”
Immediately after receiving these texts, Guzman got a phone call from an unknown
number but no one spoke. She could hear voices but could not identify who it was or
what was being said. She thought it was appellant because of the texts. It was later
determined the phone call was from Soto’s cell phone. Phone records show there were
several texts between phone 2451 and Guzman between 8:14 p.m. and 8:23 p.m. and then
two calls from Soto’s phone to Guzman: one at 8:28 p.m. and one at 8:36 p.m.
Guzman spoke to the police in July 2014. She told them approximately three days
after she got the strange phone call, appellant told her Gonzalez hired him to kill
someone. Appellant had a “fat stack” of money and said he got it and a white Chevrolet
Cavalier for killing the person. At trial, Guzman testified she did not recall telling the
police that. A wiretap intercept of a phone call between Guzman and another unknown

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individual recorded her telling the other person that “Juan killed somebody.” She told the
other person that appellant “calls my fuckin’ cell phone from the dead guy’s phone right
after he did it and that’s how I’ve been tied into this shit for a minute.” She said
appellant was “bragging about killing this dude.”
In July 2014, a friend of appellant’s, Robert Hernandez, spoke to the police and
told them that appellant said he got hired to do a job and that “the guy is no longer here.”
Appellant appeared to be boasting about it, like he was proud. Appellant told Hernandez
he got $5,000 or $6,000 and a car for doing the job. Appellant suggested to Hernandez
that he killed someone even though he did not use those exact words. Appellant said he
went into the orchard with “this guy” and that a shot was involved. Appellant did not tell
Hernandez how he got the guy to go out there with him but that he was in the tow truck
with the victim. Appellant said he took the victim’s wallet and cell phone. Hernandez
told the police he was scared for himself and his family because he did not know what
appellant was capable of. Hernandez requested to be anonymous because “I’m really
frightened of this man.” Appellant told Hernandez that “[i]f anybody snitches, that’s the
end of their life.” At trial, Hernandez testified he did not remember anything he told the
police.
In July 2014, a Chevrolet Cavalier registered to appellant was located in a towing
yard. The purchase date of the vehicle was listed on the registration as April 3, 2014. A
cell phone from the center console of the vehicle had made several calls to and from
Gonzalez and Guzman between April and June 2014.
After Gonzalez spoke to law enforcement, he texted appellant saying, “The police
came to the shop and asked for you,” and asked appellant to call him. At some point
Gonzalez called appellant and the phone call was intercepted by wiretap. In the phone
call, appellant answered and told Gonzalez he was going to call him but that he was
“hiding because of this shit that’s going on.” Gonzalez told appellant the police were

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looking for him; when the police asked Gonzalez for appellant’s phone number, he gave
the police an old number. Gonzalez told appellant to be “alert” and “very careful.”
Shortly after the call, appellant’s brother called Gonzalez and asked him for
money so that “[appellant] can leave, so that he can get out of here.” Gonzalez said he
would help and told appellant’s brother he would give him $300 so that “[appellant] gets
a bus.” Gonzalez did give appellant’s brother the money to help appellant.
DNA collected from the gloves found at the scene were analyzed and compared
through the Combined DNA Index System (CODIS). In December 2015, the police
received a match to appellant on one of the gloves.
A warrant was subsequently issued for appellant’s arrest and, in March 2016, he
was arrested out of county. Appellant spoke to police for several hours but never
admitted involvement in Soto’s murder. Appellant said he had borrowed a cell phone
from Gonzalez, and the last time he did so was “at least two years” before the interview.
Among the defense’s evidence was testimony from Guzman’s boyfriend from the
time of the murder and appellant’s brother-in-law, Lino Castro. Castro was interviewed
by the police in July 2014. He told the police that Guzman thought appellant was
involved because she noticed he had a car when he previously did not have one and he
had a lot of money on him. Castro said appellant has not told him about committing a
murder but that Guzman would not lie about something like that. Castro said Guzman
had not told him that appellant told her Gonzalez gave him a car and some money to kill
someone; he thought Guzman just made an assumption about where he got the car and
the money.
The prosecutor’s theory was appellant shot and killed Soto at the direction of
Gonzalez in exchange for money and a vehicle.
Defense counsel argued the evidence placing appellant at the murder scene was
circumstantial. He suggested the gloves found at the scene with appellant’s DNA were
planted by Gonzalez. Defense counsel argued “this was [Gonzalez’s] murder.” Defense

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counsel pointed out Guzman appeared to be involved too and the phone records admitted
into evidence revealed several calls between she and Gonzalez.
DISCUSSION

I. Alleged Violation of Appellant’s Right Against Unreasonable Search and
Seizure and to Privacy Under the California Constitution
A. Relevant Background
Under California’s “DNA and Forensic Identification Database and Data Bank Act
of 1998, as amended” (DNA Act) (§ 295), any person arrested for or charged with a
felony offense shall provide, among other identification, information such as fingerprints
and buccal swab samples. (§ 296, subd. (a)(2)(C).) DNA profiles created from these
samples are uploaded to available state and national DNA and forensic identification data
banks and databases. (§ 297, subd. (b).)
The DNA Act contains an expungement provision for those who (1) have no past
or present offense or pending charge which qualifies that person for inclusion within the
state’s database and (2) there otherwise is no legal basis for retaining the sample or
profile. (§ 299, subd. (a).) Of those who may request to have their DNA sample
destroyed and database profile expunged include arrestees who have given a DNA
sample under the DNA Act and whose charges have been dismissed prior to adjudication
by a trier of fact. (§ 299, subd. (b)(1).) The arrestee may make a written request to have
his or her specimen and sample destroyed and searchable database profile expunged from
the data bank program. (§ 299, subd. (b).) The court has discretion to grant or deny the
request for expungement, and the denial is a nonappealable order. (§ 299, subd. (c)(1).)
In the present case, the match in the CODIS database to appellant’s DNA on the
gloves from the crime scene was a result of a DNA sample appellant provided at booking
for a 2012 felony arrest pursuant to section 296. Charges were filed against appellant in
relation to that arrest but were subsequently dismissed, and his DNA profile remained

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uploaded in CODIS. There is no evidence on the record appellant made any effort to get
his sample or profile expunged.
Appellant moved to suppress the DNA evidence taken from him in 2012 following
his arrest, as well as the “fruits” of the collection of such evidence: the resulting CODIS
hit generated in the present case in December 2015; any and all statements appellant
made to law enforcement in March 2016; a DNA swab taken from appellant in April
2016 as part of the investigation for the present case; and the results of the subsequent
DNA test. Appellant argued in his motion that his arrest was not supported by probable
cause as required by the United States Supreme Court case, Maryland v. King (2013)
569 U.S. 435 (King), and the DNA Act violates article I, section 13 of the California
Constitution.
At the hearing on the motion, Kern County Deputy Sheriff Dustin Silva testified
that on May 8, 2012, he was dispatched to a construction site due to a report of people
trespassing and possibly trying to steal construction materials. When Silva arrived, he
saw an opening in the gate with broken chain links lying on the ground in the dirt. He
could not see anyone but heard people running from the property. Silva entered the
construction site and observed a white van parked on the premises which was backed up
to a pile of plywood. There were several sheets of plywood in the van and he located a
receipt on the driver’s side floorboard with the name Alberto Gonzalez written on it.
Silva also observed several unique footprints going from the white van to the plywood
area. Silva called the reporting party by cell phone who told Silva they saw two vehicles;
a gold colored Crown Victoria and a white van pull up to the location. The reporting
party saw a person exit the gold vehicle, cut the lock, and open the gate; the person in the
white van backed the van onto the property. Silva then spoke with the reporting party in
person, who pointed out the vehicle they saw earlier in the evening driving past, saying,
“There is those sons of bitches right there.”

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 When the vehicle came back around near the construction site, Silva and his
partner made a traffic stop on the vehicle. Gonzalez was driving, and appellant, along
with another individual, were passengers in the vehicle. They were sweating profusely
and appeared to be nervous. Silva asked to look at appellant and the other individuals’
shoes, and they were very similar to the unique prints at the scene. Silva’s partner
located a set of keys on Gonzalez’s person, which they later determined opened the doors
to the van and started the vehicle. As a result, Silva requested petty theft, trespassing,
and felony conspiracy charges be filed against appellant. Silva recalled writing a
probable cause declaration relating to the felony arrest for conspiracy. Silva arrested
appellant and transported him to the central receiving facility and provided the probable
cause declaration to the booking officers.
Following Silva’s testimony, the court granted defense counsel’s request to take
judicial notice of the fact the charges filed against appellant by way of complaint,
namely, sections 460, subdivision (b), 182, subdivision (a)(1), 6025, and 594,
subdivision (b)(2)(A), were dismissed on June 19, 2012.
At the request of the prosecutor, and no objection from defense counsel, the court
took judicial notice of the fact that the buccal swab was taken following a felony arrest on
May 9, 2012, after appellant was booked into the central receiving facility.
The court denied defense counsel’s request to find the DNA Act unconstitutional
and denied appellant’s motion to suppress.
B. Analysis
On appeal, appellant contends the introduction of evidence collected and retained
under the DNA Act in this case violated appellant’s California constitutional rights
against unreasonable search and seizure and to privacy. Appellant argues his case
presents a question left open by the California Supreme Court decision in People v. Buza
(2018) 4 Cal.5th 658 (Buza).

9.
 In Buza, the defendant had been convicted of refusing to provide a specimen as
required by the DNA Act, a misdemeanor (§ 298.1, subd. (a)), and appealed his
conviction. The Buza Court of Appeal reversed the defendant’s conviction finding the
collection requirement of the DNA Act as it applies to arrestees violated his rights against
unreasonable search and seizure under the Fourth Amendment to the United States
Constitution. (Buza, supra, 4 Cal.5th at p. 665.) While the case was pending on appeal,
the United States Supreme Court addressed a similar statutory scheme in King, supra,
569 U.S. 435 and held “[w]hen officers make an arrest supported by probable cause to
hold for a serious offense and they bring the suspect to the station to be detained in
custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting
and photographing, a legitimate police booking procedure that is reasonable under the
Fourth Amendment.” (Id. at pp. 465–466.) The case was returned to the Buza Court of
Appeal who again reversed the appellant’s conviction based on the finding that the DNA
Act violates the California Constitution’s prohibition on unreasonable searches and
seizures. (Buza, at p. 665.)
On review, the Supreme Court held the DNA collection requirement was
constitutionally valid as applied to an individual who is, quoting King, validly arrested on
“ ‘probable cause to hold for a serious offense’ ” and required to swab his cheek as “ ‘part
of a routine booking procedure’ ” at county jail under both the federal and state
constitutions. (Buza, supra, 4 Cal.5th at p. 665.)
The Supreme Court reversed the Court of Appeal’s judgment by a 4-3 vote.
(Buza, supra, 4 Cal.5th at p. 665.) Justice Liu wrote a dissenting opinion, with Justices
Cuéllar and Perluss concurring, and Justice Cuéllar wrote a separate dissenting opinion,
with Justices Liu and Perluss concurring. Justice Liu concluded the defendant’s
conviction for refusing to comply with the DNA Act was invalid under the California
Constitution and expressed no view on whether it was also invalid under the Fourth

10.
Amendment. (Buza, at p. 704.)3 Justice Cuéllar concluded the DNA Act unlawfully
invades an individual’s reasonable expectation of privacy in their personal genetic
information in violation of article I, section 1 of the California Constitution. (Buza, at
pp. 726–727.)
Here, appellant does not argue he was not validly arrested for a serious offense nor
that the collection of his DNA sample was not part of a routine booking procedure.
Rather, appellant contends the DNA collection procedure under section 296 violates the
California Constitution’s guarantees against unreasonable search and seizure and to
privacy as applied to individuals, like him, who are swabbed immediately after a felony
arrest but whose charges are subsequently dismissed and whose sample is not
subsequently sought to be expunged or actually expunged. Appellant contends this group
was not addressed by the Buza majority4 and relies heavily on comments from Justice

3 On May 20, 2019, respondent requested we take judicial notice of the Attorney
General’s Crime in California 2016 Report and the Attorney General’s Crime in
California 2017 Report, as the report was referred to by Justice Liu in his Buza dissent.
On May 24, 2019, this court ordered ruling on the request deferred pending consideration
of this appeal.
On September 18, 2020, respondent filed a second request that we take judicial
notice of the Attorney General’s Crime in California 2018 Report and the California
Department of Justice form JUS 8715/8715A—Information and Code Explanations.
Respondent’s requests are hereby granted. (Evid. Code, §§ 452, 459.) We note,
however, these documents have no effect on our disposition, as we did not reach the issue
to which they pertain.
4 The Buza majority “acknowledge[d the] defendant’s concern about the collection
of DNA samples from other individuals who are booked into custody but who ultimately
will never be charged with a qualifying crime, or against whom qualifying charges will
ultimately be dismissed.” (Buza, supra, 4 Cal.5th at p. 679.) The Buza court noted voters
had responded to that concern by providing for expungement of the DNA sample and
associated records when the suspect is cleared of qualifying charges. Though the
Maryland statute at issue in King had automatic destruction provisions, the Buza court
noted the court in King attached no significance to these provisions in its constitutional
analysis. (Buza, at pp. 679–680.) The Buza court also noted an arrestee’s fingerprints,
photographs, and other identifying information in law enforcement files generally have

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Liu’s and Justice Cuéllar’s dissents regarding shortcomings of the DNA Act’s
expungement procedure, arguing the present case gives this court the opportunity to
address the concerns of the dissenting justices. Appellant does not allege any violation of
his Fourth Amendment rights.
Respondent argues appellant’s argument is “dead at the outset” because
appellant’s challenge is to a ruling on a suppression motion, which is governed by Fourth
Amendment search and seizure jurisprudence, not California law. We agree with
respondent’s contention that federal law applies to the issues appellant raises in the
present case.
Generally, the California Constitution is a document of “independent force.”
(People v. Brisendine (1975) 13 Cal.3d 528, 549–550.) Prior to the adoption of
Proposition 8, the Victim’s Bill of Rights, California courts could interpret the California
Constitution as entitling Californians to greater protection under the California
Constitution against unreasonable searches and seizures than that required by the United
States Constitution. (See ibid.)
Proposition 8, however, added article I, section 28 to the California Constitution.
Relevant here is the “Right to Truth-in-Evidence” provision, which reads:

“Except as provided by statute hereafter enacted by a two-thirds vote of the
membership in each house of the Legislature, relevant evidence shall not be

not been thought to raise constitutional concerns even though the arrestee may later be
exonerated. (Id. at pp. 680–681.) The Buza court, however, declined to decide whether
the Fourth Amendment requires added protection for the “wrongly arrested or
exonerated” and left the question for “another day, because defendant in this case is
neither.” (Buza, at p. 681.)
The United States District Court for the Northern District of California
subsequently found the DNA Act’s “inclusion of a somewhat more burdensome process
for accomplishing” expungement than the Maryland statute at issue in King did not have
any effect on its constitutionality as the court in King did not factor the expungement
process into its analysis. (Haskell v. Brown (2018) 317 F.Supp.3d 1095, 1111.) The
Haskell court found the DNA Act constitutional under King.

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 excluded in any criminal proceeding, including pretrial and post conviction
motions and hearings, or in any trial or hearing of a juvenile for a criminal
offense, whether heard in juvenile or adult court. Nothing in this section
shall affect any existing statutory rule of evidence relating to privilege or
hearsay, or Evidence Code Sections 352, 782 or 1103. Nothing in this
section shall affect any existing statutory or constitutional right of the
press.” (Cal. Const, art. I, § 28, subd. (f)(2), italics added.)
In In re Lance W. (1985) 37 Cal.3d 873, 886–887, the California Supreme Court
held that the right to truth-in-evidence provision of Proposition 8 eliminated a
defendant’s right to suppress evidence the seizure of which satisfied the Fourth
Amendment but violated article I, section 13 of the California Constitution.
Subsequently, the United States Supreme Court in California v. Greenwood (1988)
486 U.S. 35, 44 rejected the contention that Proposition 8’s elimination of independent
state grounds for the exclusion of evidence violates the due process clause of the
Fourteenth Amendment. “[T]he people of California could permissibly conclude that the
benefits of excluding relevant evidence of criminal activity do not outweigh the costs
when the police conduct at issue does not violate federal law.” (California v.
Greenwood, at p. 45.) When the issue is whether seized evidence is properly admitted,
the question is “exclusively” whether its suppression is required by the United States
Constitution. (People v. Glaser (1995) 11 Cal.4th 354, 363.)
In response to respondent’s argument that federal law exclusively applies,
appellant writes in his reply brief that his arguments “should not be foreclosed by …
California Constitution, article I, section 28,” without explaining why, much less
providing any authority to support this claim. Appellant states: “Respondent … argued
that the only way that this issue can be addressed is based on the denial of his suppression
motion. [Citation.] Appellant has argued that this court should address the issue of
whether the evidence was improperly introduced and prejudicially affected the jury’s
decision-making. He asserts that this argument is not precluded under the California
Constitution and is not a Fourth Amendment claim.”

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 Appellant’s attempt to reframe his argument as anything other than one against the
admission of the fruits of the collection of his DNA following his 2012 arrest does not
make it so. As we have discussed, the “introduction” or admission of relevant evidence
is governed by the right to truth-in-evidence provision. Appellant has not persuaded us
that the proper standard to apply to his argument is not the federal standard.
Accordingly, appellant’s reliance on Justice Liu’s and Justice Cuéllar’s dissents in Buza
is not persuasive because the Buza court was not considering the admission of evidence
in a criminal case.
In other words, to address appellant’s claims would be futile. Even if we were to
conclude the DNA Act violated any of appellant’s rights under the California
Constitution, and we express no opinion here whether it does, we would not be able to
provide any remedy. We cannot give appellant the remedy he seeks unless he can show
the court erred by denying his suppression motion on Fourth Amendment grounds, which
he does not attempt to do. (See In re Lance W., supra, 37 Cal.3d at pp. 886–887 [“The
substantive scope of [section 13] remains unaffected by Proposition 8. What would have
been an unlawful search or seizure in this state before the passage of that initiative would
be unlawful today, and this is so even if it would pass muster under the federal
Constitution. What Proposition 8 does is to eliminate a judicially created remedy for
violations of the search and seizure provisions of the federal or state Constitutions,
through the exclusion of evidence so obtained, except to the extent that exclusion remains
federally compelled.” (Italics added.)].) Because appellant makes no Fourth Amendment
arguments and appears to concede exclusion was not compelled under federal law, we
need not analyze his claim any further.
II. Alleged Instructional Error
A. CALCRIM No. 373
The jury was instructed with CALCRIM No. 373, as follows:

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 “The evidence shows that another person or other persons may have
been involved in the commission of the crime charged against the
defendant. There may be many reasons why someone who appears to have
been involved might not be a co-defendant in this particular trial. You must
not speculate about whether that other person has or those other persons
have been or will be prosecuted. [¶] Your duty is to decide whether the
defendant on trial here committed the crime charged.”
Appellant contends the court erred by failing to make it clear to the jury the
instruction did not apply to the testimony of Gonzalez or Guzman because, as he argues,
it precluded the jury from considering why Gonzalez was not being tried when judging
his credibility as well as Guzman’s motivation to lie about appellant’s involvement to
avoid being prosecuted herself. Appellant contends the alleged error violated his Sixth
and Fourteenth Amendment rights.
Respondent contends appellant has forfeited this claim by failing to object to the
giving of CALCRIM No. 373 or requesting a modification. Appellant contends the issue
is properly raised because the giving of the instruction in his case affected his substantial
rights to a jury determination of the adequacy of proof required of the prosecution as
Gonzalez and Guzman were central prosecution witnesses. In light of appellant’s
contentions that his substantial rights have been affected, we will address the merits of
appellant’s claim. It fails.
“ ‘ “[T]he correctness of jury instructions is to be determined from the entire
charge of the court, not from a consideration of parts of an instruction or from a particular
instruction.” ’ ” (People v. Smithey (1999) 20 Cal.4th 936, 987.) Accordingly, “[i]n
assessing a claim of instructional error or ambiguity, we consider the instructions as a
whole to determine whether there is a reasonable likelihood the jury was misled.”
(People v. Tate (2010) 49 Cal.4th 635, 696; see Estelle v. McGuire (1991) 502 U.S. 62,
72.)
Appellant’s argument is partially supported by the bench notes to CALCRIM
No. 373, which read in pertinent part: “If other alleged participants in the crime are

15.
testifying, this instruction should not be given or the bracketed portion should be given
exempting the testimony of those witnesses.” (Bench Notes to CALCRIM No. 373
(2020), p. 139.) The bracketed portion in the instruction reads: “[This instruction does
not apply to the testimony of _______ .]”
(CALCRIM No. 373.)
The next sentence in the bench notes, however, reads: “It is not error to give the
first paragraph of this instruction if a reasonable juror would understand from all the
instructions that evidence of criminal activity by a witness not being prosecuted in the
current trial should be considered in assessing the witness’s credibility.” (Bench Notes to
CALCRIM No. 373, supra, at p. 139.) To support this statement, the bench notes cite
this court’s decision in People v. Fonseca (2003) 105 Cal.App.4th 543, 549–550
(Fonseca).
In Fonseca, this court addressed the propriety of giving CALJIC No. 2.11.5 when
coparticipants were testifying witnesses. The version of CALJIC No. 2.11.5 the Fonseca
court addressed read:

“There has been evidence in this case indicating that a person other than
defendant was or may have been involved in the crime for which the
defendant is on trial. [] There may be many reasons why that person is not
here on trial. Therefore, do not discuss or give any consideration as to why
the other person is not being prosecuted in this trial or whether [he] [she]
has been or will be prosecuted. Your [sole] duty is to decide whether the
People have proved the guilt of [each] [the] defendant on trial.” (Fonseca,
supra, 105 Cal.App.4th at p. 548.)
The Fonseca court noted the phrase “discuss or give any consideration” “is something
short of optimal.” (Fonseca, supra, 105 Cal.App.4th at p. 550.) The court went on to
say, “We think [CALJIC No. 2.11.5] would get closer to the heart of the matter if, instead
of the [words ‘discuss or give any consideration’], the phrases ‘speculate upon’ or ‘guess
at,’ or words to that effect were substituted.” (Ibid.)

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 Even so, the Fonseca court held that the instruction at issue “sufficiently conveys
the idea that the intent is only to prohibit idle speculation, not to prevent consideration of
pertinent evidence.” (Fonseca, supra, 105 Cal.App.4th at p. 550.) The Fonseca court
held the giving of CALJIC No. 2.11.5 was not error when given in a trial where an
unjoined coperpetrator testifies. (Fonseca, at p. 550.) Shortly after Fonseca was
decided, the California Supreme Court came to the same conclusion, finding that giving
CALJIC No. 2.11.5 was “not error when it is given together with other instructions that
assist the jury in assessing the credibility of witnesses.” (People v. Crew (2003)
31 Cal.4th 822, 845.)
Appellant’s claim is not only precluded by Crew, as we explain, it is further
weakened by the fact that CALCRIM No. 373 excludes the potentially problematic
phrase this court in Fonseca pointed out as “short of optimal.” By substituting the phrase
“discuss or give any consideration” with “speculate about,” as this court suggested would
make the instruction clearer, there is even less of a possibility that the jury would read
CALCRIM No. 373 as disallowing them from considering the full spectrum of factors in
evaluating witness credibility. This substitution further underscores it is clear that “the
intent [of the instruction] is only to prohibit idle speculation, not to prevent consideration
of pertinent evidence.” (Fonseca, supra, 105 Cal.App.4th at p. 550.)
Further, the jury was properly and thoroughly instructed on witness and
accomplice testimony, which, under Crew, eliminates any potential of misuse of
CALCRIM No. 373. The jury was instructed they could consider “anything that
reasonably tends to prove or disprove the truth or accuracy of that testimony,” including
whether the testimony was influenced by bias or prejudice or a personal interest in how
the case is decided, whether the witness made a statement inconsistent with his or her
testimony, and whether the witness was promised immunity or leniency in exchange for
his or her testimony. (CALCRIM No. 226, italics added.) The jury was also instructed
that before they considered Gonzalez’s and Guzman’s testimony, they must decide

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whether Gonzalez and/or Guzman were accomplices to the crime. (CALCRIM No. 334.)
They were instructed a person is an “accomplice” if they are subject to the prosecution
for the identical crime charged against the defendant. The jury was further instructed that
someone is subject to prosecution if he or she personally committed the crime or knew of
the criminal purpose of the person who committed the crime and intended to and did in
fact aid, facilitate, promote, encourage, or instigate the commission of the crime. The
jury was instructed that if they determined Gonzalez and/or Guzman were not
accomplices, the jury should evaluate their testimony as they would any other witness.
They were instructed if they found Gonzalez and/or Guzman were accomplices, they
could not rely on their testimony alone to convict appellant. Further, Gonzalez’s
immunity agreement was entered into evidence for the jury’s consideration. The jury was
also instructed that they must pay careful attention to all of the instructions and consider
them together. (CALCRIM No. 200.)
While CALCRIM No. 373 is a general instruction that tells the jurors not to
speculate as to why potential participants are not being prosecuted, the instructions on
how to evaluate witness and accomplice testimony are specific. The specificity of the
application of the witness and accomplice testimony instructions would have made clear
to the jury they could consider Gonzalez’s and Guzman’s possible involvement with the
crime on their credibility. It is unlikely that, after reading and considering the
instructions together, the jurors would have understood CALCRIM No. 373 as instructing
them to disregard elements of how to evaluate witness and accomplice testimony. We
find the jury would have known, based on the totality of the instructions, they could
consider why a witness was not being prosecuted in determining credibility.
For the foregoing reasons, we find no error in the court’s instructing the jury with
CALCRIM No. 373. Accordingly, we also find none of appellant’s constitutional rights
have been violated.

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 B. The Court’s Response to the Jury Question About Special
Circumstances of Murder
While deliberating, the jury submitted a written question which read: “If there is
1 special circumstance that is not unanimous[,] can there still be a 1st degree murder
conviction[,] or do all 5 special circumstances need to be agreed upon for a murder
1 conviction”?
The court gave the jury a written response without objection that stated: “If there
is one special circumstance that is not unanimous, there can still be a first degree murder
conviction. Not all five enhancements need to be agreed upon for a first degree murder
conviction. [¶] Please see CALCRIM instructions 520 and 521.”
Appellant contends the jury’s question demonstrated confusion about the order in
which the jury should have made its findings. He contends for this reason the trial
court’s response to the jury was incomplete and should have included a reference to
CALCRIM No. 700,5 which “made clear that the special circumstance allegations were
only to be determined after they reached a unanimous verdict on first degree murder.”
Appellant contends the alleged error requires reversal under the Sixth and Fourteenth
Amendments.
Respondent argues that because appellant did not object to the court’s response
below this issue is forfeited. Appellant acknowledges he did not object below but

5 CALCRIM No. 700 reads:
“If you find the defendant guilty of first degree murder, you must also decide
whether the People have proved that one or more of the special circumstances are true.
“The People have the burden of proving each special circumstance beyond a
reasonable doubt. If the People have not met this burden, you must find the special
circumstance has not been proved. You must return a verdict form stating true or not true
for each special circumstance on which you all agree.
“In order for you to return a finding that a special circumstance is or is not true, all
12 of you must agree.
“You must consider each special circumstance separately.”

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contends we may review the error because of the substantive rights it implicates. In the
alternative, appellant contends his trial counsel provided ineffective assistance of counsel
by failing to object.
Because appellant contends the alleged error affected his substantial right to a
proper jury finding of every element of the offense and enhancements beyond a
reasonable doubt, we decline to decide the issue based on forfeiture or ineffective
assistance of counsel. In any event, appellant’s claim fails.
We apply “the abuse of discretion standard of review to any decision by a trial
court to instruct, or not to instruct, in its exercise of its supervision over a deliberating
jury.” (People v. Waidla (2000) 22 Cal.4th 690, 745–746.) “The court has a primary
duty to help the jury understand the legal principles it is asked to apply.” (People v.
Beardslee (1991) 53 Cal.3d 68, 97.) During jury deliberations “when the jury ‘desire[s]
to be informed on any point of law arising in the case … the information required must
be given.’ ” (People v. Brooks (2017) 3 Cal.5th 1, 97.) “However, ‘[w]here the original
instructions are themselves full and complete, the court has discretion … to determine
what additional explanations are sufficient to satisfy the jury’s request for information.’ ”
(Ibid.)
Here, it appears to us that the jury’s question above all else demonstrated a
confusion between first degree murder theories and special circumstances. This is based
on the jury’s reference to there being “5 special circumstances” in their note. The court’s
response began to correct this confusion by differentiating between terms; the court
explained that if one “special circumstance” is not unanimous, there can still be a first
degree murder conviction, but that not “all five enhancements need to be agreed upon for
a first degree murder conviction.” (Italics added.) The court’s referring the jury to
CALCRIM Nos. 520 and 521 would have further alleviated this confusion.
By referring the jury to CALCRIM Nos. 520 and 521, the court reminded the jury
of the elements that must be proven for first degree murder in contrast to second degree

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murder, underlining that agreement that a first degree murder theory had been proven was
a requirement for a first degree murder conviction. CALCRIM No. 520 explained the
elements of murder. CALCRIM No. 521 explained the elements set forth in CALCRIM
No. 520 were for second degree murder. CALCRIM No. 521 explained that appellant
was being prosecuted for first degree murder on two theories: deliberation and
premeditation and lying in wait. The jury was instructed they needed to unanimously
agree appellant committed first degree murder but did not need to unanimously agree on
the theory. These two instructions would have underscored for the jury that they needed
to decide on whether appellant committed murder and whether the murder was of the first
degree by deciding whether the elements of a first degree murder theory had been proven.
The jury would have also understood from being pointed to these instructions that the
elements of the special circumstances alleged were not elements of murder or first degree
murder and could correctly infer they needed to be decided upon separately.
The court did not abuse its discretion by answering the jury’s question in the
manner it did; none of appellant’s constitutional rights were violated.
DISPOSITION
The judgment is affirmed.

DE SANTOS, J.
WE CONCUR:

PEÑA, Acting P.J.

MEEHAN, J.

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