1

Filed 7/11/16 P. v. Mendez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. DAVID MENDEZ, Defendant and Appellant. E064249 (Super.Ct.No. FWV1303835)

OPINION

APPEAL from the Superior Court of San Bernardino County. Mary E. Fuller, Judge. Affirmed with directions. Richard A. Levy, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, and Allison V. Hawley, Deput y Attorneys General, for Plaintiff and Respondent.2 I

INTRODUCTION

Defendant David Mendez and his cohort , Jorge Esteban Cisneros, entered a check

cashing business where Cisneros shot the clerk in the chest while defendant seized $600

from the cash drawers a s the victim lay dying

. Security cameras recorded the

coordinated attack . Defendant claimed Cisneros forced him to participate by threaten ing him at gunpoint. The jury rejected the defense of dure s s and convicted defendant of premeditated

murder and second degree robbery. (Pen. Code, § § 187, sub d . (a) , and 211.) 1 The jury

also found true , with respect to both counts , that a principal was armed with a firea r m within the meaning of section 12022, subdivision (a)(l) , and , with respect to count 1 , that

the murder was committed while engaged in the commission of a robbery within the meaning of section 190.2, subdivision (a)( 1 7). T he court sentenced defendant to life in
prison without the possibility of parole. 2
On appeal, the People agree with defendant’s argument that the trial court f ail ed to instruct the jury properly , based on CALCRIM No. 703, on the elements of the special

circumstance that defendant committed the murder while engaged in the commission of a robbery, a finding that per mitted the court to impose life in prison without parole. However, the People argue the error was harmless because of overwhelming evidence

1 All statutory references are to the Penal Code unless stated otherwise.

2 After being convicted, Cisneros was also sentenced to life without parole on April 14, 2016.3

defendant intended to kill or was a major participant who acted with reckless indifference

to human life.

Defendant next argues that the trial court fail ed to instruct the jury sua sponte on
the defense of necessity and erred in admitting impeachment evidence and other types of incriminating evidence

. We reject these contentions. Finally, the People agree with

defend ant that his parole revocation restitution fine should be stricken a s an unauthorized

sentence because defendant was sentenced to life without parole. Subject to this modification, we affirm the judgment.

II

STATEMENT OF FACTS

A. Prosecution’s Evidence

Defendant and Cisneros were good friends and coworkers at Clariant
Corporation. 3 Cisneros was a gun enthusiast

. Coworkers described him as aggressive

and obnoxious. I n April 2013, Jose Mendez , a coworker, noticed defendant and Cisneros handling a handgu n in the locker room

. When Jose asked them why they were “ doing stupid stuff , ” d efendant stuffed the gun in his waistband under his shirt

. In rebuttal, Jose

testified that , the day a fter Jose reported the incident to his supervisor , defendant and

Cisneros confronted him. Specifically, defendant said, “ Just watching here. When it ’ s your time, it ’ s your time. ” Jose reported that defendant had bullied Jose’s stepson, who

also worked at Clariant

.

3 At work, defendant was known as Johan Samayoa and Cisneros was known as Jorge Esteban.4

Both Cisneros and defendant had asked coworkers for l oans. Cisneros was struggling financially and he was a customer of Check ‘ n Go , a payday loan business, in

Chino

. The store manager, Virgil Ross, testified that, o n November 14, 2013, Cisneros came into the store at closing time

. Vaness a Mar t inez , an employee, told him he did not qualify for a modified loan. Cisneros complained to Ross , asking i f Ross was “too good”
to greet him . Cisneros left the store, driving a black Nissan Altima. Defendant told a coworker he was living from paycheck to paycheck. On the morning of November 15, 2013, defendant asked a nother coworker if he could borrow a

hundred dollars to avoid a $25 insurance late fee

. Later that day, Cisneros and defendant left work for lunch

. T hey arrived at the

Check ‘ n Go a fter 1:15 p.m. Martinez was the only employee because Ross, t he

manager , had left for lunch. The front door was locked, which was the business practice. Martinez was on the phone , talking with Anthony Lagos, the manager of an Upland

Check ‘ n Go

. Lagos heard Martinez s cream and then a loud thump. He hear d Martinez moaning in pain and two male voices speaking in Spanish. One was saying, “ Over there.

Over there. ” The other voice ask ed , “ There? ” Lagos immediately called the police on
another line

. In t he security videos , Cisneros approaches the door of the business and Martinez push e s a button to allow him entry as she talks on the phone

. Cisneros , who is barefaced,

hold s the door open as defendant , wearing a mask, comes into the frame and both men
move inside. W ith defendant behind him , Cisneros walk s up to the front counter and ,5

before Martinez can take any evasive action, Cisneros fir es a gun at her chest at close

range

. Defendant i s still several feet behind Cisneros during that time.

A fter Cisneros fi res , defendant sprint s around the counter and rummage s through

several drawers while Cisneros remain s on the other side of the counter, point ing to
various locations. Martinez fall s from her chair and l ies on the floor, lift i ng her head repeatedly while defendant s tep s over her body to search the drawers. Cisneros then

turn s and walk s out of the store ahead of defendant

. After defendant finishe s searching
the drawers, he r uns out of the store.

A t no point does Cisneros point a weapon at defendant

. Defe ndant does not try to leave when he is following behind Cisneros. Defendant took $600 from the cash

drawers. Martinez died at the scene. A witness in a nearby car observed defendant, wearing a blue dust mask , walk quickly around the corner of the Check ‘ n Go, and g et into the passenger side of a black

Altima. Defendant and Cisneros returned to work at a r ou nd 1 :45 p.m. Ross, the store manager, identified Cisneros as the customer from the night before. Jorge Villegas, who worked with Cisneros and defendant , recognized Cisneros on the news and reported him to the police. Villegas also recognized defendant’s Boston Red

Sox hat and the blue mask as one they typically wore at work. A nother coworker recognized defendant as the mask ed man in the video. During a search of the Clariant building, officers found the handgun used in the shooting inside a cereal box. A t Cisneros ’ s work station , officers found a hat like he6

wore in the video. I n defendant’s truck , o fficers also found a hat like defendant wor e in

the video.

When defendant was interviewed the day after the shooting , he denied

involvement but responded, “ If I were in a tough situation financially, perhaps I can do

this. But I ’ m not. I ’ m financially okay. ” He also contended that, if he had committed

such a crime, he would have fled.

I n a phone call from jail to his wife, defendant recounted going to lunch with

Cisneros ; stopping “ to do a quick job ” ; Cisneros cocking the hammer of the gun ; entering

the store ; and searching the drawers. Defendant told h is wife he was in the video but

claimed there was little evidence against him because his face was covered. A detective

testified that defendant also discussed the payment of an insurance premium with his

wife.

B

. Defense Case

One of the coworkers testified that, a few weeks before the shooting, Cisneros had
borrowed $200 from him. O n the day of the shooting , Cisneros and defendant inv ited him to join them for lunch. Defendant appeared normal all morning but seemed quiet and

nervous when he returned from lunch. The afternoon of the shooting, the coworker

over heard defendant talking about needing to visit Washington state

. Another coworker described Cisneros as having an unpredictable demeanor and sometimes angrily snapping at people. He saw Cisneros bring a weapon to work several
times, and Cisneros’s fixation on guns and violence was well

- known. The coworker also7

received phone calls from Cisneros ’ s debt collectors. Defendant had said that he needed

money.
Defendant testified in his own defense. He claimed that, at the time of the shooting, his bills were up to date, he was not in debt, and that he had not asked anyone for money. He admitted that he was the masked man in the video. Despite Cisneros ’ s reputation, de fendant regularly went out to lunch with him and played soccer with him

after work. On the day of the shooting, defendant initially declined to go to lunch with

Cisneros because his wife had packed his lunch but he eventually agreed. While t hey

were in Ci sneros's car , Cisneros stopped to cash a check. D efendant asked Cisneros why

he was putting on gloves. Cisneros responded that they were going to perform a “ small job, ” a robbery, and then leave. When defendant refused to go inside, Cisneros

threatened him with the gun. Cisneros forced him to wear the mask

. Defendant was
silent and feared for his life. Defendant refused to move until Cisneros stood behind him with the gun.

After t hey entered the store , there were two gunshots , and defendant grabbed the

money. Once they exite d , defendant ran to the car and handed Cisneros the money

. The n the y returned to work.

Defendant was concerned for his family ’s safety and afraid to report the incident.
After work, he picked up a pizza and went home. H e was arrested the next day

. Defendant explained his denials to police by saying that he w as not sure if Cisneros had8

been detained, and he was still afraid for his family. Detective Acuna testified in rebuttal
that, defendant was told in his initial interview that Cisneros was in custody. Although defendant admitted the April 2013 incident in which he tucked a gun in

his waistband , he denied that the gun belonged to him. He also denied asking a coworker for money. He kn ew that Cisneros was preoccupied with guns and violence

. He acknowledged that he could have outrun Cisneros but he claimed he was afraid that Cisneros would shoot him in the parking lot. Defendant did not consider running away or calling for help.

Defendan t also acknowledged that Cisneros held the door open for him before he

entered the business and that, after the shooting , defendant immediately went behind the counter to get the money. Defendant did not call for help and he stepped on the dying

victim’s hair while collecting the money.

III

INSTRUCT ION ON FELONY MURDER SPECIAL CIRCUMSTANCE
In an oral motion for a new trial, defense counsel noted that the trial court did not instruct the jury with CALCRIM No. 703

. He explained that the prosecution had presented two theories for count 1

— first degree murder based on malice and first degree felony murder

— and that it was not clear on which theory the jury relied. If the jury had relied on a felony murder aiding and abetting theory, CALC RIM No. 703 would have required the jury to make findings on the special circumstance as to defendant’s level of

involvement and intent in committing the murder. Defense counsel further argued that, although defendant was involved in an armed robbery that resulted in death, he did not9

necessarily have the requisite intent and involvement to support the special circumstance finding

. In response, the prosecutor argued that, unlike in cases involving a getaway driver,

defendant’s substantial role in these cri mes was overwhelmingly clear from the videos. The prosecutor argued that defendant’s conduct and use of a mask indicat ed planning and preparation. Defendant did not hesitate or indicate any surprise about the murder.
Instead, he immediately ran to ransa ck the drawers

. The court denied defendant’s request
for a new trial, finding there was no doubt defendant was a major participant. On appeal, t he People agree with defendant’s argument that the trial court failed to

instruct the jury properly, based on CA L CRIM No. 703, that if the jury convicted

defendant of murder under the theory of felony murder, it could only return a true finding on the specia l circumstance if it further found that he either intended to kill or was a major partic ipant and he acted with reckless indifference to human life

. Failure to

instruct that a nonkiller, under the felony

- murder special

- circumstance allegations, must (1) have personally had the intent to kill or (2) have been a major participant in the

commis sion of the burglary or robbery and have acted with reckless indifference to

human life is error : “ In order to support a finding of special

- circumstances murder, based on murder committed in the course of designated felonies, against an aider and abettor who is not the actual killer, the prosecution must show either that the aider and abettor

had intent to kill (§ 190.2, subd. (c)) or acted with reckless indifference to human life while acting as a major participant in the underlying felony. (§ 190.2, sub d. (d).) ”
( People v. Bustos (1994) 23 Cal.App.4th 1747, 1753.)10

Instead, the parties focus their argument on whether t he error was harmless

. The People argue that the court’s federal constitutional error was harmless beyond a
reasonable doubt and “no reasonable jury, properly instructed

. . . would have failed to find” the missing element. ( People v. Osband (1996) 13 Cal.4th 622, 682.) The People

contend the overwhelming evidence demonstrated that defendant and Cisneros jointly

coordinated and e xecuted the robbery and murder and defendant intended to kill.

A ccording to the People, the surveillance video s show that defendant and Cisneros “acted as a choreographed team throughout the course of the r obbery.” Defendant responds that participating in a robbery is not evidence of intent to kill, or even of knowledge that the

other participant intended to kill , citing People v. Banks (2015) 61 Cal.4 th 788, 807. Section 190.2, subdivision (d), provides in pertinent part that “ e very person, not

the actu al killer, who, with reckless indifference to human life and as a major participant,
aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission

of [an enumerated] felony [including robbery,] which results in the death of som e person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole. ” Both parties rely heavily on the Banks case, which holds: “ Th e statute thus imposes both a special actus reus requirement, major participation in the crime, and a specific mens rea requirement, reckless indifference to human life. ” ( People v. Banks ,
supra, 61 Cal.4th at p. 798.) With respect to the mental aspect of culpability, section 190.2, s ubdivision (d) , looks to whether a defendant knowingly engaged in a crime carr ying a grave risk of11

death. ( People v. Banks, supra , 61 Cal.4th at p. 801.) He “ must be aware of and willingly involved in the violent manner in which the particular offense is committed, demonstrating reckless indifference to the significant risk of death his or her actions

create. ” ( Ibid. ) Thus, the special circumstance may be applied to those who

“ ‘ subjectively appreciated that their acts wer e likely to result in the taking of innocent

lif e. ’ ” ( Id. at p. 802, quoting Tison v. Arizona (1987) 481 U.S. 137 .)

W e hold that , a lthough the trial court erred by not giving CALCRIM No. 703 to the jury, the error was harmless : “ [W]hen a trial court fails to instruct the jury on an element of a special circumstance allegation, the prejudicial effect of the error must be

measured under the test set forth in Chapman v. California (1967) 386 U.S. 18, 24

. [Citations.] Under that test, an error is harmle ss only when, beyond a reasonable doubt, it

did not contribute to the verdict. ” ( People v

. Williams (1997) 16 Cal.4th 635, 689.) Section 190.2 and CALCRIM No. 703 protect some aiders and abettors from sentences of

death or life in prison without parole f or felony murder convictions. I n this case , however, the video s and other evidence overwhelmingly showed defendant was a major participant who acted with reckless indifference to human life.

In Banks , the defendant Matthews was sentenced to life in prison without the possibility of parole

. Matthews was the getaway driver in an attempted armed robbery

that resulted in a killing. Matthews had helped plan the robbery with two other gang
members

. ( People v. Banks, supra , 61 Cal.4th at p. 796.) However, Ban ks was not present at the attempted robbery and shooting and there was no evidence that he intended for the robbery to result in a killing. ( Id. at p p . 805 , 807 .) The perpetrator ’ s killing12

appeared to be a spontaneous response to resistance from the vict im. ( Id. at pp. 795

- 796.) Under those facts, the California Supreme Court found there was insufficient evidence that Matthews was a major participant or that he acted with reckless indifference to human life for purposes of the special circumstance for a n aider and abettor to felony
murder under section 190.2, subdivision (d). ( Id. at pp. 805

- 811.)

Banks described a spectrum of conduct that may make a defendant eligible for a special circumstance. ( People v. Banks, supra, 61 Cal.4th at pp. 794, 811.) T he pertinent

considerations include : “ What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of pa rticular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her o wn actions or inactions play a particular role in the death? What did the defendant do after lethal force was used? ” ( Id. at p. 803.) Applying the Banks factors, t he present case did not involve a n unexpected shooting or a defendant who was not present a t the scene

. Instead, defendant participated in the entire sequence of events from beginning to end

. Before they entered the store,

defendant kn ew Cisneros was armed and prone toward violence

. Defendant wore a

mask. T he video s clearly showed defendant’s active involvement

. Defendant did not object, hesitate, or run before Cisneros shot Martinez, even though he was behind

Cisneros most of the time . I nstead, defendant instantly began searching the drawers for13

money. He showed no concern for M artinez as she was dying and fled without trying to help her

.
T he only opposing evidence was defendant’s own testimony, which the jury rejected

. Furthermore, w e reject defendant’s argument that , because defendant had invited a coworker to go to lunch with Cisneros and him , there was evidence that

defendant di d not know that a robbery and a murder had been planned. “Our task, then,

is to determine ‘whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element

. ’ ” ( People v. Mil (2012) 53 Cal.4 th
400, 417 , quoting Neder v. United States (1999) 527 U.S. 1, 19 .) Whatever defendant knew before he went to lunch, the evidence supports that by the time he entered the door

of the business he knew a mur der , or a grave risk of death , was in the offing. No

“ rational juror, given proper instructions, could have had a reasonable doubt whether

defendant was subjectively aware of a grave risk of death when he participated in this burglary and robbery

. ” ( Mil, at p. 419.) We conclude n o evidence could rationally support defendant’s claim of not knowing what might happen that day. On appeal, defendant argues that he may have intended to commit robbery but the

murder was u nexpected. However, if the court had instructed the jury with CALCRIM
No. 703, that instruction was not consistent with the duress theory that defendant presented. As a result, there is simply no possibility that the instruction would have

resulted in a verdict more favorable to defendant

. The evidence against him was overwhelming, strong, and consistent . T hus, the court ’ s instructional error was harmless14

beyond a reasonable doubt. For the same reasons, defendant has failed to show that the court abused its discretion by denying his motion for a new trial.

IV

INSTRUCTION ON NECESSITY Defendant also argues t he trial court err ed by not giving sua sponte the jury

instruction on necessity , an instruction he did not request

. Defendant contends that the jury may have rejected his duress defense b ecause Cisneros ’ s alleged threat lacked immediacy. Therefore, an alternative instruction on necessity would have allowed the jury to find defendant’s participat ion in the robbery was justified by his fear of future harm to himself or his family. We disag ree. “ [T]he defense of necessity, or choice of evils, traditionally covered the situation where physical forces beyond the actor ’ s control rendered illegal conduct the

lesser of two evils. ” ( U

. S

. v. Bailey (1980) 444 U.S. 394, 410 ; People v. Lovercamp
( 1974) 43 Cal.App.3d 823 , 831

- 832.) This defense is generally recognized when a defendant is charged with committing any criminal act except the taking of an innocent

human life. ( People v. Pena (1983) 149 Cal.App.3d Supp. 14, 22; People v. Slack (1989) 210 Cal.App.3d 937, 940

- 942.)

The defense of necessity involves six elements: (1) the act charged as criminal must have been done to prevent a significant evil; (2) there must have been no adequate
alternative; (3) the harm caused must not be dispropo rtio nate to the harm avoided; ( 4) the

accused must entertain a good

- faith belief that his act was necessary to prevent the greater harm; (5) his belief must be objectively reasonable under all the circumstances;15

and (6) the accused must not have substantially contributed to the creation of the

emergency. ( P eople v. P ena, supra, 149 Cal.App.3d Supp. at pp. 25

- 26; CALCRIM No.
3403.) The necessity defense was inconsistent with defendant’s theory of duress. In his trial testimony, defendant stated that Cisneros p ointed the gun directly at him and he

feared for his life. On appeal , he argues that he had time to consider his options and form

the intent to commit the acts. Necessity is different from duress because, with duress, the immediacy of the threat negates an element of the crime

— the intent to commit the act.
( People v. Heath (1989) 207 Cal.App.3d 892, 901 .) By contrast, the necessity defense contemplates a threat that gives the defendant time to consider alternative courses of

conduct. ( Ibid. ) Thus, “ [n]ecessity does not negate any element of the crime, but represents a public policy decision not to punish such an individual despite proof of the

crime. ” ( Ibid. ) D efendant could not have argued that he both did and did not have the requisite intent. I ndeed, “ to require trial courts to ferret out all defenses that might possibly be shown by the evidence, even when inconsistent with the defendant ’ s theory at trial, would not only place an undue burden on the trial courts but would also create a potential of prejudice to the defendant. ” ( People v. Barton (1995) 12 Cal.4th 186, 197.) Furthermore, defendant’s evidence does not justify an instruction on necessity. A

trial court ’ s sua sponte duty to instruct on defenses not asserted b y the defendant is

limit ed. ( People v. Barton , supra, 12 Cal.4th at p. 197 .) A trial court has a sua sponte duty to instruct regarding a defense if s ubstantial evidence support s the defense and it is

not inconsistent with the defendant ’ s theory of the case. ( People v. Montoya (1994) 716

Cal.4th 1027, 1047.) In deciding whether there is substantial evidence, the trial court does not make credibility determinations. ( People v. Salas (2006) 37 Cal.4th 967, 982.) On appeal, the court determines whether the evidence was sufficient such that a reasonable jury, accepting all the evidence as true, could find the defendant ’ s actions justified by necessity. ( People v. Slack, supra , 210 Cal.App.3d at p. 941.)

We conclude defendant did not meet his b urden to present sufficient evidence to support the necessity defense

. In order to establish the necessity defense, there must be

an emergency , a showing of imminent harm or a threat in the immediate future

. ( People

v. Galambos (2002) 104 Cal.App.4th 1147, 1163 , fn. 7.) Defendant presented no evidence of a significant and imminent evil ; t here was only evidence of a direct immediate threat against defendant that he would be immediately shot if he did not participate in the armed robbery and murder. The jury rejected the duress defense

.
T here was no evidence of any other threatened harm. Specifically, there was no
evidence t hat Cisneros threatened to harm defendant or his family after the robbery or
that defendant did not have adequate legal alternatives. ( People v. Pena, supra, 149 Cal.App.3d Supp. at pp. 25

- 26.) Instead, the video showed that defendant entered the store after Cisneros, which gave him an opportunity t o flee. The robbery occurred at a strip mall in the middle of the day , giving defendant a chance to escape. Thus, s ince

defendant had the ability to flee, seek help, and call the police, he did not present evidence that there was no reasonable legal alternative to participating in an armed robbery and murder. The necessity defense fails if there was a reasonable, lega l17

alternative to violating the law. ( People v. Galambos, supra, 104 Cal.App.4th at p. 1164 ; People v. Kearns (1997) 55 Cal.App.4th 1128, 1135 .)
In addition, defendant presented no evidence that participating in the armed robbery create d a lesser danger : “ An important factor of the necessity defense involves the balancing of the harm to be avoided as opposed to the costs of the criminal conduct. ”
( People v. Heath, supra , 207 Cal.App.3d at p. 901.) S everal courts have found that the necessity defense is i nappropriate when “ its recognition would encourage rather than

deter violence. ” ( People v. Kearns, supra , 55 Cal.App.4th at p. 1135 ; People v.
McKinney (1986) 187 Cal.App.3d 583, 587 ; P eople v. Velasquez (1984) 158 Cal.App.3d

418 .)
In this case, the armed robbery created a far greater danger than any speculative

threat to defendant’s family. Defendant chose unhesitatingly to participate in an armed robbery and murder and now seeks to justify his decision

. But, as other courts have recognized, permitting the necessity defense based on sheer speculation would encourage

rather than deter violence

. Furthermore, e ven if defendant subjectively believed that armed robbery and

murder were necessary, d efendant presented no evidence that his belief was objectively

reasonable

. ( People v. Pena, supra , 149 Cal.App.3d Supp. at pp. 25

- 26.) T here was no

evidence of a threat against defendant’s family, defendant had the opportunity to flee, and

his subjective and speculative fears did not outweigh the greater danger invo lved in armed robbery. Therefore, defendant failed to show that his belief in the need to commit these crimes was objectively reasonable.18

F inally, any error was harmless beyond a reasonable doubt because the evidence

of defendant’s guilt was overwhelming. ( Chapman v. California , supra, 386 U.S. at p.
24.) T he evidence established defendant was financially strapped, suggesting a motive. The jury viewed and evaluated the crime video s , which showed defendant wore a mask

and acted without hesitation. He showed no surprise or concern while he grabbed money
from the drawer s. He did not report the murder and he tried to deny his involvement.

There was also no reason why Cisneros needed defendant’s assistance to commit the

crimes

. He could easily have taken the money after killing the clerk. Because the jury rejected defendant’s version and because overwhelming evidence foreclosed the necessity defense, any error was harmless.

V

IMPEACHMENT

Defendant testified that, in his initial interview with polic e, he did not c laim

Cisneros had threatened him b ecause he was afraid that Cisneros might harm him or his family : “ I couldn ’ t open my mouth until I was sure that they had detained Mr. Cisneros. ”

On cross

- examination, h e testified that he “ would have told them everything ” if the police had told him that Cisneros was already in custody. He also asserted that the police

informed him “ when we had finished the interview. ” The prosecutor rebutted

defendant’s testimony by having an officer testify that defenda nt was told about

Cisneros ’ s arrest during the course of the interview and not at the conclusion

. A prosecutor ’ s use of a defendant ’ s post

- Miranda silence violates federal due

process because “ it is fundamentally unfair to use post

- Miranda silence against the19

defendant at trial in view of the implicit assurance contained in the Miranda warnings that exercise of the right of silence will not be penalized. [Citation.] ” ( People v. Coffman and Marlow (2004) 34 Cal.4th 1, 65 ; Doyle v. Ohio (1976) 426 U.S. 610, 618

. )

A prosecutor may not use the defendant ’ s invocation of his right to remain silent or refusal to answer questions as evidence against him. ( People v. Champion (2005) 134 Cal.App.4th 1440, 1448.)
However, “ Doyle does not apply t o cross

- examination that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced

to remain silent. As to the subj ect matter of his statements, the defendant has not

remained silent at all. ” (

Anderson v. Charles (1980) 447 U.S. 404, 408 .) In addition, there is no violation of due process when the prosecutor ’ s reference to defendant ’ s postarrest silence was, in context, a fair response to defendant ’ s claim or a fair comment

on the evidence. ( People v. Champion, supra, 134 Cal.App.4th at p. 1448.)

Defendant has not show n that the prosecution ’ s impeachment of his trial testimony

was wrong under Doyle

. F irst, Doyl e does not apply because defendant did not invoke his right to remain silent

. (See Anderson v. Charles , supra, 447 U.S. at p. 409.) Instead,

defendant testi fied about his police interview and the prosecutor used the impeachment

evidence to rebut defendan t’s trial testimony. For that reason, defendant’s “silence” was not used against him . De fendant has not shown that the prosecutor took unfair advantage of his exercise of his right to remain silent. ( People v. Champion, supra , 134 Cal.App.4th at pp. 1450

- 1451.)20

Finally, any error was harmless beyond a reasonable doubt. (See People v. Champion, supra , 134 Cal.App.4th at p. 1453, applying Chapman v. California , supra , 386 U.S. at p. 24.) As already discussed, the evidence of defendant’s guilt was

over whelming. He admitted his presence and participation, and his duress claim was

inconsistent with all of the other evidence and extremely improbabl e

. E ven without the

officer’s rebuttal testimony, defendant admitted that he was told of Cisneros ’ s arrest a t
the end of the interview but he did not then tell “everything.” E ven if the trial court erred by allowing the r ebuttal testimony, the error was harmless beyond a reasonable doubt.

VI

EVIDENCE OF GUN

It was not an abuse of discretion to admit evidence about defendant and Cisneros handling a gun in April

. That evidence was clearly relevant because it showed that the relationship between the men involved guns. It was not ineffective assistance of counsel not to object to that evidence.

Evidence is rele vant when it has any tendency to “ prove or disprove any dispute d fact that is of consequence to the determination of the action. ” (Evid. Code, § 210.) Nonetheless, the court may, in its discretion, “ exclude evidence if its probative value is

substantiall y outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of und u e prejudice, of confusing the issues, or of misleading the jury. ” (Evid. Code, § 352.) “‘ Prejudice ’ in [Evidence Cod e] section 352 does not refer simply to evidence that is damaging to the defendant. Instead,

‘“ [t]he ‘ prejudice ’ referred to in Evidence Code section 352 applies to evidence which21

uniquely tends to evoke an emotional bias against the defendant as an indiv idual and

which has very little effect on the issues

. ”’ [Citation.] ” ( People v. Smith (2005) 35
Cal.4th 334, 357.) A trial court has wide discretion in determining the relevance of evidence and

whether the probative value of evidence outweighs its possible prejudicial effect.
( People v. Chatman (2006) 38 Cal.4th 344, 371 ; People v. Sassounian (1986) 182 Cal.App.3d 361, 402.) “ An appellate tribunal is not authorized to substitute its judgment for that of the trial judge. ” ( People v. Stewart (1985) 171 Cal.App.3d 59, 65.)

“ [D]iscretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered. ” ( Ibid. ) The trial court properly exercised its discretion when it admitted the evidence of the April gun incident

. The trial court held that the incident was “ still relevant to the two

of them acting together with a gun in November ” in spite of who actually handled the

gun. The relationship between defendant and Cisneros was highly relevant, particularly

since defendant claimed that Cisneros suddenly and unexpectedly ordered him at gunpoint to participate in a robbery. Regardless of who brought the gun to work, the two clearly shared an interest in guns. Thus, this evidence was relevant to defendant’s

relation ship with Cisneros, his knowledge of Cisneros ’ s interests and actions, and the absence of any mistake by defendant

. (Evid. Code, § 1101, subds. (b) & (c).) Although
defendant was not the shooter, that fact has little bearing on whether he and Cisneros

ha ndled guns together, evidence which tended to rebut defendant’s claim that he was a n22

unwilling participant in the crimes. T he trial court ’ s decision did not exceed the bounds

of reason.
Furthermore, defendant forfeited his argument that the prior gun incident was unduly prejudicial because he failed to raise that objection in the trial court. ( People v. Champion (1995) 9 Cal.4th 879, 918, overruled on other grounds in People v. Combs
(2004) 34 Cal.4th 821, 860

. ) Here, defendant only raised a relevance objection to the prior gun incident evidence. He did not object under Evidence Code sections 352 or 1101, nor did he raise a due process objection. Therefore, he has forfeited these claims on appeal.

Notwit hstanding forfeiture, d efense counsel may have had a reasonable, tactical purpose for not objecting

. The Sixth Amendment to the United States Constitution and
article I, section 15 of the California Constitution guarantee criminal defendants the right

to effective assistance of counsel. ( People v. Bonin (1989) 47 Cal.3d 808, 833.) The burden of proving ineffective assistance of trial counsel lies with the defendant who challenges the judgment. ( People v. Haskett ( 1990) 52 Cal.3d 210, 248.) D efendant

mu st demonstrate deficient performance as well as prejudice under the federal and state

Constitutions. ( Strickland v. Washington (1984) 466 U.S. 668, 687

- 695 ; People v.
Osband , supra, 13 Cal.4th at p. 700.)
We presume “ that counsel rendered adequate assistance and exercised reasonable professional judgment in making significant trial decisions. ” ( People v. Holt (1997) 15
Cal.4th 619, 703.) Defendant must show trial counsel ’ s representation fell “ below an objective standard of reasonableness. ” ( Peop le v. Bolin (1998) 18 Cal.4th 297, 333.) If23

the record on appeal does not contain an explanation for the challenged action or omission, the reviewing court must reject a claim of deficient performance unless counsel failed to provide an explanation when a sked or there could be no satisfactory explanation

for counsel ’ s conduct. ( People v. Mendoza Tello (1997) 15 Cal.4th 264, 266; People v. Osband, supra , 13 Cal.4th at pp. 700

- 701.)
Here, d efense counsel may have recognized that , b y arguing that the evidenc e was irrelevant, he presented his strongest argument and maintained credibility with the court.
In addition, s ince this incident , which occurred over six months earlier , was the only

other evidence of defendant handling a gun, counsel could have portrayed the prosecutor

as “ grasping at straws ” and the evidence would do minimal damage

. Therefore,

defendant has not shown that counsel was deficient for not raising a prejudice objection.
Furthermore, the gun inciden t evidence was not unduly prejudicial

. ( People v.

Davis (1995) 10 Cal.4th 463, 515

- 516.) The defendant must show a “ reasonable probability that counsel ’ s omission resulted in a less favorable verdict ” ( People v. Wash
(1993) 6 Cal.4th 215, 271) or “ so und ermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. ” ( Strickland v. Washington , supra, 466 U.S. at p. 686.) “ ‘ If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed. ’ ”
( In re Fields (1990) 51 Cal.3d 1063, 1079.) The gun evidence merely showed that defendant and Cisneros had previously

handled a gun together at work. The evidence did not involve any gun use , violence, or24

threats. T he evidence did not “ ‘“ uniquely tend[] to evoke an emotional bias against the

defendant. ” ’” ( People v. Smith, supra , 35 Cal.4th at p. 357.) Errors in admitting evidence are harmless under People v. Watson (1956) 46

Cal.2 d 818, 836 unless there is a reasonable probability that the defendant would have

received a more favorable result without the error. ( People v. Alcala (1992) 4 Cal.4th
742, 770.) H ere, defendant has not shown any p robability of a more favorable result

without this evidence. T he evidence against defendant was overwhelming, and the only issue in dispute was whether defendant committed the crime under duress , regardless of whether the jury knew defendant handled a gun six months before. Defendant has not

shown a reasonable probability of a different result without the evidence.

VII

OTHER EVIDENCE In his telephone conversation to his wife while in jail, defendant tried to explain what had happened. In the translat ed version , he stated: “ so since my face is not uncovered, they doesn ’ t [ sic ] have much. They have me here because he said it was me , but let him put

— let him

— as deep as he can in my case, so the videos of everyone, everything

— everything, so that they see that, take away the two charges. [Emphasis
added.] ” After a bench conference, the court told the jury, “ [T]he statements that were just read to you, there are statements that [ defendant ] makes referring to what other people said. Those statements are not being offered for truth of those statements, only as

to defendant ’ s state of mind concerning those statements. Unless he specifically adopts

them as his statements. ” It is not clear who defendant means in the phrase “he said it was25

me.” Nevertheless, defendant claims that “ he ” referre d to Cisneros, that the statement was inadmissible hearsay, that the statement violated the Confrontation Clause, and that

the court ’ s instruction not to consider the statement for the truth of the matter was inadequate. Hearsay is “ evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. ” (Evid.
Code, § 1200.) Out

- of

- court statements that are not offered for their truth are not hearsay

under California law a nd do not violate the confrontation clause. ( People v. Ervine
(2009) 47 Cal.4th 745, 775

- 776 ; Crawford v. Washington (2004) 541 U.S. 36, 60 , f n. 9 .)

Statements that are “ admitted to supply meaning to defendant ’ s conduct or silence ” in the

face of accusat ory statements, rather than for their truth, do not constitute inadmissible hearsay. ( People v. Combs, supra , 34 Cal.4th at p. 842; Evid. Code, § 1221.) T hese adoptive admissions are admissible when (1) the party has knowledge of the content of

another ’ s hearsay statement, and (2) the party uses words or conduct indicating adoption

or belief in the truth of the statement. ( Combs, at p. 843.) Trial court rulings regarding the admissibility of evidence are reviewed for abuse

of discretion. ( People v. Alva rez (1996) 14 Cal.4th 155, 203.) This court independently

reviews a trial court ’ s determination that evidence did not violate the defendant's rights

under the Confrontation Clause. ( People v. Johnson (2007) 150 Cal.App.4th 1467,
1478.)

The trial court di d not abuse its discretion by admitting defendant’s recitation of the accusation against him by an unidentified person

. T he purpose of this evidence was26

not to prove who had accused defendant

. The issue was how defendant responded to that

accusation. As the prosecutor argued, “ [I]t would be an implied admission

. ” R ather than denying his presence at the scene of the crime, defendant acknowledged the truth of the statement, and it became an adoptive admission. ( People v. Combs, supra, 34 Cal.4th at p. 843.) In addition, because the statement was not admitted for its truth, it did not

violate the Confrontation Clause. ( People v. Ervine, supra, 47 Cal.4th at p. 776.) Even if the court erred by admitting the statement, the error was harmles s under any standard. If admission of hearsay statements violated a state statute alone, this court applies the standard articulated in People v. Watson, supra, 46 Cal.2d at page 836, and reverses only if there is a reasonable probability of a result more favorable to the

defendant in the absence of the error. ( People v. Duarte (2000) 24 Cal.4th 603, 618

- 619.)

If the error violated defendant’s Confrontation Clause rights, this court determines whether the error was harmless beyond a reasonable doubt. ( C hapman v. California ,
supra, 386 U.S. at p. 24.)
Defendant’s defense was duress, and he admitted that he was the other person in

the video. Therefore, any statement that “ he said it was me, ” regardless of who “ he ” was, could not have had any impact on the verdict

. T he statement had no bearing on whether

defendant was acting under duress . T he video itself provided overwhelming evidence

that defendant willingly participated in the crimes. Any error in admitting this statement

was harmless under any standa rd. Defendant also objects to the admission of defendant’s false name, Johan Samayoa, because the jurors might have speculated that he was not a legal citizen . T he27

trial court permitted those witnesses who knew defendant by that name to identify him as

s uch. We hold defendant has not shown that the trial court abused its discretion or that he was deprived of a fair trial and that any error was harmless

. The trial court properly exercised its discretion by admitting evidence of

defendant’s false name for purposes of identification. Many of the relevant witnesses in

the trial knew defendant as Johan Samayoa. In addition, as the prosecutor argued,

defendant’s character witnesses did not know him well enough to know his real name,

which was relevant to their credibility . T he trial court also properly exercised its discretion by finding that the relevance of defendant’s false name was not “ substantially outweighed ” by the danger of undue prejudice. (See Evid. Code, § 352.) Except that he

re quired an interpreter, w hether defendant was known as Samayoa or Mendez, both Hispanic surnames, there was nothing in the record one way or the other about

defendant’s status as a citizen

. In any event, t o prove a deprivation of federal due process rights , defendant “ must satisfy a high constitutional standard to show that the erroneous admission of evidence

resulted in an unfair trial. ” ( People v. Albarran ( 2007) 149 Cal.App.4th 214, 229 .)

There was no direct evidence regarding defendant’s citizenship a nd his false sur name was
mentioned only twice in identifying him . Defendant failed to show that admission of his false last name rendered his trial so arbitrary and fundamentally unfair that it violated federal due process. Any error was also harmless unless there is a reasonable probability

that the defendant would have received a more favorable result without the error.28

( People v. Alcala, supra , 4 Cal.4th at p. 770.) T he evidence of defendant’s guilt was overwhelming . H is false sur name had no bear ing on the verdict.

VIII

DISPOSITION We reject all defendant’s claims of prejudicial error. Therefore, we reject his

contention of cumulative error as well. ( People v. Anderson (2001) 25 Cal.4th 543, 606 .) We agree with the parties that the unauthorize d parole revocation restitution fine
should be stricken. ( People v. Carr (2010) 190 Cal.App.4th 475, 482 .) We order the

clerk of the superior court to prepare an amended abstract of judgment to be forwarded to the Department of Corrections and Rehabilitation. In all other respects, we affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON J.

We concur:

McKINSTER Acting P. J.

MILLER J.