1 Filed 7/10/14 P. v. Thomas CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent,

v. RONALD D. THOMAS, Defendant and Appellant. A137389
(Alameda County Super. Ct. No. 164261)

Appellant Ronald D. Thom as was tried before a jury and convicted of second degree murder with special allegations based on his use of a firearm. (Pen. Code, §§ 187, 12022.5, subd. (a), 12022.53, subds. (b), (c) & (d).) 1 He contends the judgment must be
reversed because his trial atto rney provided ineffe ctive assistance of counsel in several respects. He also argues the trial court erred in giving CALCRI M No. 371, regarding consciousness of guilt based on efforts to discourage testimony, and suggests the
cumulative effect of the trial e rrors in this case require reve rsal even if they were not individually prejudicial. We affirm.

I. FACTS AND PROCEDURAL HISTORY Alvin Burns was fatally shot on the ni ght of November 20, 2009. The Alameda County District Attorney file d an information charging appe llant with murder (§ 187) and alleging he had persona lly and intentionally discharged a firearm and caused great bodily

1 Further statutory references are to th e Penal Code unless otherwise indicated.2 injury and death (§ 12022.53, subd. (d)), ha d personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and had personally used a fi rearm (§§ 12022.53, subd. (b), 12022.5, subd . (a)). At his jury trial, a ppellant was tied to the shooting primarily through the testimony of two eyewitnesses, Z.T. and P.L. 2 Sixteen-year-old Z.T. and he r teenage cousin P.L. met appellant, known as “D,” in the fall of 2009. P.L. was being choked by a man on 88th Street in Oakland and appellant came to her rescue. He was carryi ng a small silver gun. The girls went to appellant’s house that night and Z.T. saw him a few times after that. Appellant and Z.T. spoke on the phone “probably every other day.” On the night of November 20, 2009, ab out a month after meeting appellant, Z.T. and P.L. were celebrating the birthday of Alvin Burns. Af ter going to a McDonald’s restaurant and dropping anothe r friend at his home, Burns and the girls decided to meet Tielee P, who lived at 88th Street and Ma cArthur Boulevard near the Youth Uprising center. At the time, Tielee was Z.T.’s boy friend and P.L.’s “bes t friend.” Burns was driving his Honda sedan, with P.L. riding in the front passenger seat, and Z.T. in the back passenger seat. Burns parked the car near Tielee’s ap artment building with the engine still running. It was dark outs ide but there was light from a streetlight. After about 10 minutes, Z.T. noticed appellant walking by a nd said something about seeing “D.” P.L. recognized appellant and called out to him. Appellant approached the passenger side of
the car to see who was inside , leaned in to the open back passenger window, and said “What’s up?” in a confrontational manner. Bu rns looked at appellant “like he didn’t know him.” Appellant was wearing gold gr ills on his teeth and a diamond earring in his
left ear. The car began to roll and appellant accused Burns of trying to run over his foot. Appellant pulled a gun from his hi p and shot Burns in the back of the head. As far as Z.T. knew, appellant and Burns did not know each other.

2 P.L. was declared unavailable as a witness and her preliminary hearing testimony was read to the jury . (Evid. Code, § 1291.)3 The car came to a stop against the curb across the street, in front of the Youth Uprising building. Burns was slumped in the seat. Blood was everywhere. P.L. unsuccessfully attempted to pu ll Burns’s foot from the gas pedal but was unable to do so, so she pulled the key from the ignition. Tielee approached the car and told P.L. to keep talking to Burns to see if he could hear her. Tielee told her appellant was the shooter and had been taking drugs and was drinking. Police were dispatched to the scene of the shooting. Burns was taken to the hospital, where he later died of a gunshot wound to the head. An expended bullet was
found on the floor of the car in front of th e driver’s seat and a spent .40-caliber casing was found in a gutter across the street, indicat ing the weapon used was a semiautomatic. No weapons were found in Burns’s car. Z.T. and P.L. gave written st atements at the scene, but they did not say they knew the shooter. They were placed in different pa trol cars and taken to the police station for questioning, where they were separately inte rviewed. Z.T. seemed antagonistic and
scared and did not want anyone to know she was at the po lice station. P.L. seemed upset
and withdrawn. Z.T. held ba ck at first because she was sc ared, but eventu ally she told police it was appellant who had shot Burns. P. L. was afraid of retaliation if she identified the shooter, and did not give ap pellant’s name at first. Sh e eventually admitted she knew the shooter and identified appellant. Both girls selected appellant’s picture from a photographic lineup. A few days after the shooting, officers a pproached appellant to arrest him as he was leaving a movie theater. Appellant ran down a ravine behind the theater, but was taken into custody after he tripped and fell. He was wearing a diamond earring in his left ear and officers found a set of gold grills and a cell phone in his pants pocket. A second cell phone, later associated with appellant, wa s found about 30 to 45 feet away. Police searched the home of appellant’s girlfriend, who was with him at the time of his arrest, and found a birth certificate, Social Security card, and an identification card for the Youth Uprising center, all in appellant’s name.4 Cell phone records showed that calls were made fro m appellant’s and Z.T.’s phones near the time of the mu rder that utilized the same cell phone tower, suggesting the phones were in the same ar ea, though other calls made from Z.T.’s phone during that time frame utilized a different, nearby tower. The records also showed calls were made from appellant’s cell phone to Z.T.’s cell pho ne that same night after the shooting in which the caller from appellant’s phone bloc ked the number. Calls were made from Z.T.’s phone to appellant’s phone between 4:25 a.m. and 6:11 a.m. on November 22,
2009. P.L. told police she received a threaten ing call a couple of days after the shooting from a woman with a high-pitched voice who said, “Bitch, you are going to die.” The voice sounded similar to one of the bystander s who helped them at the scene after the shooting. P.L. was 100 percen t positive appellant was the sh ooter. She did not talk to Tielee after the shooting. Z.T did not receive any threats, though appellant and other people called her. She had not answered her cell phone because sh e did not want to ta lk about what had happened. She liked appellant as a friend and thought both he and Burns were nice people. Z.T. had not spoken to Tielee sin ce the shooting. She had no doubt appellant
was the shooter. After giving an opening statement sugg esting the evidence would show appellant was not at the scene of the crime, defens e counsel called a single witness, DeAnna Ashorobi, who testified appellant was a frie nd of her daughter’s and she had known him since he was 15 years old. Ashorobi had never heard of a ppellant being violent and had never known him to carry a gun. She belie ved him to be a “goo d kid,” mild mannered and respectful. However, she had not heard appellant owned and carried guns; she had not heard he had been involved in fight s with a gang; she had not heard of his involvement in a kidnapping; sh e had not heard appellant’s fa ther and others held the kidnapping victim and fired shots at the vic tim’s boyfriend when he arrived to retrieve the victim; and she had not heard appellant held the kidnapping victim at gunpoint and
threatened her when he rele ased her. If she had heard ab out the kidnapping and gun5 possession, it would affect her opinion and she wo uld assume he was violent if he went to jail or prison for such conduct. Ashorobi had heard about the current homicide, but this did not alter her opinion beca use appellant had not been fo und guilty and she did not see him as the kind of person who w ould shoot someone in the head. The jury was instructed on first and second degree murder and the firearm enhancement allegations. It acquitted appellant of first degree murder, convicted him of second degree murder, and f ound the enhancement allegations to be true. Prior to sentencing, the court granted ap pellant’s motion to relieve his retained trial attorney and substitute new retained coun sel. This attorney filed a motion for new trial, asserting the trial attorn ey had provided ineffective assi stance of counsel in several respects, including (1) presen ting an opening statement prom ising an alibi defense that never materialized; (2) calling Ashorobi as a character witness, knowing she would be impeached with highly prejudici al “have you heard” questions about prior criminal acts and possession of firearms by appellant; and (3) failing to object to CALCRIM No. 371 regarding consciousness of guilt and th reats to a witness by a third party. 3
The trial court denied the motion. It st ated it had some concerns with the defense strategy of calling Ashorobi as a character w itness, but that overall, some positive things came from her testimony in that she tended to humanize appellant. And, though the court had “significant concerns” and was “bothered” about the decision to go forward with an opening statement promising an alibi defense, any error was harmless in light of the very strong and believable testimony by Z.T., wh ich was corroborated by the preliminary hearing testimony of P.L., and the jury’s ve rdict of second, rather than first degree murder. The court noted if appellant tes tified and offered an alibi defense (as he apparently wished to do before his trial attorney convinced hi m not to take the stand), he would have been impeached by prior statements to the po lice as well as prosecution

3 Other instances of ineffective assistance were alleged but are not germane to this appeal, including the failure to object to prej udicial hearsay evidence regarding Tielee P’s statements, the failure to deve lop evidence regarding Tielee P’s role in the shooting, and the failure to adequately cha llenge prosecution evidence regard ing the cell phone records.6 witnesses who would have show n the substance of the alibi was “based on lies.” As to counsel’s failure to object to CALCRIM No . 371 regarding consci ousness of guilt and threats to a witness by a third party, the cour t recounted its discussion of the instruction
with counsel and indicated the instruction was appropriate. Appellant was sentenced to prison for 40 years to life, consisting of a term of 15 years to life on the second degr ee murder count plus a consecutive term of 25 years to life for the finding he had intentionally and pe rsonally discharged a firearm causing death under section 12022.53, subdivision (d).

II. DISCUSSION
A. Ineffective Assistance of Counsel Appellant argues his trial attorney provid ed ineffective assist ance of counsel in three respects: (1) promising an alibi defe nse during opening stat ement on which he did not deliver, (2) calling a character witness th at opened the door to cross-examination
about whether the witness had heard a number of damaging and prejudicial facts about appellant, and (3) failing to object to hear say evidence regarding threats made to the victims. We conclude reversal is not required.

1. Ineffective Assistance—General Principles and Standard of Review
A criminal defendant has a federal and state constitutional right to the effective assistance of counsel. To prevail on a claim of incompetent counsel, a defendant must establish by a preponderance of the evidence that counsel’s representation fell below an objective standard of reasonableness and it is reasonably probable, but for counsel’s error, the result of the proceeding would have been different. ( Strickland v. Washington (1984) 466 U.S. 668, 686-688, 694-695 ( Strickland ); People v. Ledesma (1987) 43 Cal.3d 171, 215-218; see U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15.) In resolving an ineffectiv e assistance claim, we give great deference to counsel’s reasonable tactical decisions and indulge in the “ ‘ “strong presumption that counsel’s conduct falls within the wide range of r easonable professional assistance.” ’ ” ( People v.
Hinton (2006) 37 Cal.4th 839, 876 .) “ ‘ “[C]ourts should not second-guess reasonable, if7 difficult, tactical decisions in the harsh light of hindsight.” ’ ” ( Ibid .) If the record on appeal does not shed light on why counsel acted or failed to act, we reject a claim of
ineffective assistance unless counsel was aske d for an explanation and failed to provide
one or there could be no re asonable explanation. ( People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
Because a defendant must establish both in competence and prejudice, a court need not decide the issue of counsel’s alleged de ficiencies before deciding if prejudice occurred. ( People v. Rodrigues (1994) 8 Cal.4th 1060, 1126 ( Rodrigues ).) In assessing prejudice, a reasonable probability that th e result would have be en different is a probability sufficient to undermine confidence in the outco me, that is, “whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” ( Lockhart v. Fretwell (1993) 506 U.S. 364, 372.)
A claim of ineffective assistance of co unsel may be raised in a motion for new trial under section 1181, even though it is not one of the statutorily enumerated grounds. ( People v. Callahan (2004) 124 Cal.App.4th 198, 209 ( Callahan ).) When, as here, the
trial court has denied a motion for new trial ba sed on an ineffective assistance claim, we apply the standard of review applicable to mixed questions of law and fact, upholding the trial court’s factual findings to the extent th ey are supported by substantial evidence but reviewing de novo the ultimate question of whether the facts established demonstrate a violation of the right to effective counsel. ( People v. Taylor (1984) 162 Cal.App.3d 720, 724-725 ( Taylor ).) 4

4 This standard differs from the abuse of discretion standard applicable to orders granting a motion for new trial based on ineffec tive assistance of counsel or denying a motion for new trial on statut ory grounds not implicating a constitutional right. (See People v. Lightsey (2012) 54 Cal.4th 668, 729 [applyi ng abuse of discretion standard to denial of motion for new trial based on various grounds]; People v. Ault (2004) 33 Cal.4th 1250, 1262 [abuse of discretion is standard for order granting new trial motion; different considerations may appl y to orders denying new trial]; Callahan
, supra , 124 Cal.App.4th at p. 201 [same]; People v. Albarran (2007) 149 Cal.App.4th 214, 224, fn. 7 [discussing different standards of review an d noting independent review required of order denying new trial when significant c onstitutional issue is implicated].)8 2. Factual Backgr ound—Claims (1) & (2) Appellant’s first two claims of ineffec tive assistance of co unsel arise from the following facts. During the hearing on motions in limine, the prosecutor indicated he had just learned about appellant’s participation in a kidnapping orchestrated by appellant’s father several months before the shooting. The co urt granted the prosecutor’s motion to allow (1) cross-examination of any character witness called by the defense with “have you heard” questions relating to the kidnapping (see People v. Marsh (1962) 58 Cal.2d 732, 745 [it is “within the ambit of proper cross-ex amination of a characte r witness to inquire, in good faith, whether the w itness has heard of specific misconduct of the defendant
inconsistent with the trait of character testifie d to on direct”]); and (2) extrinsic evidence of the kidnapping incident to impeach a ppellant’s credibility should he testify (see People v. Cadogan (2009) 173 Cal.App.4th 1502, 1509 [past criminal conduct involving moral turpitude that has some logical bearing on veracity is admissible for impeachment]; People v. Zataray (1985) 173 Cal.App.3d 390, 399-400 [kidnapping is crime of moral turpitude admissible for impeachment purposes]). At the beginning of the trial, defense counsel indicated he would reserve his opening statement and present it at the close of the prosecution’s case-in-chief. After the prosecution rested its case, defense coun sel gave the following opening statement: “Good afternoon, everyone. I’m going to give you a brief opening st atement. You have heard a lot of evidence so far, but you haven’t heard the whole case yet. My client is not guilty of any of these charges. He is pres umed innocent until all th e evidence comes in.
And when all this evid ence comes in, the People will not have met their burden to prove beyond a reasonable doubt that Mr. Thomas is the person that shot the victim in this case.
The witness—it will come out th at the witnesses are not cred ible; that Mr. Thomas was not present. They have to prove to you that Mr. Thomas was present at the scene, not in
or about the area of the scene. He has to be there, actually be the one doing the shooting. That’s not going to pan out in this evidence. The charge here is murder in the first degree. Someone did in fact from the evid ence you know kill Alvin Burns, but it was9 not—the prosecution will not be able to show that it was my client because he was
elsewhere. He was not at the scene of the crime. That’s what the evidence will show. Thank you.” After giving this opening statement, defe nse counsel called Ashorobi as a witness, who testified about appellant’s nonviolent char acter on direct examination. Ashorobi was then asked a series of “have you heard” qu estions during cross-examination regarding appellant’s involvement in the prior ki dnapping, his possession of guns, and his involvement in a fight with a gang. She indi cated she had heard none of these things, but if they were proved they would change her opinion about appellant’s character. When Ashorobi’s testimony was complete, defense counsel asked to approach the
bench and advised the court he did not want appellant to te stify as planned because he would be questioned by a “skilled cross-ex aminer” and his test imony would likely be impeached with evidence about the prior kidn apping. Defense counsel asked for more
time to discuss the matter of testifying with appellant. Court was adjourned for the day and the following morning, defense counsel rested without calling any additional
witnesses.
3. Opening Statement Promising Alibi Defense Appellant argues his trial attorney was in effective in making an opening statement in which he promised to present an alibi defe nse. Case law has recognized the failure of counsel to produce evidence pr omised to the jury during ope ning statement may support a claim of ineffectiveness of counsel. ( McAleese v. Mazurkiewicz (3d Cir. 1993) 1 F.3d 159, 166.) “The rationale for holding such a failure to produ ce promised evidence
ineffective is that when counsel primes the jury to hear a di fferent version of the events from what he ultimately presents, one may in fer that reasonable ju rors would think the witnesses to which counsel referred in his ope ning statement were unwilling or unable to deliver the testimony he promised.” ( Id . at pp. 166-167; see People v. Corona (1978) 80 Cal.App.3d 684, 725.) That said, an attorn ey may have valid tactical reasons for changing strategy during trial, and promisi ng certain evidence du ring opening statement10 and then electing not to presen t that evidence is not ineff ective assistance per se. ( People
v. Burnett (2003) 110 Cal.App.4th 868, 884-885.) Defense counsel’s opening statement su ggested the jury wo uld hear evidence appellant was somewhere other than the sc ene of the crime when Burns was shot. Apparently, counsel still believed appellant woul d testify and present an alibi defense. But the reasons counsel gave the court shor tly after his decision to try to dissuade appellant from taking the stand (the expertise of the prosecutor as a cross-examiner and the prejudice that would result from impeach ment evidence regarding the kidnapping)
were known from the outset of the trial. We share the trial court’s concern about defense counsel’s decision to suggest an alibi defense when it appears he should have known at the time of the opening statement it would be improvident for appellant to testify. 5 Ultimately, though, we need not resolve whether counsel’s actions fell beyond the range of reasonable trial tactics because any e rror in making the opening statement was harmless. ( Strickland
, supra , 466 U.S. at pp. 694-695; Rodrigues
, supra , 8 Cal.4th at p. 1126.) The decision to forgo alibi testimony by appellant himself is not challenged on appeal and appears reasonable in light of the potential fo r impeachment with highly prejudicial informatio n about the prior kidnapping. There is no suggestion any other witness could have given tes timony supporting a persuasive a libi defense. Absent any evidence of an alibi, the cruc ial issue for the jury to reso lve was whether Z.T. and P.L. were credible when they identif ied appellant as the shooter. The trial court, which presided over th e entire case and observed the demeanor of the witnesses firsthand, found Z. T. to be “as good or better than any other witness I have
ever seen. There were some times when she cried on the witness stand. She did not seem to be pandering her answers to one side or th e other. . . . And when you look at her

5 In a declaration submitted with the moti on for new trial, appellant stated he and his trial attorney had agreed before the trial began that appellant would testify, and the issue was not revisited until the day counsel ga ve his opening statement, when he urged appellant not to take the stand.11 answers what, at first, seem ed to be inconsistent answ ers, depending on who was asking the question, ultimately showed to be quite consistent, that her te stimony was consistent throughout, front to back, and as each attorney asked about a different aspect, her answer might have changed because she was answeri ng that question. An d ultimately it was
clarified that at the time that the shot was fired, she was looking down, but she recognized Mr. Thomas’ voice, and Mr. Thomas [’] voice was not the voice that she heard for the first time that day, but someone who she had a significant amount of contact with in the months before that, a lot of telephone c ontact. She didn’t seem to me to be siding
with one side or the other. She seemed to me to be a pe rson who had positive feelings toward Mr. Thomas, as well as positive feelings towards the victim in this case. Her identification of Mr. Thomas was very strong. . . . It was very certain. It was based on having known Mr. Thomas for some period of time, having recognized him from a distance away, having recognized him walking toward the vehicl e . . . .” The court also noted P.L. “overwhelmingly co rroborated” Z.T.’s testimony in material respects. “The fact that there are two percipient witnesse s who had preexisting re lationships with the
defendant who both affirmativ ely and positively and 100 perc ent identified the defendant as the shooter, that’s very strong evidence indeed.” Finally, the court observed the identification was further corroborated by ce ll phone records showing appellant was in the general area of the shootin g, by the gold grill found on his person at the time of his arrest, and by his Youth Uprisi ng membership card that wa s found at his girlfriend’s
house. Substantial evidence supports the trial c ourt’s determination Z.T. was a credible witness, and we defer to that finding. ( Taylor
, supra , 162 Cal.App.3d at p. 726.) Her persuasive testimony, corroborat ed by the other evidence described by the trial court, identified appellant as the shooter. Once the jury determined appella nt was the shooter, the jury’s only realistic choices were firs t or second degree murder. It convicted appellant of the lesser of these two offenses. Though defense counsel’s ope ning statement alluded to an alibi defense that was not ultimately presented, it fo cused more on the credibility of prosecution witnesses and12 made no promise that any partic ular defense witness would tes tify. It is not reasonably probable appellant would have secured an acquittal had defense counsel refrained from making his opening statement or limited its contents to an attack on witness credibility, even if such a strategy would have been preferable in hindsight. ( Strickland
, supra , 466 U.S. at pp. 694-695.) 4. Calling Ashorobi as a Character Witness Appellant contends defense counsel wa s ineffective in calling Ashorobi as a character witness, knowing she would be cr oss-examined with a series of “have you heard” questions about a “lita ny of unsavory behavior on appellant’s part.” The decision to call a particular witness is generally a matt er of trial tactics “unless the decision results from unreasonable failure to investigate.” ( People v. Bolin (1998) 18 Cal.4th 297, 334.) The decision to call Ashorobi does not appear to be the product of ignorance on the part of defense counsel, who knew in advan ce she could be impeac hed by the “have you heard” questions. Even assuming the tactical decision to call Ashorobi was unreasonable, appellant has failed to demonstrate prejudice for the reas ons stated in the prece ding section of this opinion. Given the evidence presented, and th e strength of Z.T.’s testimony in particular, there was very little potential for a verdict othe r than first or second degree murder. The jury chose the lesser of these options, showing it was not unduly swayed by the prosecutor’s references to the prior kidna pping and possession of firearms. The trial court specifically instructed the jury it coul d not consider the prosecutor’s questions for
the truth of the matters asserted. 6 Though, as appellant notes, the prosecutor referred to this line of cross-examination during closi ng argument, the jury was instructed the

6 “Ladies and gentlemen, I’m going to gi ve you a limiting instruction. You just heard a series of questions on cross-examinat ion that started with, ‘Have you heard.’ Now, those questions and the answers I’m or dering you to limit you r consideration of that to the credibility of the character witness. You’re not to consider the substance of those questions and answers for the truth of th e matter asked from the question. So those questions and all those answers simply go to your evaluation of the credibility or believability of this character witness and you r evaluation of her opin ion. Okay? There is no evidence before you relate d to those other events.”13 attorneys’ remarks during opening statement and closing argument were not evidence. We presume the jury follo wed these admonitions. ( People v. Coffman and Marlow (2004) 34 Cal.4th 1, 83.) 5. Failure to Object to Hearsay The third instance of alleged ineffective assistance is based on trial counsel’s failure to object to hearsay statements on a re cording of the identific ations made by Z.T. and P.L. during the photographic lineups at the police station. In particular, appellant complains his trial counsel did not object to a conversation between the witnesses, their “caretaker,” and the detectives regarding the need to keep secret the witnesses’ locations, the phone calls made to Z.T.’s cell phone from appellant’s, what to do in case of future threats, and promises the w itnesses would be protected. The recording was admitted because it contained prior c onsistent statements under
Evidence Code section 1236 and prior identifications under Ev idence Code section 1238. Defense counsel did not object to the reco rding and stated he believed the discussion
about the witnesses’ safety was duplicative of eviden ce the jury had already heard regarding their fears. The c ourt ultimately interposed its own objection under Evidence Code section 352 and stopped the playing of the recording partway through because the court “started flipping ahead [in the transcript ], and what appeared to [the court] were there were long paragraphs in the transcript of the police ta lking, not very much of the witnesses talking,” which were not very probative of any of the issues in the case. Although some of the material excluded by the court might have been relevant for the nonhearsay purpose of showing the effect of the police officers’ statements on the witnesses and their credibility when they testified, we as sume, based on the court’s
decision to cut short the ev idence, it would have sustai ned a defense objection under
Evidence Code section 352. But for the same reason defense counsel decided not to object, we conclude any deficien cy in failing to do so was ha rmless. To the extent the
conversations showed Z.T. and P.L. were co ncerned about their safety and mentioned the calls from appellant’s phone to Z.T.’s, that information was al ready before the jury. To
the extent the officers offered advice about staying hidden and reporting any threats,14 those were the kind of statemen ts that would be expected in any murder investigation of this nature. No information about appella nt was offered by the officers, and their reassurances and general expre ssions of concern were unlikel y to have had any impact on the jury. Appellant has not shown it is reas onably probable he wo uld have obtained a more favorable verdict if the challenge d statements had been excluded. ( Strickland
, supra , at pp. 694-695.)
B. CALCRIM No. 371 Appellant argues he is entitled to reve rsal because the court gave CALCRIM No. 371 regarding consci ousness of guilt based on direct or indirect efforts to discourage testimony. We disagree. During her testimony, Z.T. described her fear of getti ng involved in the case and testified about calls made to her cell phone, which she did not answer because she did not want to talk. She also testified appellant had not threatened her. In light of this testimony, the court decided to give a lim iting instruction during the trial advising the jury it should not consider evid ence of threats against Z.T. unless appellant was linked to those threats. Defense counsel did not object, and the court instructed the jury as follows:
“We’ve had some evidence fro m a witness now, [Z.T.], relate d to witness intimidation or
fear of retaliation. Evidence related to whet her a witness feels intim idated or feels that they’ve been intimidat ed or that they have a fear of reta liation is relevant to the witness’s state of mind, attitude, actions, bias, prejudice or lack or presence thereof. [¶ ] Evidence
that a witness is fearful of retaliation relates to that witness’s cred ibility and is therefore
admissible. For this evidence to come before you it is not necessary to show that the threats against the witness, if there were any, were made by the defendant personally. For you to consider that ev idence as any sort of cons ciousness of guilt against the defendant, you are going to have to find th at the defendant either made the threats or authorized others to make the threats. [¶ ] I don’t know what the evidence is going to show in this case by the time we’re done with all of the evidence. I’m hearing it for the first time just as you are. Thus far I have not heard anything this morning that links any threats or intimidation to the defendant pe rsonally. You may have heard something I15 didn’t, I don’t know. Ultimately you are going to be the judges of the facts and will make these decisions. But at this point you should consider that eviden ce in evaluating the credibility of the witness only. You can’t hold it at this point against the defendant unless you first find that he either made the threats or authoriz ed the threats.” At the close of the case, the court gave a version of CALCRI M No. 371 regarding the suppression or fabrication of evidence an d consciousness of guilt: “If the defendant tried to hide evidence or discourage someon e from testifying agains t him, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its me aning and importance. However, evidence of such an attempt cannot prove guilt by itself. [¶ ] If someone other than the defendant tried to create false evidence, prov ide false testimony, or conc eal or destroy evidence, or discouraged someone from testifying, that co nduct may show the defendant was aware of his guilt, but only if the defendant was pres ent and knew about that conduct, or, if not present, authorized the other person’s actions. It is up to you to decide the meaning and importance of this evidence. However, eviden ce of such conduct cannot prove guilt by
itself.” Defense counsel objected to the first pa ragraph of CALCRIM No . 371, arguing no evidence had been pres ented to show appellant tried to hide evidence or discourage anyone from testifying. The court indicated th e jury could conclude appellant attempted to hide evidence by discarding a cell phone when he was arrested, and, while the
evidence was “on the weak side ,” it could also determine th e calls made from appellant’s phone to Z.T.’s phone after the shooting were efforts to discourage her from cooperating with the police. Defense counsel did not object to the second paragraph of the instruction, regarding threats by third parties, because evidence of one third-party threat had been presented and the instruction “set[ ] the bar kind of high for the prosecution” with respect to linking th at threat to appellant. The court did not err in giving CALCRIM No. 371. “A trial court properly gives consciousness of guilt instructions where ther e is some evidence in the record that, if believed by the jury, would sufficiently support the inferenc e suggested in the16 instructions.” ( People v. Bowman (2011) 202 Cal.App.4th 353, 3 66.) The calls to Z.T.’s cell phone and appellant’s apparent attempt to discard his own phone when fleeing from the police supported an instruction regarding atte mpts to suppre ss evidence and consciousness of guilt. The instruction wa s beneficial to the defense because its cautionary language admonished the jury to “circumspection regarding evidence that might otherwise be considered decisively inculpatory.” ( People v. Jackson (1996) 13 Cal.4th 1164, 1224; see People v. Holloway (2004) 33 Cal.4th 96, 142 [analyzing CALJIC No. 2.04, equivalent in struction to CACRIM No. 371].) We also conclude any error was harmless. If, as appellant contends, the evidence did not support CALCRIM No. 371, there is no reason to believe the jury would have
relied on that instruction in de termining guilt. The court had previously admonished the jury there was no evidence appellant had threatened Z.T., and no evidence linked appellant to the threatening call received by P.L. There is no reasonable probability the
inclusion of CALCRIM No. 371 ch anged the result of the trial, and any error in giving it was harmless under any standard. ( People v. Crew (2003) 31 Cal.4th 822, 849.)

C. Cumulative Error Appellant argues the errors cited above were cumulatively prejudicial and require reversal, even if they were i ndividually harmless. We disagree. To the extent we have assumed error for purposes of analysis, none of these errors increases the impact of any other and their cumulative impact did not depriv e appellant of a fair trial or the right to due process. ( People v. Thomas (2011) 51 Cal.4th 449, 508.)17 III. DISPOSITION The judgment is affirmed.

NEEDHAM, J.

We concur.

JONES, P.J.

SIMONS, J.