Filed 1/15/15 P. v. Xulu CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,

v.
THOMAS ALBERT XULU et al.,
Defendants and Appellants. B247575
(Los Angeles County Super. Ct. No. KA096351)

APPEAL from a judgment of the Superior Court of Los Angeles County, George Genesta, Judge. Affirmed. John Steinberg, under appo intment by the Court of Appeal, for Defendant and Appellant Thomas Albert Xulu. Jennifer Peabody, under appointment by th e Court of Appeal, for Defendant and Appellant Carlos Manuel Cervera. Allen G. Weinberg, under appointment by the Court of Appeal , for Defendant and Appellant Jose Roberto Guzman. Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Carl N. Henr y, Deputy Attorneys General, for Plaintiff and Respondent.2 INTRODUCTION Defendants and appellants Thomas Albert Xulu, Carlos Manuel Cervera, and Jose Roberto Guzman were jointly tried and found guilty of pr emeditated attempted murder and of shooting at an occupied vehicl e. Defendants’ primary issues on appeal concern: (1) the sufficiency of the evidence to su pport their convictions for the crimes as aiders and abettors; (2) alleged instruc tional error on aiding and abetting; (3) the admissibility of statements under Aranda-Bruton ; 1 (4) the admissibility of Cervera’s postarrest statement; and (5) prosecutorial misconduct. 2 Finding no reversible error, we affirm the judgment.
FACTUAL AND PROCED URAL BACKGROUND I. Factual background.
A. The shooting on December 7, 2011. On December 7, 2011, at approximatel y 8:45 p.m., Steven Lopez was at the
Metrolink train station in Baldwin Park. Near by, a gold or orange car was parked, but its lights and engine were on. Four people were in the car, two in front and two in back. The car’s rear driver-side passenger, who wore a Kings hat, yelled something that sounded like “king” or “clique” at Lopez. Thinking he was getting hit up by gang members, Lopez walked away. Ten to fifteen minutes late r, the car left, turning onto Downing. Lopez saw the orange car three to four minutes later, 3 but now a dark sport utility vehicle (SUV) was in front of it. The orange car pulled into the opposite lane of traffic so that it was alongside the SUV, and the orange car stayed there for about 30 seconds.

1 People v. Aranda (1965) 63 Cal.2d 518 ( Aranda ); Bruton v. United States (1968) 391 U.S. 123 ( Bruton ).

2 Each defendant joins the others’ arguments, to the extent applicable.

3 Lopez’s testimony is unclear whether he sa w it three to four minutes later or six to ten minutes later.3 While the orange car was alongside the SUV, Lopez heard two “popping” noises. The
SUV slowed for a bit but th en followed the orange car. At this same time, 9:00 p.m., Juan Ma drigal was in his black SUV in Baldwin Park, near the Metrolink station. He was on Pacific when an orange Toyota Matrix cut him off. The Matrix’s rear driver-side passenge r threw gang signs at Madrigal. Madrigal and the Matrix were on Bogart Avenue, wh en Madrigal heard gunshots. Angered, Madrigal followed the Matrix to get its lic ense plate number. Madrigal heard another gunshot, which hit his windsh ield and headrest. When Ma drigal heard the gunshot, he saw the Matrix’s rear driver-side passe nger stick his hand out of the window. Officer Joseph Cota saw Madrigal’s S UV and the orange car speeding, with Madrigal following the orange car. Officer Cota heard a loud bang, and then he saw the cars again. When he activated his lights, Ma drigal stopped, but th e orange car did not. Madrigal told Officer Cota that they were shooting at him. Madrigal was unsure how many people were in the car, but he thought it was full, and he told another officer that there were five people in the orange car.
B. The investigation and de fendants’ statements. Officer Adam Acuna drove with Madrigal to the areas where the incident took place. Outside defendant Xulu’s house, which was near the train station, Madrigal saw a
car that looked like the one involved in the sh ooting. Xulu told Officer Acuna that the car was his, 4 and he had the keys to the car in his pocket. Two unspent .45 caliber rounds
were recovered from the car’s back area. Xulu ’s sister told the o fficer that she saw the car at 9:15 p.m. going southbound on Downing. Detective Jeffrey Honeycutt, the investig ating officer, arrived at Xulu’s house after midnight on December 8, 20 11, approximately four hours after the shooting. Four men were in the garage, which was locked from the outside: defendant Cervera, defendant Guzman, Roger Mejia, and Erick Pineda. 5 Mejia wore a black Kings hat with

4 The car was registered to Xulu’s mother.

5 Cervera was 27; Guzman was 20 ; Mejia was 16; and Xulu was 18.4 a gray bill and a gray sweatsh irt. In the garage were .9 millimeter ammunition and a black LA Kings hat. In Mejia’s pants pocket were two live .9 millimeter rounds. Xulu, Guzman, and Cervera gave statemen ts to the police. Xulu admitted he drove the car and was a KHA gang member know n as Chaos. Guzman admitted he was in the backseat, although he did not specify where. Guzman also said he was a newly
initiated KHA member known as Sw ifty or Mex. When Offi cer Honeycutt asked Cervera if he was in the car, Cervera replied, “What am I supposed to do, sir? Am I supposed to jump out head first?” Pineda, who was not in the car, said that Cervera mentioned “shooting that guy” and bragged that he “dumped” —meaning shot at somebody. A bullet went through Madrigal’s front windshield and his headrest. A spent bullet was recovered from Madrigal’s car. An expended .9 millimeter casing and an expended .45 caliber casing were found in th e areas where the shootings occurred. The casings were fired from different guns, sugges ting that two guns were used to shoot at Madrigal. Madrigal had no weapons on him or in his car. Neither Madrigal nor Lopez was gang members.
C. Gang evidence. Detective Esteban Mendez, a gang expert, te stified for the People. Gangs use fear and intimidation to control their territory. Gang members go in to the territory of rival gang members to disrespect them by, for example, hitti ng people up or making their presence known. Influential gang members coordinate “missions” to commit crimes.
Each member involved in the mission has a responsibility ; for example, someone is the driver and another person holds the firearm or weapon. Th e person in possession of a
firearm runs from the car if there is a traffic stop.
There are different levels of status within a gang. At the bottom are associates or affiliates who want to belong to the gang and actively put in wo rk. Next are soldiers or soldados, who comprise the ma jority of gang members. Th e most influential members are shot callers. A gang member enhances his or her reputation within the gang by5 putting in work, that is , committing crimes. The more viol ent the crime, the more respect the gang member receives. Kings Have Arrived (KHA or K-HA or Ki ngs) is a Baldwin Park gang having
over 100 documented members in 2011. The Metrolink train station in Baldwin Park is in a disputed area. KHA began as a tagging cr ew but evolved into a gang in early 2000. Common identifying symbols include a “K” followed by anything associated with royalty, for example, a king, a joker or a cr own. KHA members wear Los Angeles Kings sports apparel. The gang’s primary activities are murder, a ttempted murder, assault with a deadly weapon, possession of firearms in public places, robbery, grand theft auto, and felony vandalism.
Detective Mendez first had contact with Xulu in February 2011, at which time Xulu admitted he belonged to KHA. Xulu and Cervera have a “K” extending from their
shoulders to elbows tattooed on their arms. Guzman has tattoos but Detective Mendez
could not determine that Guzman is a KHA member based on them. Guzman did admit
he was a KHA member when he was arrested . Mejia has a “K” written on his hand. Pineda, who was found in the ga rage with defendants, also has tattoos associated with
KHA. In Detective Mendez’s opinion, Xulu, Ce rvera, and Guzman are KHA members. Based on a hypothetical modeled on the facts of the case, it is the detective’s opinion that
such crimes would be committe d for the benefit of, or in association with, or at the direction of a criminal street gang. II. Procedural background. On February 8, 2013, a ju ry found defendants guilty of count 1, premeditated attempted murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a)), 6 and the jury found true principal gun use (§ 12022.53, subds. (b), (c) & (e)(1)) and gang (§ 186.22, subd. (b)1)(C)) allegations. The jury also found defendants guilty of count 2, shooting at an occupied vehicle (§ 246) and found true gang allegations (§ 186.22, subd. (b)(1)(B)).

6 All further undesignated statutor y references are to the Penal Code.6 On March 11, 2013, the trial court senten ced each defendant to 27 years to life in prison (7 years to life on count 1 plus 20 years to life for the gun enhancement under section 12022.53, subdivisions (c) and (e)(1)). The court stayed under section 654 the
sentences on count 2.
DISCUSSIO N
I. The evidence was sufficient to establish that defendants were liable as direct
aiders and abettors.
Guzman and Cervera contend there was insufficient evidence to support their convictions as aiders and abettors for pr emeditated, willful and deliberate attempted murder and for shooting at an occupied vehicle. 7 We disagree. Standard of review. In assessing the sufficiency of the evidence to suppor t a conviction, “we review
the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or specia l circumstances beyond a reasonable doubt. [Citation.] The record must di sclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant gu ilty beyond a reasonable doubt. [Citation.] In applying this test, we review the ev idence in the light most favor able to the prosecution and presume in support of the judg ment the existence of every fact the jury could reasonably
have deduced from the evidence. [Citation.] ‘Conflicts a nd even testimony [that] is subject to justifiable suspicion do not justif y the reversal of a ju dgment, for it is the exclusive province of the trial judge or jury to determine the credib ility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility i ssues nor evidentiary conflicts; we look for substantial evidence. [Citation.]’ [Citation.] A revers al for insufficient ev idence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial

7 Although Xulu (the drive r) has joined, to the extent applicable, any arguments raised by Guzman and Cervera, this issue requi res separate briefing. The issue therefore has not been adequately raised by Xulu, and we do not address it as to him.7 evidence to support” ’ the jury’s verdict. [Citation.]” ( People v. Zamudio (2008) 43 Cal.4th 327, 357; see also Jackson v. Virginia (1979) 443 U.S. 307; People v. Snow (2003) 30 Cal.4th 43, 66; People v. Perez (1992) 2 Cal.4th 1117, 1124.) The People’s theory of the case was Cervera and Gu zman aided and abetted the crimes of premeditated attempted murder an d of shooting at an occupied vehicle. “[P]roof of aider and abettor liability requires pr oof in three distinct areas: (a) the direct perpetrator’s actus reus—a cr ime committed by the direct perp etrator, (b) the aider and abettor’s mens rea—knowledge of the direct perpetrator’s unlaw ful intent and an intent to assist in achieving those unlawful ends, an d (c) the aider and abettor’s actus reus— conduct by the aider and abettor that in fact assists the achievem ent of the crime. [Citation.]” ( People v. Perez (2005) 35 Cal.4th 1219, 1225; see also People v. McCoy (2001) 25 Cal.4th 1111, 1116-1117; People v. Prettyman (1996) 14 Cal.4th 248, 259; § 31.) One who aids and abets an attempted murd er therefore must act “with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encourag ing or facilitating commissi on of, the offense.” ( People v.
Beeman (1984) 35 Cal.3d 547, 560, italics omitted; see also People v. Lee (2003) 31 Cal.4th 613, 623-624; People v. Smith (2005) 37 Cal.4th 733, 739.) An aider and abettor, however, need not personally act willf ully, deliberately and with premeditation to be guilty of premeditated attempted murder. ( People v. Favor (2012) 54 Cal.4th 868, 877; Lee , at p. 627.) Similarly, shooting at an occupied vehicle requires (1) acting willfully and maliciously and (2) shooting at an occupied vehicle. (§ 246; see People v.
Ramirez (2009) 45 Cal.4th 980, 985.) Factors that may be taken into account when determining whether a defendant was an aider and abettor are presence at the crime scene and compan ionship and conduct
before and after the offens e, including flight. ( In re Juan G. (2003) 112 Cal.App.4th 1, 5.) But mere presence at the scene of a crim e, knowledge of the perpetrator’s criminal purpose or the failure to prev ent the crime do not amount to aiding and abetting, although these factors may be taken into account in determining criminal responsibility. ( People v.8 Garcia (2008) 168 Cal.App. 4th 261, 272-273; People v. Nguyen (1993) 21 Cal.App.4th 518, 529-530.) “ ‘Whether defendant aided a nd abetted the crime is a question of fact, and on appeal all conflicts in the evidence and reasonable infere nces must be resolved in favor of the judgment.’ [Citation.]” ( People v. Campbell (1994) 25 Cal.App.4th 402, 409; In re Juan G. , at p. 5.) Cervera and Guzman argue th at the evidence shows only their “mere presence” in the car; it does not establish their intent or an y act they engaged in to further the crimes. Intent, however, is rarely susceptible of di rect proof and usually must be inferred from
the facts and circumstances surrounding the offense. ( People v. Pre (2004) 117 Cal.App.4th 413, 420.) Here, the evidence shows that Cervera and Guzman were with Xulu and Mejia at the Metrolink train sta tion. Lopez, the young man who was waiting for his train, saw Xulu’s car w ith four people in it. The re ar driver-side passenger called out gang challenges to Lopez. Xulu’s car remained idling for some minutes thereafter, but nobody took th e opportunity to get ou t of the car and disasso ciate himself from the gang challenge. (See In re Juan G., supra, 112 Cal.App.4th at p. 5 [companionship
before the offense is relevant to aider and abettor liability].) Instead, minutes later, the rear driver-s ide passenger of Xulu’s car threw gang signs at Madrigal. Xulu pulled into the oppos ite lane of traffic so that he could be alongside Madrigal, and a person or persons 8 in Xulu’s car shot at Madrigal. When Officer Cota activated the lights on his poli ce car, only Madrigal stopped. Xulu’s car sped away. True, Cervera or Guzman were not in control of the car. Cervera and Guzman, however, did not return to the scene of the crime, and instead were discovered hours after the shooting not fa r away, in Xulu’s locked ga rage with, among others, Mejia, who was also implicated in the crimes . Cervera’s and Guzman’s flight and companionship with Mejia and Xulu after the shooting show that they aided and abetted the crimes. ( In re Juan G., supra, 112 Cal.App.4th at p. 5; People v. Mason (1991) 52 Cal.3d 909, 941 [it is r easonable to infer consciousness of guilt from flight].)

8 Madrigal saw the rear driver-side passe nger put his hand out of the window when gunshots were fired.9 Also, as to Cervera, he “bragged” ab out the shooting to Pi neda, a fellow gang member who was also in Xulu’s garage. Cervera argues that hi s statements, made after the shooting, are irrelevant to his intent and knowledge prior to the shooting and to establishing that he engaged in conduct to promote the crimes. The jury, however, could have reasonably inferred that one does no t brag about an act one did not willingly participate in or approve of. In fact, Ce rvera’s bragging is consistent with the gang expert’s testimony that reputation is impor tant to individual gang members, and reputation is created by putting in work. Placing this crime in its gang context al so supports Cervera’s and Guzman’s liability as aiders and abettors. Membersh ip in a common gang may be relevant to motive and intent. ( People v. Garcia, supra, 168 Cal.App.4th at pp. 277-278; but see Mitchell v. Prunty (9th Cir.1997) 107 F.3d 1337, 1342, overruled on another ground by Santamaria v. Horsley (9th Cir.1998) 13 3 F.3d 1242, 1248; People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1549-1551.) When gang challenges occur in the context of “modern gang warfare,” “verbal taunting can quickly give way to physical violence and gunfire. . . . Given the great potentia l for escalating violence during gang confrontations,” it is immaterial whether an aider and abettor specifically knew that the direct perpetrator had a gun. ( People v. Montes (1999) 74 Cal.App.4th 1050, 1056; see People v. Medina (2009) 46 Cal.4th 913 [escalating violence is a foreseeable consequence in gang confrontations].) 9 Cervera, Guzman, Xulu, and Mejia belonged to the same gang, KHA. Someone in Xulu’s car issued a ga ng challenge to Lopez at the tr ain station. When that gang challenge was issued, the pot ential for violence became a tangible thing. Yet, no defendant chose to get out of the car. Instead, all of them drove on and someone in that car again issued a gang challenge, this time to Madrigal. Coupling th is evidence with the gang expert testimony, a reasonable jury co uld infer that these KHA gang members were

9 The aider and abettor liability in Medina was premised on the natural and probable consequences doctrine, which is not at issue here.10 looking for a violent confrontation. That th ere were two guns in Xulu’s car buttresses
that inference. While there is no direct evid ence that either Cervera or Guzman knew of the guns or used them, the jury certainly could have reached that conclusion based on
evidence that .45 rounds were found in the ca r, Mejia (a likely shooter) was arrested with
.9 millimeter ammunition in hi s pocket, and that gang cha llenges were issued from an occupant or occupants of Xulu’s car.
We therefore find that the evidence is sufficient to support Cervera’s and
Guzman’s convictions as aiders and abettors. II. The aiding and abetting instruction. The jury was instructed with CALCRIM No. 400: “A person may be guilty of a crime in two ways. One, he or she may have directly commi tted the crime. I will call that person the perpetrator. Two, . . . he or she may have aided and abetted a perpetrator who directly committed the crime. A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator.” Defendants argue that this instruction improperly shifted or lesse ned the prosecution’ s burden of proof. 10 We disagree.
In People v. Nero (2010) 181 Cal.App.4th 504, 518, we found that an earlier version of CALCRIM No. 400 stating that the direct perpetrator and the aider and abettor are “equally guilty” can be “misleading,” becaus e an aider and abetto r may be guilty of a greater or a lesser offense than the direct perpetrator is guilty of. (See also People v. McCoy, supra, 25 Cal.4th 1111; People v. Samaniego (2009) 172 Cal.App.4th 1148.) Thereafter, the Legislature addressed our co ncern by modifying CALCRIM No. 400 to omit the word “equally.” ( People v. Lopez (2011) 198 Cal.App.4t h 1106, 1119, fn. 5 [noting that CALCRIM No. 400 has been ame nded].) The trial court here gave that
modified version.

10 Although defense counsel did not object to the instruction, we address the issue on appeal. Because we conclude that the trial court did not err by inst ructing the jury with CALCRIM No. 400, we do not address Guzman’s alternative contention that his trial counsel provided ineffectiv e assistance by failing to objec t to the instruction.11 The modified CALCRIM No. 400, quoted above, correctly stated the general legal requirements for aiding and abetting liability, in cluding that a “person is guilty of a crime whether he or she committed it personally or ai ded and abetted the perpetrator.” Nothing
in the instruction dictates that an aider and abettor must be found guilty of the identical crime as the direct perpetrator. To the co ntrary, CALCRIM No. 401 explains that the jury may find aider and abettor liability only when the aider and abettor “knows of the perpetrator’s unlawful purpose and he or she sp ecifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate th e perpetrator’s commissi on of that crime.”
This instruction clarified what the jury needed to find as to each defendant to convict him
as an aider and abettor. We therefore also reject the specific argument that CALCRIM No. 400 is problematic because it allowed defendants to be found guilty of premeditated attempted murder based on the shooter’s ment al state without requir ing the jury to find that each defendant himself premeditated or intended to aid and abet premeditated attempted murder. In any event, an aider and abettor “need not share the heightened mental state of the direct perpetrator for th e applicability of section 664( a)’s penalty provision. [Citation.] Once the jury finds that th e murder attempted was deliberate and premeditated, both the direct perpetrator and the aider and ab ettor are subject to section 664(a)’s penalty provision.” ( People v. Favor, supra, 54 Cal.4th at p. 879; see also People v. Lee, supra, 31 Cal.4th at p. 627 [“section 664(a ) properly must be interpreted to require only that the murder attempted was willful, delib erate, and premeditated, but not to require that an attempted murderer person ally acted with willfulness, deliberation, and premeditation, even if he or she is guilty as an aider and abettor”].) We therefore conclude that nothing in the instructions created a reasonable likelihood the jury believed th at Xulu, Guzman, and Cervera had to be found “equally” guilty or that giving CALCRIM No. 400 was otherwise error. ( People v. Lopez, supra, 198 Cal.App.4th at p. 1119 [jurors are pres umed able to understand and to correlate instructions].)12 III. Aranda-Bruton

. The trial court admitted Pineda ’s statement that Cervera, who did not testify, said, “they dumped.” Guzman and Xulu contend that admitting Cervera’ s statement violated their Sixth Amendment rights to confrontatio n and to cross-examine witnesses. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Bruton, supra, 391 U.S. 123; Aranda, supra, 63 Cal.2d 518.) We find that any error in admitting th e statement was harmless.
A. Additional facts. Defendants filed pre-trial motions to excl ude statements they made implicating
each other and/or to sever their trials. Th e trial court indicated that if it admitted Cervera’s statements, the cour t would give a limiting instruction. The issue came up again during Pineda’s testimony, when Guzm an’s and Xulu’s counsel objected to any part of Cervera’s statement referencing “they, ” “these” or “them.” The court again found
that such a statement wa s admissible, but “it’s limited to Mr. Cervera.” On direct examination, Officer Honeyc utt testified that Me jia and Pineda and
defendants Cervera and Guzman were locked in Xulu’s garage . Pineda told the officer that Cervera bragged about the shooting. 11 Counsel asked whether Officer Honeycutt ascertained who “dumped,” that is, who was the shooter: “Did Erick Pineda say nah, as in he’s [(Cervera)] the one that dumped ?” Officer Honeycutt answered, “Yes.”
Counsel for Cervera then cross-examined Officer H oneycutt. Counsel asked whether “[b]ragging just means talking about it, correct?” The offi cer answered: “Yes, and I remember asking him bragging as [if] he’s the one that dumped? And he said something to the effect of no, bragging as if they dumped or something like that.” (Italics added.) The trial court, which had ear lier overruled Guzman’s objections to any statement referencing “they,” overrule d Xulu’s counsel’s motion to strike. At the conclusion of Officer Honeycutt’s te stimony, the court instructed the jury: “[Y]ou have heard evidence that the defendants made statements out of court. You may

11 Pineda testified, but denied knowing Cervera and having any recollection of the conversation in the garage.13 consider that evidence only ag ainst the defendant making the statement. Not against any other defendant. [¶] You’ve also heard evid ence of statements made by Erick Pineda to Detective Honeycutt. You may consider th at evidence only agai nst defendant Carlos Cervera. Not against any ot her defendant.” The trial court gave similar limiting instructions before the jury retired for deliberations. 12

B. Any Aranda-Bruton error was harmless. The federal and state Constitutions guarant ee a criminal defendant the right to confront and to cross-examine witnesses agai nst him or her. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15.) A defend ant’s confrontation righ ts may be violated by the admission of a nontestifying codefendant’s c onfession that implicates the defendant. ( Bruton, supra, 391 U.S. at pp. 135-136; Aranda, supra, 63 Cal.2d at pp. 530-531.) To avoid a confrontation problem, defenda nts may be tried separately. ( Aranda
, at pp. 530- 531.) Another solution is to redact from the nontestifying codefendant’s confession or statement any reference to the defendant’s existence. ( Richardson v. Marsh (1987) 481 U.S. 200, 211 ( Richardson ).)
In Richardson , three people (Marsh, Williams, a nd Martin) participated in a robbery and murders. ( Richardson
, supra , 481 U.S. 200.) Marsh and Williams were jointly tried for the crimes. Williams did not testify, but his prior statement that he and Martin, while in a car en route to the vi ctims’ home, discusse d robbing and killing the victims was admitted. ( Id. at p. 203.) All references to Marsh’s presence in the backseat of the car were omitted. Marsh, however, te stified and admitted she was in the car during the discussion but denied hearing it beca use of the loud music playing. ( Id. at p. 204.)
Richardson held that admitting Williams’s confession di d not violate Bruton , because the confession was not incriminati ng on its face but became so only when linked

12 The court instructed with CALCRIM No. 303: “During the trial certain evidence was admitted for a limited purpose. You must consider that evidence only for that purpose and for no other.” The court also told the jury: “I instruct ed you during the trial that certain evidence was admitted only against a cer tain defendant. You must not consider that evidence against any other defendant.”14 with other evidence introduced at tria l, namely, Marsh’s own testimony. ( Richardson,

supra, 481 U.S. at p. 208.) “Where the necessity of such linkage is involved, it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence. Specific testimony that ‘the defend ant helped me commit the crime’ is more vivid than inferential incrimination, and he nce more difficult to thrust out of mind. Moreover, with regard to such an explicit statement the onl y issue is, plain and simply, whether the jury can po ssibly be expected to forget it in assessing the defendant’s guilt; whereas with regard to infe rential incriminati on the judge’s instruction may well be successful in dissuading the jury from entering onto the path of in ference in the first place, so that there is no in crimination to forget.” ( Ibid .) Notwithstanding Richardson ’s “evidentiary linkage” test, our California Supreme Court interpreted Richardson as holding that a defendant’s confrontation rights can still
be violated even if the codefendant’s st atement only becomes incriminatory based on linkage to other properly admitted evidence. ( People v. Fletcher (1996) 13 Cal.4th 451 ( Fletcher ).) The specific issue in Fletcher was whether a confrontation problem can be avoided by replacing all references to the no ndeclarant’s name with pronouns or similar
neutral terms. 13 ( Id. at p. 456.) In Fletcher , Moord and Fletcher we re jointly tried for murder and attempted robbery. The evidence was that two men, pretending to have car trouble, got the victim to stop and help them . When the victim drove away, one of the men shot her. After his arrest, Fletcher told a fellow inmate that “ ‘he and a friend’ ” used a ruse to get people to stop, and he shot a woman as she drove away. ( Id. at p. 458.) Although Fletcher’s statement did not identify Moord by name, Fletcher found that admitting Fletcher’s statem ent violated Moord’s confront ation rights. The statement informed the jury that Fletcher and another man were present at the scene of the crime. ( Fletcher, supra, 13 Cal.4th at p. 469.) Becaus e other evidence placed Moord in

13 Fletcher noted that such a redacted confession is facially incriminating because it, without reference to other evidence, incriminates anot her person other than the confessing codefendant. ( Fletcher, supra, 13 Cal.4th at p. 456.) It is not facially incriminating because it doe s not identify that other person by name. ( Ibid. )15 Fletcher’s company just moments after the s hooting, “reasonable jurors could not avoid drawing the inference” that Moord was the “friend.” ( Ibid. ) Although it was only by
reference to other evidence that Moord became identifiabl e as the “friend,” Moord’s confrontation rights were violated.
Fletcher did not, however, hold that such edits will always be insufficient. Rather, the sufficiency of editing a no ntestifying codefendant’s stat ement to substitute pronouns
or neutral terms for the defendant’s name is determined on a case-by-case basis, in light
of the statement as a whole and the ot her evidence presented at trial. ( Fletcher, supra, 13 Cal.4th at p. 468; see also Gray v. Maryland (1998) 523 U.S. 185, 1 95 [“[C]onsidered as a class, redactions that replace a proper name with an obvious blank, the word ‘delete,’ a symbol, or similarly notify the jury that a na me has been deleted are similar enough to
Bruton ’s unredacted confessions as to warrant the same legal results”].) If any reasonable juror would “inevitably perceive that the defendant on trial is the person designated by [the] pronoun or neutral term in the code fendant’s confession,” the confrontation clause is violated. ( Fletcher, at p. 466.) A confession, for example, that is redacted with neutral pronouns may violate the confrontation clause if the confession “contains references to distinctive clothing , mannerisms, place of residence, or other information that readily an d unmistakably identifies th e person referred to as the nondeclarant defendant.” ( Id

. at pp. 465-466.) Here, Cervera’s statement, “they dumped, ” did not inevitably refer to Xulu or Guzman. “[A] confession that is redacted to substitute pronouns or similar neutral and nonidentifying terms for the name of a codefe ndant will be sufficient if the codefendant was just one of a large group of individuals any one of whom c ould equally well have been the coparticipant menti oned in the confession.” ( Fletcher
, supra, 13 Cal.4th at p. 466; see also People v. Lewis (2008) 43 Cal.4th 415, 467 [suggesting that when a
redacted confession avoids a “ ‘one-to-one correspondence’ ” between the confession and an easily identifiable defendant, the confronta tion clause is not violated], overruled on other grounds by People v. Black (2014) 58 Cal.4th 912, 919.) In U.S. v. Chrismon (7th Cir. 1992) 965 F.2d 1465, for example, three men were a rrested after being found in16 a trailer with illegal drugs. One defendant argued that statements referring to “ ‘you guys’ ” and “ ‘they’ ” directly referred to th e three men and should have been excluded
under Bruton . ( Id. at pp. 1468, 1471.) The court found that no violation of the defendant’s confrontation rights occurred, because the statement did not directly implicate the defendant. Othe r evidence showed that possibl y more than just the three men were involved in selling drugs; for example, there was another man who acted as a supervisor and others worked at the trailer in shifts. ( Id. at p. 1472.) Therefore, a connection to the complaining defe ndant was not “inevitable.” ( Ibid. ) Similarly, who “they” referred to was ambiguous . “They” had multiple interpretations. It could refer to any of the individuals in that garage or the car—Xulu, Guzman, Cervera or Mejia. It could refer to any combination of those individuals. Or it could refer to all of them, including Cervera. That “they” might refer to Xulu and/or Guzman was based on linkage to other properly admitted evidence. Xu lu was found outside his house, near the orange car, with the car’s keys in his pocket. Locked in hi s garage were Guzman, Cervera, and Mejia. Mejia matched the description of the rear driver-side passenger. Xulu admitted he was
the driver. Guzman admitted he was in th e backseat of the car, and Cervera gave a statement strongly suggesting th at he too was in the car (“Wh at am I supposed to do? Jump out head first?”). Therefore, although other evidence placed Xulu and Guzman in the car, “they dumped” did not inevitably refer to them. In any event, even assuming Cervera’s st atement should have been excluded, its admission was harmless beyond a reasonable doubt under the standard in Chapman v. California (1967) 386 U.S. 18. (See People v. Jennings (2010) 50 Cal.4th 616, 652 [applying Chapman standard of review to alleged Aranda-Bruton error].) First, as we have said, “they dumped” did not iden tify the shooter or shooters. (Cf. Fletcher, supra, 13 Cal.4th at p. 456 [editing, such as use of a prono un, is insufficient to avoid a
confrontation violatio n if, despite the editing, the juro rs “could not a void drawing the inference that the defendant was the copartic ipant designated” by the pronoun].) Indeed, the prosecutor conceded she could not prove which defendant was the shooter. Rather,17 there were four to five people in the orange car. Two guns were used, because .45 caliber and .9 caliber expending casings were recove red from the crime scene. Therefore, there were one or more shooters in the orange car. Evidence suggested that the rear driver-side passenger was one of the shooters, if not th e sole shooter, and other evidence strongly suggested that Mejia was this person. 14 “They dumped” did not unambiguously identify
Xulu and Guzman as shooters. Second, “they dumped” was not a compellin g piece of evidence furthering the prosecution’s theory of liability. Compare this case again with Fletcher . Fletcher and Moord found a taxi left on a freeway on-ramp. ( Fletcher, supra, 13 Cal.4th at p. 457.) The victim was passing by when she saw them and stopped to see if she could help. After Fletcher shot the victim, the other man (inferentially, Moord) said “ ‘Oh, no.’ ” ( Ibid .) This evidence raised an issue whether Moord, the nonshooter, entertained a culpable criminal intent. ( Id. at p. 456.) Fletcher’s statem ent that “he and a friend” were involved in a ruse to rob people was so “s trongly incriminating” because, but for the statement, the jury might have concluded that Moord’s only intent was to take the taxi and not to rob passersby. ( Id. at pp. 469-470.) In contrast, “they dumped” added little, if an ything to the critical issues before the jury. Rather, the prosecutor co nceded she could not prove that a specific defendant was a shooter, that is, a direct perpet rator. The case against defendants therefore was predicated on a direct aider and abettor theory of liab ility. “They dumped” does not evidence Xulu’s or Guzman’s knowledge of a shooter’s unlawful in tent and an intent to assist in achieving
those unlawful ends. The statement also does not specify what conduct Xulu and Guzman engaged in to assist the achievement of the crimes . In short, “they dumped”
does not establish how Xulu or Guzman aide d and abetted the crimes. It is not a

14 Mejia wore clothing matching the descri ption of the rear driver-side passenger and he had .9 millimeter a mmunition in his pocket.18 statement that powerfully in criminates them. Its admiss ion, if error, was therefore
harmless. 15 IV. The admissibility of Cervera’s en tire statement under Evidence Code
section 356. At trial, Officer Honeycutt testified that he asked Cervera if he was in the car, and Cervera answered, “ ‘What am I supposed to do, sir? Am I supposed to jump out head first?’ ” Cervera argues that admitting only this select st atement left the misimpression that he made a single flippant remark adm itting he was in the ca r at the time of the shooting, when the entirety of his statemen t showed he had nothing to do with the shooting and had no idea what was going on. 16 Cervera therefore contends that his Fifth, Sixth, and Fourteenth Amendmen t rights to due process and a fair trial were violated by the court’s refusal to admit, under Eviden ce Code section 356, his other exculpatory statements. We disagree.
Evidence Code section 356 allows the entir ety of a statement to be admitted where it is about the same subject as the part of the statement. Secti on 356 thus provides: “Where part of an act, declaration, conver sation, or writing is gi ven in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to ma ke it understood may also be gi ven in evidence.” “ ‘The purpose of this section is to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a mi sleading impression on the subjects addressed.’

15 Because we hold that any error was not prejudicial, we do not address any contention concerning the st atement’s admissibility under an exception to the hearsay rule.

16 Before trial, Cervera moved to admit the videotaped statement he made to the police after his arrest. In that statement, Ce rvera intimated he was in the car but denied knowing that anybody in the car was going to commit a crime. The People objected to the statement’s admission on the ground it was hearsay. The trial court ruled that the statement was inadmissible.19 [Citations.]” ( People v. Pearson (2013) 56 Cal.4th 393, 460; see also People v. Zapien (1993) 4 Cal.4th 929, 959 [in applying Evidence Code section 356, courts do not draw narrow lines around the exact subject of inquiry].) The section applies only to “statements that have some bearing upon, or connection with, the portion of the conversation originally introduced. [Citation. ] Statements pertaining to other matters may be excluded.” ( People v. Samuels (2005) 36 Cal.4th 96, 130; see also People v.
Vines (2011) 51 Cal.4th 830, 861.)
In Vines , for example, the defense introduced a portion of Proby’s statement that he and Blackie committed the robbery. ( People v. Vines
, supra , 51 Cal.4th at p. 859.)
Vines held that it was not error to permit the prosecution to admit another portion of Proby’s statement that the de fendant also participated in the robbery. “This case exemplifies the policy underlying th e code section. Defendant wanted to rely on a part of Proby’s statement to imply that Blackie wa s the shooter, which was contrary to what Proby actually said elsewhere in his statemen t. The rule of completeness exists to prevent such a misuse of evidence.” ( Id. at p. 861.) But portions of a conversation that do not cl arify or explain the portions that were admitted may be excluded in the trial court’s discretion. 17 ( People v. Williams (2006) 40 Cal.4th 287, 319.) Where, for example, the prosecution admitted an excerpt of defendant’s post-arrest statem ent to show he was rational and killed the victims because they “ ‘screwed’ ” with him, it was not e rror to exclude defendant’s expressions of remorse because they were irre levant to show his state of mind at the time he committed the crimes. ( People v. Pearson, supra, 56 Cal.4th at pp. 460-461.) Here, the prosecutor introduced Cervera’s statement, “Wha t am I supposed to do? Jump out head first?” This st atement tended to show that Ce rvera was in Xulu’s car. The
remainder of Cervera’s statement that he ad mitted pertained to other matters; namely,

17 We review this evidentiar y ruling for an abuse of disc retion, not under a de novo standard as suggested by Cervera.20 Cervera’s knowledge about what was going to happen in that car. 18 Whether Cervera was in the car and what he knew, howeve r, were two different matters. Excluding
Cervera’s statements that he had “nothing to do” with what happened did not mislead the jury on the discrete issue of whether Cervera was in the car. The trial court therefore did not abuse its discretion in excluding th e remainder of Cervera’s statement.
Nor did exclusion of the evid ence violate Cervera’s due process right to present a defense. Application of the ordinary rule s of evidence generally does not impair a defendant’s due process right to present a defense. ( People v. Gonzales (2012) 54 Cal.4th 1234, 1258-1259; People v. Lucas (1995) 12 Cal.4th 415, 464-465 [rejecting claim that the exclusion of hearsay eviden ce amounted to a denial of due process].)
Cervera’s statement was inadmissible as he arsay and, as we have said, it was not admissible, in the trial court’s discretion, under Evidence Code section 356. ( See People
v. Gurule (2002) 28 Cal.4th 557, 605 [“The ‘fuller picture’ defendant argues should have been presented to the jury consisted of self-serving he arsay not otherwise admissible at trial. [Citation.] Defendant was free to pr esent this information by taking the stand himself”].)
We therefore conclude that Cervera’s c onstitutional rights were not violated by the
exclusion of his statement.
V. Prosecutorial misconduct. Defendants contend that the prosecuto r committed prejudicial misconduct by arguing that the defense had the bu rden of proof. We disagree. “The applicable federal and state standa rds regarding prosecutorial misconduct are well established. ‘ “A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregi ous that it infects the trial
with such unfairness as to make the conviction a denial of due process.’ ” ’ [Citations.]

18 Cervera said, for example, “This has nothi ng to do with me”; “I was drinking with friends. Fuckin whatever happ ened after that that’s on them . That has nothing to do with me”; “I’m not involved in this”; and “I didn’t even ha ve no idea what was going on, sir. I’m not even the driver.”21 Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘ “ ‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ ” ’ [Citation.] As a general rule a defendant may not compla in on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim focuses upon comment s made by the prosecutor before the jury, the question is whether there is a reasona ble likelihood that the jury construed or applied any of the complained -of remarks in an objectionable fashion. [Citation.]” ( People v. Samayoa (1997) 15 Cal.4th 795, 841.) During closing argument, the prosecutor he re said: “I just want to touch on the evidence briefly before I move on. You have to think of it in terms of how could it be a
coincidence because that’s how th e defense is going to term all of this. Coincidentally or
as a result of but where’s the evidence to back that up ? How is it that on this night defendant Xulu who doesn’t have a car, who doe sn’t drive decides to take his mother’s car and at least three other occupants to go in to either rival territo ry or disputed gang territory. There’s no lawful purpose that’s been proved in this case .” (Italics added.) 19 It is improper for the prosecutor to misst ate the law generally, and in particular, to attempt to lower the burden of proof. ( People v. Williams (2009) 170 Cal.App.4th 587, 635, citing People v. Hill (1998) 17 Cal.4th 800, 829.) To the extent, if any, the prosecutor’s comments here suggested that defendants had the burden of proving anything, the comments were harmless. First, in context, the prosecutor was arguing that
the evidence showed that defend ants were together that night for an illegal purpose rather

19 Xulu’s defense counsel objected to the statement on the ground that it was “burden shifting.” The trial court found that the statem ent “may have been inarticulate in terms of expression of that but . . . there’s an abse nce of other direction of driving be it to McDonald’s, Wienerschnitzel or even Little Ceasar’s. We just have a car parked in Metrolink station for a period of time accord ing to Mr. Lopez and he actually kept observation but it just sort of sat there. So it had no apparent direction which is fair comment.”22 than out of coincidence. A prosecutor is given wide latitude during closing argument to make fair comment on the evidence, including reasonable inferences or deductions to be drawn from it. ( People v. Collins (2010) 49 Cal.4th 175, 213.) Second, if the comments could be interpre ted to suggest that defendants had the burden of proving they were toge ther that night for a lawful purpose, the comments were isolated and certainly do not co mprise a pattern of conduct so egregious as to infect the
trial with such unfairness as to make the convictions a denial of due process or to make it reasonably probable a more favorable outcome would have resulted. (See People v. Samayoa, supra, 15 Cal.4th at p. 841; People v. Ellison (2011) 196 Cal.App.4th 1342, 1352-1353 [prosecutor’s imprope r argument that the jury ha d to determine whether the
defendant’s innocence was reasona ble was harmless error]; cf. People v. Hill, supra, 17 Cal.4th 800 [multiple , egregious instances of miscond uct constituted a denial of due process].) Finally, the jury received proper instruc tion on the burden of proof via CALCRIM No. 220. We presume the jury follo wed this instruction. (See, e.g., People v. Lopez,

supra, 198 Cal.App.4th at p. 1119.)
VI. Cumulative error.
Defendants contend that the cumulative e ffect of the purported errors deprived
them of a fair trial. As we have “ ‘either rejected on the merits defendant’s claims of error or have found any assumed errors to be nonprejudicial,’ ” we reach the same conclusion with respect to the cumulative effect of any purported errors. ( People v. Cole (2004) 33 Cal.4th 1158, 1235-1236; see also People v. Butler (2009) 46 Cal.4th 847, 885.)
VII. Ineffective assistance of counsel. Because we have not based any of our conclusions on forfeiture and have found any error to be harmless, we need not addre ss defendants’ alternative argument that trial counsel provided inef fective assistance of counsel by failing to preserve a claim for appeal.23 VIII. Pitchess

. Before trial, defendants sought discovery of Officer Acuna’s, Officer Mendez’s, and Detective Honeycutt’s personnel records, under Pitchess v. Superior Court (1974) 11 Cal.3d 531 ( Pitchess ). Xulu, for example, sought in formation related to “acts of aggressive behavior, violence, excessive force, or attempted violence or excessive force, racial bias, gender bias, ethnic bias, sexual orie ntation bias, coercive conduct, violation of constitutional rights, fabrication of charges, fabrication of evid ence, fabrication of reasonable suspicion and/or probable cause, ille gal search/seizure; false arrest, perjury, dishonesty, writing of false reports, writing of false repo rts to cover up the use of excessive force, planting of ev idence, false or misleading in ternal reports including but
not limited to false overtime or medical reports, and any othe r evidence of misconduct amounting to moral turpitude . . . .” On October 23, 2012, the trial court cond ucted an in-camera review and concluded
that no discoverable material ex isted. Defendants request that we review the sealed transcript of the trial court’s Pitchess review to determine whether the court abused its discretion by failing to order disclosure of information. (See generally, People v. Mooc (2001) 26 Cal.4th 1216; People v. Myles (2012) 53 Cal.4th 1181, 1208-1209.) Trial
courts are vested with broad discretion when ruling on motions to discover peace officer records ( People v. Samayoa, supra, 15 Cal.4th at p. 827; Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1086), and we review a trial court’s ruling for abuse ( Mooc, at p. 1228; People v. Hughes (2002) 27 Cal.4th 287, 330). We have reviewed the sealed transcript of the in-camera hearing conducted on October 23, 2012. That transcript constitute s an adequate record of the trial court’s review of documents provided to it, and reveal s no abuse of procedure or of discretion. ( People v. Myles
, supra , 53 Cal.4th at pp. 1208-1209; People v. Mooc, supra , 26 Cal.4th at p. 1228; People v. Hughes
, supra, 27 Cal.4th at p. 330.) IX. The 20-year sentence for th e vicarious gun use enhancement. A 20-years-to-life sentence was imposed on each defendan t for use of a firearm by a principal under section 12022.53, subdivisi on (e)(1), also referred to as the vicarious24 gun use enhancement. Xulu contends that the enhancement violates federal and state constitutional guarantees of equal protectio n and due process. We disagree. Section 12022.53, subdivision (e)(1), 20 authorizes an enhanced sentence to be imposed on an aider and abettor if a criminal street gang allegation is pled and proved. ( People v. Garcia (2002) 28 Cal.4th 1166, 1171, 1176 ; People v. Gonzales (2001) 87 Cal.App.4th 1, 11-12; People v. Hernandez (2005) 134 Cal.App.4th 474, 480.) Gonzales rejected equal protection and due process challe nges to the statute. As to the claim that the section violates equal prot ection because it treats aiders and abettors of gang crimes differently than other aiders and abettors, Gonzales found that the two types of aiders and abettors are not similarly situated. ( Gonzales
, at p. 13.) “Unlike other aiders and abettors who have encouraged the commission of a target offense resulting in a murder,
defendants committed their cr ime with the purpose of prom oting and furthering their street gang in its criminal conduct.” ( Ibid. ; see also Hernandez , at pp. 481-482.) As to the claim that the section violates due process rights, Gonzales found that section 12022.53, subdivision (e) is “expressly draf ted to extend the enha ncement for gun use in any enumerated serious felony to gang me mbers who aid and abet that offense in furtherance of the objectives of a criminal street gang. Section 12022.53, subdivision (e) is precisely the clear expression of legislativ e intent to extend an enhanced penalty to aiders and abettors . . . .” ( Gonzales, at p. 15; accord Hernandez , at p. 483.) We agree with Gonzales . We therefore reject defendants’ contention.

20 Subdivision (e)(1) of section 12022.53 pr ovides: “The enhancements provided in this section shall apply to a ny person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of [s]ection 186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).”25 DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KITCHING, Acting P. J.

KUSSMAN, J. *

* Judge of the Superior Court of Los Ange les County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.