Filed 4/17/14 P. v. Vasquez CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE,
Plaintiff and Respondent,

v.
WILLIAM VASQUEZ,
Defendant and Appellant. B241020
(Los Angeles County Super. Ct. No. SA057247)

APPEAL from a judgment of the Su perior Court of Los Angeles County, Larry Paul Fidler, Judge. Affirmed. Charlotte E. Costan, unde r appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistan t Attorney General, Yun K. Lee and Thomas C. Hsieh, Deputy Attorneys Ge neral, for Plaintiff and Respondent.2 Defendant William Vasquez appeals fro m the judgment entered following his conviction by jury of five counts of first degree murder (counts one, two, three, four and eight), one count of willful, deliberate and pr emeditated attempted murder (count seven)
and two counts of assault with a semi-automa tic firearm (counts five and six). (Pen. Code, §§ 187, subd. (a), 664/ 187, subd. (a), 245, subd. (b).) 1 The jury also found the following allegations to be true: (1) the sp ecial circumstance that defendant committed first degree murder and was convicted of one or more counts of murder in the first or second degree; (2) the special circumstance that defendant committed first degree murder and intentionally killed the vict im while defendant was an activ e participant in a criminal street gang and carried out the crime to furthe r the gang’s activities; (3 ) as to counts one, two, three, four, and seven, defendant person ally and intentionally discharged a firearm, which proximately caused great bodily injury or death to the vic tim; and (4) defendant
committed the crimes for th e benefit of a criminal street ga ng, with the spec ific intent to promote, further or assist in criminal conduc t by gang members. (§§ 190.2, subds. (a)(3) & (a)(22); 12022.5, subd. (a); 12022.53, su bds. (b), (c) & (d); 186.22, subd. (b).) Although the prosecution sought the death pe nalty, two juries did not return a death
verdict. Defendant received five terms of lif e without the possibility of parole, 140 years to life and 16 years, with the se ntences to run consecutively. Defendant contends: (1) the murder c ounts should not have been consolidated; (2) a photographic identific ation should have been excluded because it was obtained through an unduly s uggestive process; (3) his right to due process was violated by allowing the identifications of witnesses who failed to appear at a court-ordered lineup; (4) the trial court’s curative instruction with respect to those witnesses was inadequate; (5) the testimony of a defense expert was un duly restricted; (6) a motion for new trial should have been granted; (7 ) some of the convictions are not supported by the evidence; (8) cumulative error requires reversal; and (9 ) the matter must be remanded for the trial

1 All further undesignated statutory references are to the Penal Code.3 court to conduct an in camera hearing pursuant to Pitchess v. Superior Court (1974)
11 Cal.3d 531. Finding no error, we affirm the judgment.

STATEMENT OF FACTS
I
The Prosecution Case A. The Shooting of Hector Bonilla and Jonathan Hernandez 2 (Counts One and Two) On the evening of March 5, 2005, Santa Monica police officers and paramedics responded to reports of a shooting at the Moose Lodge in that city. The bodies of Hector
Bonilla and Jonathan Hernandez were found on the floor of the main hall. They had been shot multiple times. Earlier that day, Imelda Martinez was at the Moose Lodge attending a birthday party for her brother, R uben. She saw defendant, whom sh e knew as Willie, at the party. Defendant had stayed at her home on occasion and was a frie nd of Ruben’s. Defendant was wearing a long-sleeved shir t that Martinez described as “blood red.” Martinez did not recall seeing anyone at the party wearin g a similar type of red shirt. Martinez was present in the Moose Lodge wh en Bonilla and Hernandez were shot. After the incident, Martinez was interviewed by detectives. She told them that when the shooting started, she went down toward th e floor. As Martinez looked up, she saw something red and the first thought that cam e to her mind was that defendant was the
shooter. Defendant’s shirt was distinctive because “it was more casual and everybody else was a bit more dressed up.” Martinez told detectives she saw the arm of the person in the red shirt and it was pointed downward ata 45 degree angle as the shots were being fired. Martinez acknowledged thatthe room was not well lit.

2 Defendant, Jose Mojarro and Erick Nunez were jointly charge d with the murders of Bonilla and Hernandez. Mojarro and Nunez were severed from the case and tried together prior to defend ant’s trial. We affirm ed their convictions. ( People v. Mojarro July 2, 2011, B2230 35) [nonpub. opn.].); ( People v. Nunez (Sep. 29, 2010, B215886) [nonpub. opn.].)4 On the night of the shooting, after Mar tinez returned home w ith her cousin, her
cousin’s husband and some fri ends, she told them that th e person in red who was doing the shooting was the same individual who prev iously had stayed at her home. That person was defendant. On July 25, 2005, Ma rtinez identified a picture of defendant during an interview with detectives. Next to the picture, she wr ote, “This is Willie, the one I saw at the party wearing a red shirt.” Ruben Martinez rented the Moose Lodge for his birthday party. He spent most of the time in the bar area during the party. He estimated there were approximately 100 guests at the location. At some point, Mar tinez heard popping sounds. He became aware that there had been a shooting. Earlier, Mart inez saw defendant at the party. Defendant was wearing a red shirt and red cap. He stoo d out because he was wearing red. Martinez told police, “I’m shocked for him to be wear ing that when the Bloods are the enemy. I don’t know. I don’t understand that. I mean, he must have had the balls that big to be doing something like that. Who’s going to tell him anything?”
Martinez saw four or five members of the Santa Monica gang at the party. “They were yelling and shouting out th eir [] territory, their neighbo rhood.” The members were walking around the dance floor and waving their bandanas.
Martinez knew defendant was a member of the 18th Street gang. Defendant was a friend in the neighborhood and had stayed at Martinez’s home. When Martinez identified defendant’s photograph for police, he did not te ll them that he knew defendant. Martinez acknowledged he did not want to be present in court. Although he denied being frightened to give information, Martinez c onceded he told police, ‘“You know how it is on the street. If you say a word, you get taken out.”’ A couple of days after the shooting, defendant came to Martinez’s home.
Defendant asked if the Moose Lodge had any surveillance cameras. Salvador Ramirez was at the party. He saw defendant, someone he had encountered in the neighborhood on prior oc casions, at the location. Ramirez knew defendant as Willie. Defendant was wearing a red shirt and a red baseball cap. They5 exchanged greetings. Ramirez spent most of th e time in the area of the bar and was there when the shooting broke ou t in the main room.
About a week after the shoo ting, Ramirez spoke to Imelda Martinez. She told
Ramirez that she saw the shooter. She was no t certain, but she thought the shooter was defendant because he was wearing a red shirt at the party, like the shooter. Ramirez did not recall seeing anyone at the party wearin g a red shirt and a red hat other than
defendant. On March 20, 2005, approximately two weeks after the shooting, detectives showed Ramirez a six person photographic lineu p. He selected defendant’s photograph, indicating defendant was the pe rson Ramirez knew as Willie. Rachel Herrera, another guest at the party, arrived at about 9:00 p.m. and sat in the bar area. She went into the main room, wi shed Ruben Martinez a happy birthday and said hello to his sister, Imelda. At some poi nt, a scuffle broke out. She testified at an earlier proceeding that four or five males we re fighting. Herrera saw someone throw a
chair and heard a sound “like firecrackers.” She and others realiz ed shots were being fired and they ran. That night, Herrera spoke to police office rs. She said one of the men she saw was dressed in red and wore a red baseball cap. This person approached the group that was fighting and shot a male multip le times. The victim immedi ately fell to the floor. The shooter stepped forward and fired more roun ds into the prostrate victim. Herrera
admitted she told an officer that she would not be able to identify the people involved in the fight because it was too dark inside the room to see their faces. Herrera attended two live lineups. She did not identify any of the participants. The parties stipulated that defendant wa s in the second lineup Herrera viewed. Diana Estrada arrived at the party and sat at one of the tables in the main room.
She became aware of a commoti on. Estrada told police sh e saw five or six male Hispanics fighting. Her boyfriend, Cuauhtemoc Estrada (they were married at the time of trial and we will refer to each by his or he r first name) saw four or five individuals striking one male. The table at which sh e and her boyfriend were sitting was shoved6 against them. They got up and went under a nearby piano. Both Estradas saw two men shooting. One of the shooters was wearing a red shirt and red hat. He was firing at a man who was on the floor. Diana saw a second shooter, who was wearing a white shirt and jeans. She focused more of her attention on the man in red. After the shooting stopped, the perpetrators ra n out of the exit that led to the street.
Diana became aware that Cuauht emoc had been shot in the right leg. He went to a hospital. By the time of tria l, he had not yet fully recove red from his wounds. At times, he still had pain in the leg. Diana “more or less, kn[e]w...what [the ma n in red] looked like.” She described him as being a light skinned Hispanic in hi s late teens to early 20’s, with a small
mustache. He was between five foot three an d five foot six and “ it did not look like he weighed a lot.” She was shown a six-pack ph otographic lineup by police. Diana circled defendant’s photograph and wrote, ‘“This photo resembles the one who was – shot the older victim, which is the one with the red shir t.”’ At a prior proceeding, Diana said she was unable to identify the shooters. Cuauhtemoc saw that one man engaged in the fight stood out from the others
because he was dressed in red. He was shown a six-pack and identified one of the shooters. The person Cuauhtemoc select ed was not the man wearing red. Another party guest, Cesar Banuelos, was in the bar area with his wife and some friends. He noticed a large group of men ne ar a pool table, but di d not notice anything out of the ordinary. He went to the restroom. While there, he heard the sound of gunfire. After the incident, Banuelos was show n some photographs. He circled defendant’s photograph and wrote, ‘“It l ooks like the guy wearing bright red at the Moose Lodge Party.”’ He did not see anyone else at the party wearing a red shirt. The person depicted in the phot ograph looked like a person named Willie, whom Banuelos had seen in the neighborhood. At trial, Banuelos identified defendant as Willie. Ramon Mendoza helped the DJ set up for the party and spent most of the time seated on the stage. While there, he noticed a disturbance near the main door. Three or four men were beating on one individual. After the individual was knocked down,7 another male approached the group with a rais ed chair. To Mendoza, it appeared as if that person was attempting to throw the chair at the group involved in the fight. One of the males who was inflicting the beating took out a gun and shot the person with the chair, who immediately dropped to the floor. The gunman then turned and shot the male who was being beaten. A second male produ ced a gun and began to fire at the same male. The first gunman returned to the victim who had raised the ch air and shot him as he lay on the floor. That gunman looked toward Mendoza and fired two or three shots at
him. Mendoza was not struck. He ducked down on the stage and continued to hear gunfire. On March 8, 2005, Mendoza was shown a photographic lineup. He identified a photograph of the person he ca lled the first shooter and wrote, ‘“This looks like the guy I saw shooting at the Moose Lodge.”’ Mendoza described the shooter as being five-seven to five-eight, skinny, 17 or 18 years old and we aring a blue cap. On March 25, Mendoza was shown a second photo spread. He circled one picture and wrote, ‘“He looks like one of the gu ys I saw shooting inside the Moose Lodge party.”’ Mendoza looked at a third six-pa ck. He selected defendant’s photograph and wrote, ‘“He looks like the guy who initiated the fight at the Moose Lodge.”’ Mendoza said this person was wearing a red shirt at the party.
Mendoza admitted that he withheld certain information from the detectives during the photo showups. When he was subpoenaed to testify, he realized he was going to be sworn to tell the truth. As he was waiting to testify at the prelim inary hearing, Mendoza
told Detective Lewis that he recognized the second shooter as being the male wearing the red shirt, whose picture Mendoza had identified. Mendoza said he was afraid to identify the individual at the photo showup because he seemed like he was the leader of the group who had participated in the fight at the Moose Lodge. In court, he identified defendant as
the second shooter. He described defendant as being about “five-five, five-six, stocky build. He was a little shorter, heavier set th an the first shooter.” Mendoza said he
remembered the events at the Moose Lodge as if “it was yesterday.”8 Mendoza acknowledged that when he was interviewed shortly after the incident, he mentioned only one shooter. He also conc eded that he failed to say there was a second
shooter on the first three occasions that he spoke to detectives. Crispin Yanez attended the birthday party. Yanez saw defendant, whom he knows as Willie, at the party. When asked by de tectives what defendant was wearing, Yanez replied, “Uh, it was really hard not to miss him. He was wearing a red [] outfit, I think.”
The outfit consisted of a re d shirt and a red hat with the letter “A” on it. Yanez testified that he was standing near a pool table when he heard gunshots; however, he did not see the shooting, claiming he was drunk. During an interview with Santa Monica detectives, Yanez said he hear d the shooting, turned around and, because the guests had gotten down on th e floor, he had a clear view of defendant shooting at an individual. ‘“The guy was already dead , and Willie kept on walking towards him shooting until the gun, I guess, I don’t know . . . .”’ Yanez told the detectives defendant shot the larger victim. He also saw a se cond shooter who was firi ng at another man who was on the ground. At trial, Yanez claimed he lied to the Sant a Monica detectives, saying he told them what they wanted to hear b ecause he was being investigated for a double homicide by Los Angeles police. After being interv iewed by Los Angeles Police Department detectives, he was released. Yanez admitted that after he was dropped off at home, he and his family drove to the Santa Monica police department to speak with detectives. He denied telling police that he was afraid of defendant, although he acknowledged saying he was concerned for his family. On August 19, 2005, Yane z was shown a six-pack by police. He circled defendant’s photograph and wrote, ‘“I saw hi m shooting at the guy in the Moose.”’ He looked at a second set of pictures and circle d one photograph and wrot e, “I saw him walk into the Moose and []shooting at a guy [who] fell down.” Yanez saw the second man
walk into the Moose with de fendant. Yanez told police the second man was wearing a
black shirt.9 Defendant is a friend of Yanez’s brother, Jo se. In 2005, Jose affiliated with the 18th Street gang. Yanez believe d defendant also was affiliate d with that ga ng because he hung out with Jose. Yanez was upset when served w ith a subpoena. He denied that he started to cry. Soon afterward, he went to Arizona. He claimed that he left the area for reasons unrelated to the court proceedings. A warrant was issued when Yanez failed to appear at the preliminary hearing. Detective Lewis called and left several messages for Yanez,
who claimed he did not receive them. Even tually, Lewis went to Arizona, took Yanez into custody and return ed to Los Angeles. Yanez denied that he repeatedly told the
detective that he was fearful. Los Angeles Police Department Detec tive Timothy Grimes was one of the
detectives who interviewed Ya nez in connection with an un related double homicide. When Grimes began the interview he was un aware of the Moose Lodge shooting. His partner was told by the officer who arre sted Yanez that Yanez may have some information concerning that incident. Afte r Grimes concluded his interview related to other crimes (which we discuss, infra ), he asked Yanez what he knew about the Moose Lodge killings. Grimes showed Yanez several six-packphotographic lineups that included members of the 18th Street gang. Yanez se lected a photograph of defendant and told Grimes that Willie did the shooting. During the course of the inte rview, Yanez stated, several times, that he was in f ear for having provided information to the police. A tape of
Grimes’s interview of Yanez was played for the jury.
Santa Monica Police Detectiv e Richard Lewis interviewe d Yanez shortly after he was released by Detective Grimes. Lewis sp oke to Yanez at the Santa Monica station after Yanez and his girlfriend arrived there. The interview was videotaped and the recording was played for the jury.
Yanez told Detective Lewis and Detectiv e John Henry that defendant, who was wearing a red shirt and red baseball hat with the letter “A” on it, was one of two shooters at the Moose Lodge. Yanez described how de fendant walked toward one of the victims10 who was lying on the floor and continued to shoot him. Yanez estimated he had seen defendant on 30 prior occasions, as defe ndant would visit Yane z’s brother. Yanez expressed concern that defendant and the other shooter would learn he had given information to the police, noting the two men were “ruthless.” Yanez saw a series of photographic lineups . After viewing the first, he circled photograph number five, identifying Jose Moja rro as the second shooter. In the second six-pack, he selected picture number three, a photograph of defendant. Lewis said he personally served Yanez w ith a subpoena at his residence. Yanez began to cry and said he did not want to tes tify. He maintained th at he had helped the police so the perpetrators could be caught; howeve r, he wanted no further part in the case. After Yanez was subpoenaed, he fled to Ariz ona. The detectives received a warrant for
his arrest and retrieved Yanez from Phoenix af ter he was arrested during a traffic stop. On the trip back to Los Angeles, Yanez again began to cry, saying he was scared for himself and his family. Krizna Ayala went to the party with the fa ther of her three children, victim Hector Bonilla. They arrived shortly after 10:30 p.m. At some point, Ayala went to the restroom and while inside, she heard a number of gunshots. When she came out of the restroom, the gunfire had e nded. She saw Bonilla on the floor bleeding. A few weeks later, Ayala was shown six-pa cks by the police. She selected two photographs and stated she saw the persons de picted at the party. Ayala said one was wearing a blue hat and a t-shirt at the time; the other was dressed in a red shirt and red hat. She said one of the persons in another photo array might have be en present as well. Christian Solares’s testimony from the pr eliminary hearing of defendant, Jose Mojarro and Erick Nunez was read to the ju ry. Solares was in custody, having been convicted of attempted murder. He was at the party at the Moose Lodge and saw his
friends Jonathan Hernandez and Hector Bonilla there. Hernandez, Bonilla and Solares
were members of the 17th Street Santa Moni ca gang. After the shooting, Solares saw Hernandez and Bonilla lyi ng dead on the floor.11 About a month later, Solares was intervie wed by Detective Lewis. He did not recall telling Lewis the following: (1) he heard someone yell that Hernandez was being beaten; (2) he looked over and saw Hernandez being hit by several individuals, including one wearing a red shirt and re d baseball cap; (3) Hector Bo nilla starting running toward the fight; (4) the man in the red shirt pulled a handgun and starting firing; (5) a second individual produced a gun and shot several time s; (6) the man in red continued to fire at Hernandez and Bonilla after they were lying on the floor; (7) the man in red was an 18 to 20 year old, thin, light-skinned male Hispanic, about five-nin e or five-ten; (8) the man in red shot Jonathan Hernandez; and (9) he, So lares, could get shot for saying anything to police.
Detective Lewis showed Solare s a six-pack photographic lineup. Solares circled a picture of Mojarro and wrote that Mojarro wa s at the party talking to one of Solares’s
friends. Solares’s interview was videotaped and the tape was played for the jury.
Alfonso Lozano is a Santa Monica Police offi cer. He is familiar with the gangs in Santa Monica. The Santa Monica 17 gang is a clique of the Santa Monica 13 gang.
Jonathan Hernandez and Hector Bonilla were members of the Santa Monica13 gang and Santa Monica 17 clique. In 2005, the Santa Moni ca 13 gang and its clique were rivals of the 18th Street gang. Doctor Ogbonna Chinwah, a deputy medi cal examiner for the Department of Coroner for Los Angeles Coun ty, performed the autopsy on Jonathan Hernandez. He ascribed the cause of death to multiple guns hot wounds (Hernandez suffered 17 wounds). The parties stipulated that marijuana and methamphetamine were found in Hernandez’s system. Doctor Raffi Djabourian is also a depu ty medical examiner. He performed the autopsy on Hector Bonilla. Bonilla suffered eight gunshot wounds and succumbed as a result. He had the tattoo “SM” on his body. The parties stipulated that Bonilla had a blood alcohol level of .05 perc ent. In addition, cocaine a nd marijuana were found in his system.12 B. The Shooting of Alex Haro (Count Three) On January 27, 2002, Salina Redondo attended a backyard party at a home where
she saw her friend Alex Haro. She had fini shed dancing with Haro when she noticed some individuals entering the yard through a side gate. Suddenly, the guests began running toward the house and out of the yard. Redondo rea lized the people were trying to get away from a man wearing a baseball ha t, whom she identified as defendant. He was casually walking into the yard with a gun at his side. She made eye contact with
defendant and ran toward the house. As she was entering th e home, Redondo heard six to nine gunshots. After the shooting stopped, sh e was scared, left the residence and drove away. She did not talk to police that night.
Some weeks after the shootin g, Redondo was working at an In-N-Out drive-thru
window when she saw defendan t in the passenger seat of a car that drove up. After completing the transaction with the driver, she left the window in a panic. Redondo was very concerned because she had worked at that location for ab out a year and had not seen
defendant there before. Approximately a week and a half later, sh e was at work when she saw defendant again. On this occasion, he walked into the restaurant. Redondo took his order at the counter. After he gave her money, Redondo le ft the counter and walked to the back of
the restaurant. Defendant sat at a table with another individual a nd ate. Redondo waited until they left the restaurant befo re returning to the counter. On May 22, 2002, Redondo met with de tectives and viewed a photographic lineup. She selected defendant’s picture a nd said he was the person with the gun, whom she saw in the backyard at the party and w ho twice came to her place of employment. When Redondo spoke to detectiv es that day, she held back some information because she
was scared. She wanted to limit her invol vement in the case because defendant had shown up twice at her job. Since the time of that first interview with detectives, Redondo
realized she had to come forward and divu lge all she knew because Alex Haro was a longtime friend.13 Redondo acknowledged that sh e had been asked to attend a lineup on September 20, 2007 and October 30, 2007. Sh e failed to appear at either. Cesar Navarro was another guest at the part y. He knew Haro in high school, but
had not seen him in the four and a half years since graduati on. Navarro and Haro had a conversation, trying to catch up on each other’s life. Later, Haro was dancing when Navarro noticed two males walking toward the b ack of the yard. One of the males rushed forward and yelled, “Fuck Caca City.” That male, who appeared angry and aggressive, rapidly approached a “young ki d” who was wearing a hat with the letter “C” on it and
knocked the hat off his head. Haro came ov er “to defend” the young ster and socked the aggressive male, who then “pulled out a gun and just started unloading.” The shooter was inches away from Haro as he fired. Haro died as a result of the shooting. After the gunfire, the crowd began to scatte r. Navarro froze. A few seconds later, he heard two more gunshots.
Navarro described the shooter as “not tall at all. Probably about five-five, five-six at the most” and “really thin.” He was we aring a baggy charcoal gray hooded sweater and a fitted, navy blue Yankee hat. Th e male was Hispanic and had a very light
mustache. On February 20, 2002, Navarro was inte rviewed by police. He was shown a sixpack photographic lineup. He circled defenda nt’s photograph and wrote that he ‘“looks like the suspect . . . that was wearing a fitte d New York hat at the time where he had a gun and shot towards Alex Haro.”’ He was one hundred percent certain of his
identification at the time. In 2007, Navarro attended a live lineup. Th e parties stipulated that defendant was in position number four and Navarro selected the person in position number five. Carlos Diaz was present at the party wher e Haro was shot. Diaz had known Haro since high school. Both were members of the Culver City Boys gang. On the night of the party, Diaz did not see any othe r Culver City B oys members.
Diaz walked to the front of the house to meet some girls who had arrived. He professed to not remember anything else from that night. He conceded that he told police14 on the night of the shooting: (1) he saw so me bald-headed guys arguing; (2) someone in the group said everything was cool; (3) as Di az walked toward the ba ckyard, three of the guys who had been arguing followed; (4) the three had guns; (5) one of the three used a derogatory term for Culver City Boys by asking “Who’s from Caca City?” Diaz said he heard shooting coming from the backyard and saw people running
toward the front of the house. Diaz went in to the backyard to lo ok for Haro because he
did not see him run out of the backyard. In March 2002, detectives showed Diaz a six-pack photographic lineup. He selected defendant’s photograph and wrote that he ‘“looks lik e one of the people that [came] to the party with the handgun and hood on his head.”’ At trial, he claimed he circled the photograph because the detectiv es pointed that pers on out by tapping on the picture. Los Angeles Police Detective Richard Gordon and his partner Detective
Razanskas were the detectives who conduc ted the March 2002 in terview of Diaz.
Detective Gordon denied that anyone tapped on defendant’s photograph during the photo showup. In September 2006, Diaz was arrested. While in custody, an inmate asked him his name. Diaz replied he was “Scrappy” from Culver City. The inmate said he was
“Crook” from 18th Street. He also said to Diaz, “You are Carlos Diaz.” Diaz had never spoken to the man before. He denied telling detectives the day before he was to testify
that defendant was the inmate who had spoken to him in jail.
Diaz admitted he was curren tly in custody, having be en convicted of commercial burglary. He also acknowl edged that he did not atte nd two live lineups. Erica Diaz also attended the backyard part y. She noticed a male walking through the yard and the guests were getting out of hi s way. Diaz did not recall the description of the male that she gave to detectives. The male was screaming, “Who’s from Caca?” He slapped a hat that had the letter “C” on it off th e head of another gues t. Diaz then heard gunfire.15 In April 2002, Diaz was shown a six-pack photographic lineup. She selected a picture of defendant and wrote that the pe rson depicted looked like the male who was screaming at the party. Detective Gordon sa id she described the shooter as being a male Hispanic, about five-five to five-six in hei ght and roughly 130 pounds. He was 16 to 20 years old with a thin mustach e and was wearing a black ba seball cap, black sweatshirt
and black hooded sweatshirt. She told Gordon the person removed a handgun from his
waistband area and fired three to four shots at Haro. She failed to attend two live lineups. Los Angeles Police Sergeant Jason Azpeitia ar rived at the scene of the shooting in a response to a radio call. While at the loca tion, he observed two individuals, Carlos Diaz and Daniel Mendez, arguing in the stre et. Azpeitia saw an individual with a gunshot wound to his leg on th e porch of the residence. Detectives Gordon and Razanskas, were the investigating officers. They responded to the crime scene at the backyard of the residence. Among the items located in the yard that were booked into ev idence were a .40 caliber cartridge casing, bullet fragments, and a .22 caliber cartridge casing th at was found by one of the residents. In the driveway of the location, six .45 caliber cartridge casings were found. A vehicle parked in the driveway had what appeared to be bullet strikes. The strikes indicated that they were made by shots fired in the dir ection of the street. A bullet fragment was
discovered in the street. Doctor Louis Pena, a deputy medical ex aminer for the Los Angeles County Department of Coroner, performed the autopsy on Alex Haro. Haro was shot three times,
twice in the torso and once in the back of the head; each of the wounds was fatal. Two of the wounds had stippling, indicating that th e gun was fired from a range of a couple of inches up to two feet away from the victim. 3

3 A criminalist determined that one of the projectiles recovere d by Doctor Pena was consistent with a .22 caliber round.16 C. The Shooting of Jesse Becerra and Raymundo Ortiz (Counts Four and Five) On September 23, 2005, Raymundo Ortiz at tended an outdoor bi rthday party at a
residence on 21st Street. He left the locati on to urinate in a nearby alley, accompanied by a friend named Santiago Rosales. After Orti z relieved himself, he stopped to wait for Rosales. A black SUV drove up . An occupant of the SUV asked a third person (later identified as Jesse Becerra), who was standing near Ortiz, where he was from. Becerra replied, ‘“Santa Monica.”’ Ortiz felt something bad was going to happen because ‘“somebody just doesn’t reply and respond anot her hood or whatever [] if they are not
from there.”’ Ortiz was aware that he wa s not in Santa Monica at the time. The SUV pulled away. A short time la ter, Ortiz saw a person running in his direction and firing a weapon. He believe d it was the same individual who had asked
Becerra where he was from. Becerra fell. Or tiz and Santiago hit the ground to get cover. Ortiz was shot in the leg. The man ran past a nd kept firing at Becerra’s head as he lay on
the sidewalk. On October 17, 2005, Ortiz was shown a six- pack photographic lineup. He circled defendant’s photo in position nu mber two and wrote: ‘“It c ould be number 2. It looks like his face.”’ At the time, Ortiz was cert ain he was identifying the person who shot Becerra and him; however, he acknowledged he testified at the preliminary hearing that he was not one hundred percent sure. On October 30, 2007, Ortiz attended a live lineup. The parties stipulated that although defendant was in the lineup, Ortiz selected another individual. Santiago Rosales was with Ortiz on th e sidewalk. A black SUV came up.
Someone inside the car asked the victim where he was from in a stern, demanding voice.
The victim identified th e gang he was from. The vehicle pulled away. Rosales and Ortiz started back toward the party and the vi ctim passed them and continued down the sidewalk in the direction of the alley. As the victim passed, shots were fired from behind Rosales. Rosales turned and saw the gunm an running toward them and shooting. Rosales jumped back. The gunman ran past hi m toward the victim, continuing to fire his17 weapon. After the shooter left, Rosales sa w Ortiz on the ground. The shooter was the same person who had asked the victim where he was from. On September 30, 2005, Rosales was show n a photographic lineup. He circled a photograph of someone other than defendant and wrote the person had the same bone
structure as the shooter. Los Angeles Police Officer Hector Marquez was the first officer to respond to the location. There were approximately five pe ople surrounding a vic tim who was lying on the ground. The responding ambulance attempted to provide first aid to that individual. A second victim, who had been shot in the leg, was in the driveway. Los Angeles Police Detective Louis Turriaga was called to the scene. He was told there had been a party at the location prior to the shooting. 21 cartridge casings were located near the victim, one in the back of his shirt. Doctor Chinwah performed the autopsy on Jesse Becerra. Becerra sustained 20 gunshot wounds, nine to the back of the head.

D. The Shooting of Donell Kipp (Count Six) On January 26, 2003, Lisa Briseno we nt to Apartment 201 in a building on
Glendon Avenue where she soci alized with three girlfriends and three males, one of
whom was defendant. Briseno had seen defe ndant on several prior occasions. The group partied in the apartment. Alcohol and drugs were consumed. After she had been at the location for several hours, she saw defendan t standing in the living room and clicking two guns that he was holding. He seemed “paranoid” because a helicopter was flying overhead. Defendant thought some one had called the police. Briseno got up and went into the kitchen. She made some soup, hoping it would sober defendant up. When she tried to bring him the soup, defendant pointed a gun at her and said not to come any closer. He starte d pointing both guns at the others, who were sitting on two couches. Bris eno heard a gunshot and noticed one of the males was holding his shoulder and bleeding. (The pa rties stipulated that the person shot was Donell Kipp.)18 Defendant told Briseno she was going to drive him somewhere. She offered him the use of her car, but he demanded that sh e take him. At gunpoint, defendant led Briseno, her friends and Kipp to Briseno’s car . Briseno could not drive, so one of her
friends drove to a location where defendant wa nted to be dropped off. After defendant left the vehicle, Kipp was driven to the ho spital. Briseno did not call the police. That evening, police officer s came to her house. She to ld them what had occurred earlier in the day. About a year later, she was shown a photographic lineup and identified defendant as the person who shot Kipp. Candy Betancourt, who was present in the apartment with Briseno, confirmed that
defendant shot the victim. In October 2005, sh e identified defendant’s photograph from a six-pack. Betancourt could not say for su re whether defendant was in the courtroom during her testimony. She acknowledged that in January 2003 she viewed a photographic lineup that included defendant’s picture and did not identify him. After the incident, Betancourt was inte rviewed by Los Angeles Police Detective
Jeff Nolte. She was afraid to speak to police because she knew the incident was gang related and believed her family would be killed if she cooper ated with the authorities.
She knew defendant was a member of the 18 th Street gang and ha d seen him on prior
occasions. Betancourt identified defendant’s picture from a photographic lineup and said
he was the shooter. She was co nfident she would be able to identify him if she saw him again. Ruth Betancourt offered similar testimony; however, she did not recall that anyone directed her (she was the driver) to go to a particular location. She also identified defendant’s photograph from a six-pack , saying he looked like the shooter. According to Detective Nolte, Ru th also said that she was afraid to cooperate. She
stated that defendant opened fire in the ap artment, ordered the occupants to leave with him and told her where to drive after the gr oup got into Briseno’s car. Ruth identified defendant’s photograph and sa id he was the shooter. Los Angeles Police Criminalist Harry Klan n responded to the crime scene. He observed what appeared to be bl ood stains that started in th e street and continued on the19 sidewalk on the side of the apartment building. The stai ns were photographed. The blood trail led up the stairs, into the buildi ng, down a hallway and to an open apartment door. Klann went inside the apartm ent. No one was present. Three cartridge casings (two .9 millimeter and one .45 caliber) were lo cated on the floor in front of a couch.
There were bloodstains on the couch cushions. A third .9 millimeter cartridge casing was found on the ground in front of a television set. A spent bullet was retrieved from inside
a couch cushion. Live rounds of ammuniti on, several magazines for a semiautomatic firearm, firearms and drugs also were recovered.

E. The Shooting of Mark Brown (Count Seven) On December 3, 2003, Mark Brown was st anding outside a residence on La Salle
Avenue. Brown had lived in th at neighborhood all of his life and, as a Rollin 20’s gang member, he knew that his gang controlled the area. The location where Brown was standing was a place “where the homies kick it at.” He noticed a male, whom Brown identified as defendant, jogging in his directi on. A girl came up to Brown and asked for a dollar. As he went into his pocket to ge t some money, Brown’s keys dropped to the ground. He went down to pick them up when he noticed a black object close to his face. Brown threw his hands up and grabbed defendant’ s wrist. Defendant was holding a gun. Brown and defendant struggled for contro l of the weapon. Defendant was pulling the trigger. Brown was struck in the shoulder by a bullet. The men fell and the gun hit the ground. Brown dove under a nearby ca r. Defendant retrieved the firearm, and
continued to fire while shouti ng ‘“fuck slobs.”’ Brown said the word “slob” is a term used to disrespect Blood ga ng members, which includes those who belong to the Rollin 20’s. After five or six shots, the gunfire ceas ed. People in the resi dence, including Sheba Robinson, ran outside.
Brown was familiar with the 18th Street gang and stated that 18th Street and the Rollin’ 20’s Crips were “always at war.” Br own had seen defendan t on prior occasions when Brown and fellow gang members drove th rough 18th Street te rritory during their20 “scouting” trips looking for 18th Street members to kill and wh en Brown was at the shooting range. On December 16, 2003, Br own viewed a photographic lineup and identified
defendant as the individual who shot him. He also identified defendan t at a live lineup. At the time of trial, Brown was in pris on for selling narcotics. He had prior convictions for shooting at an inhabited dwe lling, attempted robbery, seven robberies, and the selling of narcotics. On the night of December 3, Sheba Robins on was walking home from the market.
A red vehicle Robinson believed to be an Ac ura approached and stopped near her. The driver yelled, ‘“Hey, do you know where an y 20’s are at?”’ Robinson did not respond and continued walking. There were four Hisp anic males in the car. One stood out in her
mind. Later, while Robinson was at home, sh e heard gunshots and then someone knocking on the front door. When Robins on opened the door, Brown collapsed on her living room floor. Robinson called 911. She knew Brown from the neighborhood and was aware that he was a long time member of the Rollin’ 20’s. In October 2005, Robinson spoke to th e police about the sh ooting for the first time. She viewed a photograp hic six-pack. She identified defendant’s picture and said
he looked like the driver of the Acura. At trial, Robinson stated she was 50 percent certain that the person whose picture she selected was the driver of the car. Los Angeles Police Officer Kevin Beard arri ved at the scene. He observed Brown in the parking lot, suffering from two gunshot wounds. Beard requested an ambulance, set up the crime scene by taping off the area and attempted to lo cate physical evidence. Detective Jeff Nolte responded to the lo cation. He saw numerous .9 millimeter cartridge casings and bullet impacts on the bu ilding and nearby vehicles. The detective spoke to Mark Brown shortly after the shooting. Brown said Sheba Robinson called his name to warn him as the shooter approa ched. (Robinson denied doing so.)21 F. The Shooting of Kevin Walton (Count Eight) That same evening, Detective Nolte arri ved at the scene of a second shooting at about 7:45 p.m. He saw Walton, who had suffe red multiple gunshot wounds, lying in the street. Six .9 millimeter cartridge casings were located in the street near Walton’s body. Walton’s body was found approximately a quarter to a half mile from where
Brown was shot. It took about one minute to travel between the two locations by car. Sheba Robinson called 911 to report the Br own shooting at 6:17 p.m. The 911 call reporting Walton’s shooting came in two minutes later. Doctor Irwin Golden perform ed the autopsy on Kevin Walton. Walton had three gunshot wounds; one to the neck, another to th e jaw and a third to the knee. The wounds to the neck and jaw were fatal.

G. Gang Expert Testimony Officer Teodoro Urena had pe rsonal contact with defendant on approximately six
occasions. Defendant is a self-admitted member of the Alsace clique of the 18th Street gang. All blood gangs, which include th e Rollin’ 20’s, Santa Monica Trece and the Culver City Boys, are rivals of 18th Street. During his contacts with defendant, Urena attempted to counsel defendant to get out of the gang. Urena believed the Moose Lodge shooting started an active feud between 18th
Street and Santa Monica Trece. Urena also was aware of sh ootings between 18th Street
and the Rollin 20’s and 18th Street and the Culver City Boys. Los Angeles Police Officer Edgar Hernand ez worked the gang unit from 2001 to 2006, focusing exclusively on the 18th Street gang. In 20 05, the 18th Street gang had approximately 3,000 documented members in the Rampart Division and 5,000 in Los Angeles county. Alsace was one of the cliques of the gang. 18th Street is a rival to all gangs in the surrounding areas. According to Hernandez, resp ect is “everything” to the culture of 18th Street. A member who puts in wo rk for the gang escalates his or her level of respect within the gang. Disrespect of an 18th Street member sometimes leads to murder.22 Hernandez identified photographs of Jose Mojarro and Erick Nunez. Hernandez testified at their preliminar y hearing and trial. Mojarro had a tattoo representing the Alsace clique. Members of the Alsace clique often wear an Atlanta Braves hat, which
has a letter “A.” Nunez had a tattoo representing the Smiley Drive clique, also affiliated
with 18th Street. Its memb ers wear San Diego Padre hats . Hernandez opined that both were members of the 18th Street gang, with Mojarro in the Alsace clique and Nunez in the Smiley Drive clique. Hern andez also identified a photogr aph of defendant, whom he
believed was a member of the Als ace clique of 18th Street. Presented with a hypothetical mirroring the facts of the shooting at the Moose Lodge, Hernandez opin ed that Hernandez and Bonilla were killed by 18th Street gang members acting in concert for the pur pose of benefitting the gang. Hernandez was asked about the killing of Alex Haro. Based on a hypothetical outlining the events that led to that shooting, the officer stat ed that the crime was carried out for the benefit of the 18th Street gang. Specifically, Hernand ez noted that defendant entered the party uttering a phrase that disres pected the Culver City gang, Culver City was having a party in 18th Street territory and the victim, Haro, was a member of the Culver City gang.
Hernandez believed the shoot ing of Mark Brown also was for the benefit of the gang. Brown was a member of the Rollin 20’s gang, a rival of 18th Street. Defendant approached Brown uttering a di srespectful term for Rollin’ 20 members and shot Brown
in front of a known Rollin 20 ’s hangout. Shooting a ga ng member in the victim’s territory enhanced the shoote r’s gang’s reputation for violen ce and garnered respect for the gang. The prosecution asked Hernandez to consid er the facts relating to the shooting of Kevin Walton, also a Rollin’ 20’s member. Walton was shot minu tes after defendant attempted to kill Brown. Hernandez said Walton’s shooting was ca rried out with the intent to benefit the gang. De fendant was in the process of e liminating as many rivals of 18th Street as possible.23 H. The Forensic Evidence
Thomas Matsudaira is a forensic scientist working in the firearms and tool mark unit of the Orange County laboratory. The la b has a contract with the city of Santa Monica. He examined 26 cartridge casings a nd 15 bullet or bullet fragments, referred to as projectiles, related to the Moose Lodge shooting. With respect to the casings,
Matsudaira determined that 12 were fired from one firearm and 14 were fired from a second weapon. The casings and projectile s were fired from a .9 millimeter semiautomatic pistol. Starr Sachs was employed for 20 years in the Los Angeles Police Department’s
crime lab as a firearms examin er. She test fired a .226 Si g Sauer that was recovered from
defendant when he was arrest ed. She examined 21 cartri dge casings from the Becerra shooting and determined that seven of the casings were fired from the Sig Sauer. The other 14 casings were fired from a second weapon.
Sachs also examined three cartridge casings recovered from the scene of the Kipp shooting and six casings recovered at an unr elated shooting involving a victim named Reddix. The same gun fired the ca sings left at both shootings.
Sachs examined nine .9 millimeter cartridge casings from the Brown shooting. All were fired from the same gun. Sachs examined seven casings from the Wa lton shooting. They were fired from the same gun. The Brown and Walton casings were fired from the same weapon. The Walton and Reddix casings were fired from the same gun. 4 Melissa Popobic is employed as a seni or forensic print specialist by the Los Angeles Police Department and assigned to the la tent print unit. The recovery of latent fingerprints is dependent on the surface in question. The smoother the surface the more likely prints will be discovered and lifted. Firearms are not a good source for lifting

4 Although Sachs offered no opinion with respect to Al ex Haro’s murder, she acknowledged that another examiner wrote in a report that two of the projectiles taken from Haro’s body were fired by different w eapons. Sachs thought the evidence was inconclusive.24 prints, due to the texture of the grips, the presence of oil and the heat generated by the firing of the weapon. Popobic was able to lif t prints from firearms less than ten percent of the time and from cartridge casings le ss than one percent of the time.

I. Defendant’s Arrest Jeff Hofmeyer is a Los Angeles Police De partment detective. On October 13, 2005, he was assigned to the FB I fugitive task force and conduc ted a parole search at the apartment of Daniel Mendez, an associate of defendant. Mendez is a member of the Alsace clique of the 18th Street gang. Be tween 5 a.m. and 6 a. m., Hofmeyer and his team, including Mendez’s paro le officer, knocked on the front door of Mendez’s fourth floor apartment. People inside were movi ng and talking. Even tually, after team members continued to pound on the door, a fe male let them inside. Mendez was not inside the apartment. One of the team members, Lieutenant Pe ter Zarcone, noticed a window. He pulled
the curtain back and opened the window. He observe d defendant crouched down on the window sill. Zarcone grab bed defendant by the should ers and pulled him into the apartment. Zarcone searched defendant and found a holster a ttached to his waistband that contained a fully loaded .226 Sig Sauer handgun. In his pockets, defendant had three loaded magazines and a baggie with loose rounds of ammunition. At first, Zarcone thought defendant was Mendez. Another officer looked at
defendant and noted that he did not look li ke Mendez. The officer asked defendant, ‘“You’re Willie Vasquez, aren’t you?”’ Defe ndant replied, ‘“My name is William. You guys have been looking for me for a long tim e, haven’t you?”’ He then said, ‘“I knew
someone snitched on me. Fuck a snitch. I ha te a snitch. You just remember it’s you guys’ fault somebody’s going to die.”’ As Hofmeyer and others es corted defendant out of the apartment building, defend ant shouted, ‘“Fuck all snitche s. I hate rats. Fuck the
rats. Alsace. Alsace.”’ Hofmeyer transported defendant to the po lice station. In the car, defendant said, ‘“I know you guys have been looking for me for a long time. Shit, I’m the best.”’25 Officer James Ross, who was also in the ve hicle, described defendant’s demeanor as boisterous and arrogant. After arriving at the station, defendant said he noticed that Ross was carrying a Beretta and Hofmeyer had a Glock. Defe ndant commented that those were fucked weapons. He was sure because he was prof icient with guns. He practiced and his preferred weapon was an HK or Sig. As defe ndant exited the car, he said he had angels
tattooed on his head because he was a “dark angel.” Ross was present while defendant was ph otographed with hi s shirt off. On
defendant’s chest was an 18th Street tattoo with the le tter “A” above it. The “A” stood for Alsace. Various photograp hs of defendant depicting hi s tattoos were placed into
evidence.

II The Defense Case A. The Shooting of Hector Bonilla and Jonathan Hernandez Michael Espindola attended the party at the Moose Lodge. He was a member of the Santa Monica gang. Espindolawas a friend of victim Jona than Hernandez. Prior to the shooting, Espindola and a male he knew as “Peanut” (later identified as original codefendant Jose Mojarro) were talking in the parking lot. Es pindola, Mojarro and Hernandez were in custody together as j uveniles. Hernandez called Espindola and Mojarro asked to speak to Hernandez. Af ter the telephone conversation, Hernandez appeared at the parking lot and the three wa lked into the Lodge together. There was no animosity between Hern andez and Mojarro. As Espindola walked into the Lodge, he noticed a male wearing a red shirt and red hat standing near the entrance. He saw Hector Bonilla sitting in the hall. There appeared to be nothing wrong. He went to the bathroom. Espindola was inside the bathroom when he heard gunfire. He went into the hall a nd saw Hernandez on the gr ound. Espindola did not observe anyone fighting or firing a weapon. Mojarro and the male in the red shirt and26 red hat were gone. After Espindola left the Lodge, he was detained by police and
interviewed. Officer Gerardo Leyva interviewed Espi ndola on the night of the shooting. Espindola told him that he noticed Venice 13 and 18th Street gang me mbers at the party. He got nervous when the gang members started staring at him. Espi ndola saw one of his fellow gang members leave the party. Espin dola said he wished the member had stayed
in case there was trouble. The parties stipulated that on the day of the shooting, Espindola made several cell phone calls to Hector Bonilla and Jonathan Hernandez and Bonilla and Hernandez made a number of cell phone calls to Espindola.

B. The Shooting of Alex Haro On January 27, 2002, the da te Alex Haro was shot, Francisco Zaragoza and his family lived across the street from the scene of the party. He was asleep when he heard gunshots. Zaragoza looked out his front wind ow and saw people running. He spoke to a police officer that night, but could not recall whathe said. He was certain that he told the
officer the truth. The parties stipulated that Zaragoza was interviewed at approximately 3:10 a.m. on January 27. He told police that he heard three shots at around 12:30 a.m. He looked
outside his home and heard some one say, ‘“Fuck 18th Street.” ’ Zaragoza saw a white car parked in front of the scen e of the shooting. He obse rved people throwing rocks and
bottles at the vehicle as it left the location. In June 2010, a .45 caliber handgun wa s recovered in the San Fernando Valley after the arrest of two gang members. One was from the Pacas Trece gang and the other was a member of the Knock Knock Boys. Th e parties stipulated that the cartridge casings found at the scene of the Haro shoot ing were fired from the recovered handgun.27 C. The Shooting of Jesse Becerra and Raymundo Ortiz Claudia Chavez attended the party near 21st Street and La Brea. After she left the party, Chavez and her friend, Sergio Perez, were walking on 21st Street. She passed by the victim, Jesse Becerra, who was Perez’s fri end. Perez stopped to talk to Becerra and Chavez walked ahead as she spoke on her telep hone. Two or three people ran by her and she heard gunshots coming from behi nd her. Chavez called 911.

D. The Shooting of Mark Brown Officer Ryan Hicks spoke with Mark Brown as Brown was being taken to the hospital. Brown told him he did not know the shooter, but though t he would recognize him if he saw him again.

E. Expert Testimony Robert Shomer is an expert with resp ect to the factors that affect human perception and memory and eyewitness iden tifications. His opi nions are based on scientific research utilizing ex periments and statistics. He proffered the following to the jury: (1) unlike a camera, the human eye cannot capture everything it perceives; (2) eyewitness identifications have a relatively low level of reliability as compared to those linked by DNA or fingerprints; (3) ev en under the best conditions, factors such as stress and the passage of time betwee n witnessing an event and being asked to identify so meone affect the accuracy of an identification; (4) a
witness’s confidence level in hi s or her identification has little correlation to its accuracy; (5) an identification after a live lineup is more accurate than one made after a photographic show up or a viewing in court; and (6) seeing an individual in multiple showup procedures may affect the accu racy of an identification;
Dr. Ronald Markman has testified as an expert on the subject of drugs “thousands of times over the years.” Methamphetamine is a stimulant28 that interferes with the normal function of th e brain and can cause a person to be “very, very apt to misinterpret an event.” The drug can cause so me to become paranoid and others to become very aggressive. Ecstasy and cocaine can produce similar effects. Dr. Markman looked at the autopsy report prepared in the deaths of Jonathan
Hernandez and Hector Bonilla. At the time of Hernandez’s death, he had a significant amount of amphetamine and me thamphetamine in his system. Bonilla had alcohol, cocaine and marijuana in his system. The injuries Hernandez sustained to his face were consistent with having been
struck four or five times. Dr. Markma n could offer no opinion on how many times Hernandez may have been struck on other parts of his body.

DISCUSSSION
I
Defendant contends the tria l court erred when it allowe d the prosecution to join the Santa Monica Moose Lodge killings (count s one and two) with the other crimes, which took place in Los Angeles. He asserts that joinder of the unrelated crimes “that took place at disparate times and in disparate lo cations was so prejudicial that it deprived him of Fourteenth Amendment due process.” We disagree.
Section 954 allows two or more offenses of the same class of crimes to be consolidated. Defendant sugges ts that the joined crimes in this case did not meet the statutory requirement that they be ‘“connect ed together in their commission”’ because they were committed at different times and loca tions. The test, however, is that, in order to conclude that crimes are connected toge ther, there must exist a ‘“common element of substantial importance in their commission.”’ ( Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1219 ( Alcala ), quoting People v. Scott (1944) 24 Cal.2d 774, 778.) Here, each of the charged murders involved gang members who were gunned down in public. The similarity of the vic tims is akin to the scenario in Alcala where the homicide victims were young, Caucasia n females who all suffered blun t-force facial trauma. The
Alcala court found that the crimes were sufficiently connected. ( Ibid. ) In addition, in the29 present case, there is little question that the intent or motivation fo r the shootings was to eliminate rival gang members. “[T]he intent or motivation with which different acts are committed can qualify as a ‘common elemen t of substantial importance’ in their
commission and establish that such crimes were ‘connected together in their commission.’ [Citation].” ( Ibid. ) We conclude the evidence , viewed in its entirety, sufficiently connects the murd er charges and satisfies the statutory requirements for joinder. Thus, defendant had “the burden to clearly establish a potential of prejudice sufficient to warrant separate trials.” ( People v. McKinnon (2011) 52 Cal.4th 610, 630.)
“We review the trial court’s decision not to sever counts for abuse of discretion
based on the record when the mo tion was heard. [Citation.]” ( People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 281.) A court abuses its discretion if its ruling falls outside the bounds of reason ( Alcala , supra , 43 Cal.4th at p. 1220.) ‘“The factors to be considered are these: (1) the cross-admissibility of the evid ence in separate trials; (2) whether some of the charges are likely to unusually inflame th e jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak
case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offe nse, or the joinder of the charges converts the matter into a capital cas e.’ [Citations.]” ( Id. at pp. 1220–1221.) Even if the trial court’s ruling was correct at the time it wa s made, we “still must determine whether, in the end, the joinder of counts resulted in gross unfairness de priving the defendant of due process of law.” ( People v. Gonzales and Soliz at p. 281

. )

A. Cross-Admissibility of the Evidence Defendant vigorously argues the evidence in the Santa Monica murders and the other murders (which we refer to collectivel y as the Los Angeles murders) was not crossadmissible. The Attorn ey General urges the evidence w ould have been admissible if the matters had been tried separately to estab lish motive and a common scheme or plan. We deem it unnecessary to decide that issue. “[E]ven if cross–admissi bility did not support consolidation of the cases, the absence of cross-admissibility alone would not be30 sufficient to establish prejudice where (1) the offenses were properly joinable under section 954, and (2) no other fa ctor relevant to the assessment of prejudice demonstrates an abuse of discretion. [Citation.]” ( People v. Geier (2007) 41 Cal.4th 555, 577, overruled on another point by Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305.)

B. Whether Some of the Charges We re Likely to Inflame the Jury Defendant argues the sheer number of murder charges served to inflame the jury. In addition, he asserts the brut ality demonstrated by the shoo ter in the Santa Monica case justified severance. Jonathan Hernandez was shot 17 times and Hector Bonilla suffered eight gunshot wounds. Defendant concludes this evidence and th e multiple serious and violent charges “would prompt the jury to trea t the crimes as one ra ther than deal with each separately.” We are not persuaded. Defendant has cited no case that suggests it is appropriate to simply count the number of properly joined charges in determ ining whether severance is required. The authority upon which he relies di scusses the effect of adding charges in an information or
indictment that are not of the same class of crime. That is not the case here. As we noted, the question, properly framed, is whet her some of the joined charges likely unduly inflamed the passions of the jury and thus prejudiced the accused. Although we agree with defendant that the Santa Monica shootings were brutal, the fact of the matter is that the murder of Jesse Becerra was equally heinous. He suffere d 20 gunshot wounds, including nine to the back of the head. Witnesses said the shooter continued to fire at Becerra as he lay on the pavement. Alex Haro was shot three times at point blank range,
twice in the torso and once in the back of the head, because he had the audacity to defend a young man the shooter had assaulted. Si mply put, the Santa Monica murders were no
more violent and senseless as some of th e other charged murders and did not unduly inflame the jury.31 C. The Relative Strength of the Cases Defendant claims “[a] numbe r of the Los Angeles case s were very weak, with identifications fraught with su ggestiveness and inconsistencies. ” Nonetheless, he points only to the Haro shooting as an example. With respect to that charge, defendant was identified by four witnesses; two said he wa s the shooter and two stated he entered the yard with a handgun just be fore the murder occurred. Julian Navarro, who selected defendant’s photograph from a six-pack, was certain of his identification at the time. 5 Selina Redondo, who saw defendant with a handgun shortly before the shooting, observed him twice at her place of employment after the incide nt. She, too, was certain
of her identification. Defendant, while conceding th e identifications in the Becerra and Kipp shootings were strong, asserts that the evidence of in tent was not. He is incorrect. Becerra was
shot after he was asked where he was from. Raymundo Ortiz testified that he knew there was going to be trouble because Becerra answ ered he was from Santa Monica and he was not in Santa Monica gang territory at the time. More to the point, Becerra was shot 20
times. Evidence of intent to kill could not have been cleare r. With respect to the Kipp incident, defendant was convicted of assault with a firearm. To prove intent to commit an assault, the prosecution had to establish that “defendant did an act with a firearm that by its nature would directly a nd probably result in the application of force to a person.” (CALCRIM No. 875.) No othe r evidence of intent was n ecessary. The testimony was more than adequate to demonstrate that de fendant performed the requisite act necessary
to establish defendant’s intent to co mmit an assault with a firearm. The joinder of the Santa Monica murders w ith the other offenses did not bolster an
otherwise weak case.

5 We recognize that Navarro, who select ed defendant’s photograph in February 2002, identified someone else at a lineup that took place five years later in 2007. We also note that Navarro viewed the six-pack less than a month after the shooting.32 D. Death Penalty Considerations Citing Williams v. Superior Court (1984) 36 Cal.3d 441, de fendant claims that because the prosecution sought the death pe nalty, we should “give this case a higher degree of scrutiny than in the run-of-the-m ill consolidation of cases and counts.” However, our Supreme Court observed that, since Williams , “the subsequent enactment of section 790(b)—which, as noted, sp ecifically provides for joinder of capital cases such as these—makes it clear that such a height ened analysis is no longer called for.” ( Alcala , supra , 43 Cal.4th at p. 1229, fn 19.) In add ition, as the Attorney General points out,
unlike the situation in Williams , the joinder of the counts at issue did not give rise to the special circumstances allegation of multiple murder. Defendant was eligible for the death penalty whether the Santa Monica cases were joined or tried separately. (See, e.g., §§ 190.2, subd. (a)(3) [multip le murders, based on Moos e Lodge killings] & 186.22, subd. (f) [murder to further activities of stre et gang].) Because the joinder of the two
cases did not ‘“convert”’ the matter into a capital case, severance was not required. ( Id. at p. 1229) After examining the four factors, we c onclude that defendant failed to carry his burden of clearly establishing “a potential fo r prejudice sufficient to warrant separate trials.” ( People v. McKinnon , supra , 52 Cal.4th at p. 630.) The trial court’s decision to join the charges did not constitu te an abuse of discretion.

E. Defendant’s Right to Due Process Defendant contends the evidence presen ted with respect to the Santa Monica murders made it unlikely that th e jury could give due consider ation to each of the counts arising out of the Los Angeles incidents. W ithout analysis, he argues that “[i]t is highly likely [defendant] would have obtained a bette r result on some of the counts had the two cases been tried separately.” We reject this speculative claim. Finally, seizing on one statement he made while testifying during the retrial of the penalty phase, defendant urges he was denied the opportun ity to testify during the guilt phase. Defendant said that he was mad at hi s attorneys because they “should’ve let [him]33 testify during my guilty [ sic ] phase.” On appeal, he sugg ests he would have testified separately in the Santa Monica case if it had not been joined with the Los Angeles offenses. That is not a fair reading of his st atement at trial, during which he gave no hint that he desired to limit his testimony to only the Santa Monica charges. The joinder of counts did not result in an unfair trial that de prived defendant of due process of law.

II Defendant alleges the photo identification of Cesar Banuelos was the product of a suggestive photo array prepar ed by Santa Monica Police detectives and argues its admission violated his right to due process. 6 He notes witnesses sa id that one of the suspects was wearing a bright red shirt. He complains that after Banuelos identified others who were at the party, detectives s howed him a six-pack with defendant’s picture and told him to concentrate on the suspect w ho had been described as wearing a bright red shirt. Only then, defe ndant argues, did Banuelos select defendant’s picture. In determining whether the admissi on of identification evidence violated defendant’s right to due process, we c onsider whether the procedure was unduly suggestive and unnecessary, and, if so, whether the identification itself was nevertheless reliable under the totality of the circumstances. ( People v. Thomas (2012) 54 Cal.4th 908, 930.) We need not dete rmine whether the identification was reliable unless we find that the procedure utilized was unduly suggestive. ( Id. at pp. 930–931.) Defendant “does not persuade us that he met his burden of showing an unduly suggestive identifica tion procedure.” ( People v. Ochoa (1998) 19 Cal.4th 353, 413.)
Detective told Banuelos to concentrate on th e individual who was wearing the bright red shirt when they showed him the photographic lin eup. They did not suggest anyone in the

6 The Attorney General argues defendantforfeited this contention by failing to secure a ruling on his motion to suppress Banuelo ’s identification in the trial court. In order to forestall a claim of ineffective assistance of counsel, we address defendant’s claim. (See People v. Mitcham (1992) 1 Cal.4th 1027, 1044, fn. 5.)34 array was that individual. More importantly, they did nothing to hint to Banuelos that defendant’s photograph was the one he should select. Certainly if an officer told a witness to concentrate on the face of the pe rson who robbed him a nd nothing more, there would be nothing unduly s uggestive about the procedure. So it is here.
Even if we were to determine that th e procedure utilized was unduly suggestive,
Banuelos’s identification of defendant was reliable. Banuelos had prior contacts with defendant, having seen him in the neighborhood . We observe defendant does not address the issue of reliability. The identification process did not de prive defendant of due process.

III Four witnesses, Carlos Diaz, Salina Re dondo, Erica Diaz and Sheba Robinson did not appear at two court-ordered lineups. Defense counsel moved to exclude Redondo’s
in-court identification due to he r failure to attend the lineup. The trial court declined to do so, noting there was no authority to support the request. Later, when the parties were discussing exhibits, the defense moved to exclude Sheba Robinson’s photographic identification on the same gro und. Again, the court denied the request, deciding that giving what it called the “Fernandez instruction” ( People v. Fernandez (1990) 219 Cal.App.3d 1379) woul d cure the problem.
The trial court modified CALCRIM No. 315 that sets forth the factors the jury
should consider in ev aluating eyewitness identifications. The modification read: “Some
witnesses that testified in court failed to attend the physical lineup, despite being requested to attend. You should view thei r testimony, as to eyewitness identification, with caution as it may be less reliable than if the witness had attended the physical lineup.”
Defendant contends “the tr ial court’s mildest of cautionary instructions was no remedy at all. It rewarded th e People for not ensu ring attendance of witnesses at the live lineups because the court impos ed no sanction whatsoever fo r the denial of legitimate35 discovery.” He urges the court’s failure to exclude the identifications of the four witnesses in question violated his right to due process. 7 We disagree. With respect to the instruc tion given by the trial court, the court had discretion to fashion a remedy short of excluding the iden tifications. Similar instructions were approved in People v. Virgil (2011) 51 Cal.4th 1210, 125 5–1257 (jury told it could consider “‘[t]he failure of a witness to attend a live line-up’ in assessing the accuracy of that witness’s identification”) and People v. Fernandez , supra , 219 Cal.App.3d at pages 1384–1385 (jury instructed it should view testimony of witnesses who failed to attend lineup with caution, as it may be less reliab le). As in those cases, the trial court appropriately instructed the jury here. As to defendant’s complaint regard ing the admission of the witnesses’ identifications, “the Constitutio n does not require exclusion of eyewitness testimony as a sanction for a witness’s failure to attend a lineup.” ( People v. Virgil , supra , 51 Cal.4th at p. 1256.) Defendant attempts to avoid the holding of Virgil by claiming the witness’s identifications were unreliable. First, defe ndant cites no case suggesting that the rule
stated in Virgil applies only to otherwise reliable eyew itness testimony. Second, the jury assessed the strength of the witnesses’ identif ications. Any issue defendant has with its determination is more appropria tely an attack on the suffici ency of the evidence, which
we address below. In his reply brief, defendant also asserts Virgil should not apply because the identification process of witness Banuelos was unduly suggestive and Sheba Robinson was not asked to attend a lineup. Banuelos was not one of the witnesses who failed to attend a lineup and, as we have discussed, the process utiliz ed during his viewing of the photographic lineup was not unduly suggestive. As to Robinson, there would be more
reason to scrutinize the identifi cation of a witness who willfully failed to attend a lineup

7 The Attorney General argues the conten tion was forfeited because defendant did not object on due process grounds in the trial court. For the same reason set forth above, we address defendant’s claim. (See footnote 6, ante .)36 (as was the case with Carlos Diaz, Redondo and Erica Diaz) than one of a witness who
was never asked to attend. The trial court properly exercised its di scretion by reading th e tailored instruction regarding the witnesses who did not appear at the physical lineup.

IV Prior to trial, the parties learned that ca rtridge casings recovered from the scene of the shootings of Donell Kipp and Mark Brown were destroyed, although photographs of the casings remained. The defense motion to exclude testimony relating to those casings
was denied. As we have discussed, the prosecution’s ballistics expert, Starr Sachs, was able to examine the casings from the Ki pp and Brown shootings prior to their destruction. After examining the casings from the Walton homicide , Sachs determined that the casings from the Walton and Brown shootings were fired from the same gun. Sachs also had access to cartridge casings from the Redd ix murder. She concluded th at the casings collected from the scenes of the Kipp, Walton and Reddix sh ootings were fired by the same weapon. In the trial court, the defense objecte d to the evidence relating to the Reddix incident. It was concerned that the jury wo uld reason that Reddix was the victim of a homicide and conclude defendant was responsible. 8 The prosecution responded that the details of the Reddix shooting could be kept from the jury . The defense objection was
overruled. During trial, the prosecution was allowe d to elicit evidence explaining why the Kipp and Brown cartridge casings were destr oyed. Officers testified that because they
were non-homicide cases and no special holds were placed on the evidence, the casings were destroyed. The defense again objected to the Reddix evidence, noting that after the

8 The Attorney General argues defendantforfeited the contention by failing to object pursuant to Evidence Code section 352. We disagree. Defense counsel specifically stated his concern was that th e admission of the evidence would unduly prejudice his client.37 jury learned that casings were subject to destruction because they were collected in a nonhomicide case, it would necessarily conclude that Reddix was a murder case. The trial court overruled the objection, stating that whether the jury would consider the nature of
the Reddix case in this re gard was speculation.
Defendant contends that ad mission of the Reddix eviden ce “was bound to lead to jury speculation and generate irreparable prejudi ce.” As a result, defendant urges, he was
denied a fair trial. The crux of defendant’s argument is that the jury must have concluded
the Reddix case was a homicide and that he was responsible. These assumptions are
unwarranted. As to whether the jury would readily ascertain the Reddix ca se was a homicide,
defendant concedes it was not told that was the case. Instead, he asserts, the testimony concerning how the ballistics evid ence was retained would inexor ably lead it to reach that conclusion. The jury was info rmed that in non-homicide cas es, such as Kipp and Brown,
evidence is held for six months and is dest royed unless a request is made to extend the
hold for another six months. In homicide case s, items are held for one year and requests for extensions are routinely made. Thus, defendant suggests, because the cartridge casings in the Kipp and Brown shootings we re destroyed and those connected to the Reddix case were not, the jury must have conc luded that the Reddix case was a homicide. However, the jury also heard testimony that so metimes evidence is destroyed because the investigating officers are transferred and the new handling detectives are not aware that a new hold request is necessary. In nonhomicid e cases, the evidence may be retained if police so request. The jury easily could have thought the cartridge casings were destroyed for either of these reasons. Of c ourse, this assumes the jury would have been
concerned with the details of the Reddix homicide. Defendant was not charged in connection with that shooting. Instead, th e jury learned the gun used in the Reddix incident, not the perpetrator of that incident, was relevant. This was so because the shell casings from the Kipp, Brown and Walton shoo tings were fired from the same weapon. It is an even greater stretch to accept th at the jury must have determined defendant was guilty of killing Reddix. Defendant argues any juror w ith common sens e would have38 so concluded. To the contrary, because de fendant was not charged with killing Reddix, a reasonable juror would be more likely to co nclude that defendant was not involved. After all, he was charged with murdering five other indi viduals, but not Reddix. In addition, the jury received evid ence that the weapon used to kill Alex Haro was found in the San Fernando Valley eight years after hi s murder in the possession of gang members
who had no connection to this case or to de fendant. Thus, the jurors learned that weapons did not necessarily stay in the posse ssion of the same gang, much less the same
individual. The jury had no reason to ignore the court’s instruction that it was to decide the case based only the evidence presented during th e trial. Defendant’s claim the jury was compelled to decide issues unc onnected to the case and did so to his detriment is without
merit.

V Defendant alleges the trial court deprived him of a fair trial by unduly restricting the testimony of Robert Shomer, his expert on eyewitness identification. He asserts Shomer was barred from answering hypothetic al questions and o ffering his opinions, which were based on professional literature in th e field. As a result, defendant argues, he was prevented from presenting a complete defe nse in a case that was so dependent on eyewitness identification. His clai m is not supported by the record. The court heard the prosecutor’s motion to limit the scope of Shomer’s testimony. At no time during that hearing did the court issue a blanket order barring any testimony, with the exception of Shomer’s opinion re garding the accuracy of the witnesses’ identifications. Defendant does not challeng e that ruling. The court noted that it had heard Shomer testify a number of times. The court reiterated twice that it would rule on objections “on a question-by-question basis.” Contrary to defendant’s complaint, Sh omer was allowed to explain that his knowledge in the field was based on experimental studies and he informed the jury of the results of those studies. Significantly, defendant does not cite any qu estion that his expert39 was not allowed to answer. He broadly urges he could not with specificity cite to the
record what evidence wa s barred “because it was excluded be fore the witness testified.” Not so. Defendant’s expertwas allowed to present his opinion virtually without
restriction. The court sustained two of th e prosecutor’s objections . On both occasions, defense counsel was able to rephrase his que stion and Shomer was allowed to answer. Defendant’s right to present a defense was not infringed.

VI As noted, there were two penalty trials. On November 1, 2011, after the parties completed argument in the second penalty trial, the prosecutor advised the court that his
office had received a letter from an individual identifying himself as Jose Mojarro. Jose Mojarro was a co-defendant in the Moose Lodge shootings and was convicted in a separate trial. Defense counsel acknowled ged receiving the letter, which was dated October 12, 2011. He read the contents of th e letter into the record as follows: “I killed
Richard Haro on West View Boulevard. I s eek no sympathy or any type of sympathetic treatment. I shot him three times, twice in th e chest, once in the head. Sincerely, Jose Mojarro.” The court recessed fo r the morning. That afterno on, the jury was instructed and began deliberations. On the morning of November 3, 2011, th e parties convened in court to discuss a question posed by the jury. After resolving that matter, the follo wing colloquy followed: Defense Counsel: “I thought about the not e from Mojarro, the note that was dated October 12 [and] sent to th e D.A.’s office, and we read it into the record.
The Court: “Yes?” Defense Counsel: “You know, I have no idea of the substance of the materiality
of his claim that he was the one that killed Haro.
The Court: “Yes?
Defense Counsel: “The onl y way I can think of preser ving the substantive - - if there is any substantive value and the delay, a pparent delay in turning over the note, is to bring a motion for a mistrial at this moment.”40 The mistrial motion was denied. On appeal, defendant attemp ts to characterize counsel’ s motion as a request for a
new trial. He then faults the court for not considering the factors se t out in section 1181, subdivision 8, which apply where a motion fo r new trial is brought on the ground of newly discovered evidence. The Attorney Ge neral argues defendant forfeited the claim by failing to move for a new tr ial below. She is correct. At no time during the discussion of the letter purportedly auth ored by Mojarro did
defense counsel utter the words “new trial.” Belatedly, defendant argues a jury would have had serious reservations about finding him guilty of Haro’s mu rder had it known of Mojarro’s letter. The very points defendan t now raises make clear that trial counsel had no intention of moving for a new trial on the gu ilt phase that had been completed almost a year before. If he had, he would have made the same arguments defendant presses now. Trial counsel did not mention the guilt phase of the trial or ask the court to consider the effect of Mojarro’s admission on the jury’s determination th at defendant murdered Haro. Defendant urges counsel’s words are not di spositive. Instead, defendant says, “the substance of his argument contro ls.” We are not persuaded.
The fact is trial counsel did not move for a new trial. In the trial court a defendant must specify the grounds relied upon in making a motion for new trial and a failure to do so forfeits the issue for appeal. ( People v. Gonzales and Soliz, supra, 52 Cal.4th at p. 332.) Trial counsel did not cite section 1181 or assert any grounds suggesting he was seeking a new adjudication of defendant’s guilt with respect to Haro’s murder. The trial court could not err by failing to grant a ne w trial motion that was never brought.

VII Defendant attacks the sufficiency of th e evidence underlying several of the convictions. As to the Moose Lodge homici des (Bonilla and Hernandez), and the Haro and Brown shootings, he alleges there is a lack of evidence demonstrating that he was the shooter. Alternatively, he argues the convic tions for first degree murder in the Moose41 Lodge and Haro incidents must be reduced to either second degree murder or manslaughter. “‘When considering a challenge to the sufficiency of the ev idence to support a conviction, we review the entir e record in the light most fa vorable to the judgment to
determine whether it contains substantial eviden ce – that is, evidence that is reasonable, credible, and of solid value – from which a reasonable trier of fact could find the defendant guilty beyond a reasona ble doubt.’ [Citation.]” ( People v. Avila (2009) 46 Cal.4th 680, 701.) “In so doing a reviewin g court ‘presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.] ‘This standard applies whether dire ct or circumstantial ev idence is involved.’ [Citation.]” ( Ibid. ) With this standard in mind, we examine the evidence presented. With regard to the Moos e Lodge shootings, several w itnesses identified defendant
as one of the shooters. Ramon Mendoza saw the fight break out between the victims and
other males. He identified defendant as one of the shooters after viewing a photographic lineup and at trial. Crispin Yanez, who knew defendant, to ld detectives that defendant was one of the shooters, pointin g out that he continued to fi re his weapon at one of the prostrate victims. At trial, Yanez claimed he lied to police. The ju ry apparently did not believe Yanez’s attempt to distance himself from his earlier identification. Imelda
Martinez told another witness that she believe d defendant, with whom she was familiar,
was one of the shooters. In a ddition, a number of other witn esses said the shooter was at the party wearing a bright red shirt and base ball hat, which is what defendant wore. Several witnesses also testified that they did not recall any other guests dressed in a
similar fashion.
Defendant contends the witnesses to th e Moose Lodge shootings could not have
seen the killers because there were so many people in a dark room, “lit only by dim lamps
on two or three tables.” He sets forth what he perceives to be shortcomings in each witness’s identification. He presented th ese arguments to the jury, and they were rejected. We do not reweigh the evidence . “‘Conflicts and even testimony which is subject to justifiable suspicion do not justif y the reversal of a judgment for it is the42 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.]” ( People v. Lee (2011) 51 Cal.4th 620, 632.) Turning to the murder of Alex Haro, Julian Navarro and Erica Diaz identified defendant as the shooter after viewing photog raphic lineups. In addition, other witnesses said defendant was armed with a gun as he we nt into the backyard, the location where the shooting occurred. Again, defendant argues, as he did to the jury, that inco nsistencies in the witnesses’ testimony rendered it unreliable. However, unless defendant demonstrates that either Navarro’s or Diaz’s testimony was either physically impossible or inherently improbable, the identification of either, standing alone, is sufficient to support defendant’s conviction. ( People v. Young (2005) 34 Cal.4th 1149, 1181.) Defendant has
not met that burden. Alternatively, defendant asse rts that even if the evidence is su fficient to identify him as the shooter, we should reduce his convictions in the Moose Lodge and Haro cases to either second degree mu rder or manslaughter. Howeve r, he does not explain why the evidence fails to support the ju ry’s finding that he committe d first degree murder. “As this contention is perfunctorily asserted withou t any analysis or argument in support, we reject it as not properly raised.” ( People v. Barnett (1998) 17 Cal.4th 1044, 1107, fn. 37.)
We address the evidence in the Walton murder. Kevin Walton was shot at a location that was approximately a quarter to a half mile from where Mark Brown was shot by defendant. This was a distance that could be traveled by car in about a minute. Walton’s shooting was reported to 911 roughl y two minutes after Sheba Robinson called 911 and told the operator th at Brown had been wounded. Brown identified defendant as the person who shot him and the ballistics expe rt stated that the same gun was used to
shoot Brown and Walton. Defendant attacks the testimony of Brow n, who provides the link between the Brown and Walton shootings. Ag ain, it was within the jury’s purview to accept Brown’s43 testimony and we may not dist urb its credibility finding. Relying on the jury’s
conclusion that he did not personally fire the weap on during the Walton murder, defendant urges we must accept he was not the shooter. Even so, as the prosecutor pointed out, at best this reduced defendant’s liability to th at of an aider and abettor to a first degree murder. Defendant does not ex plain why the jury finding on the firearm allegation renders the unde rlying conviction for murder unsupported. Given the relationship between the time a nd location of the two shootings , the jury could reasonably conclude that defendant was present at bot h shootings, personally firing at Brown and assisting in the murder of Walton.

VIII Asserting this was a close case, defendant contends serious errors of Constitutional dimension caused irreparable prej udice. Having rejected his claims of error, we conclude he did not suffer cumulative prejudice. ( People v. Tully (2012) 54 Cal.4th 952, 1020.)

IX
Defendant filed a Pitchess motion seeking citizen co mplaints lodged against
Santa Monica Police Detectives Richard Le wis and John Henry for threatening or harassing witnesses or causing witnesses to make false statements or identifications. In his declaration in support of the motion, defe nse counsel alleged the detectives “harassed, badgered and threatened witnesses Ruben Martinez and Imelda Martinez during the course of this investigation in order to cause them to impli cate [defendant] in the shooting at the Moose Lodge.” The detectives also were accused of thre atening Crispin Yanez into stating that defendant wa s involved in the shooting and using im proper identification procedures to get Ramon Mendoza to identif y defendant’s photograph from a six-pack. As to the allegations of misconduct re lating to Mendoza, Ruben Martinez and Imelda Martinez, the trial court concluded “the re is simply a failure of a legitimate or plausible or possible scenario other than pu re unabridged speculation to involve those officers and for the court to review their pe rsonnel records.” Because defendant’s claim44 with respect to Yanez was based on Yanez’s preliminary hearing testimony, the court deferred ruling on the motion until it read the transcript of the hearing.
Defendant filed an amended Pitchess motion focusing on the interview between
the detectives and Yanez. Counsel’s decl aration outlined Yanez’ s preliminary hearing testimony at which he claimed he lied to detectives about ha ving seen defendant shooting
at the victims in the Moose Lodge. Counsel contended the detectives conspired with officers from the Los Angeles Police Department to obtain false statements from Yanez.
The trial court denied the motion. After noting that it had read Yanez’s preliminary hearing testimony, it stated “[e]ve rything that the witne ss complained of is his own personal feelings.”
Defendant contends the c ourt erred by failing to condu ct an in camera hearing. 9 He argues Yanez testified that he lied to th e detectives and felt compelled to identify
defendant because it was what the detectives wanted to hear. Defendant argues this testimony was enough to support the conclusion that the detectives conspired with other officers to force Yanez to falsely identify defendant as the shooter. His claim is unavailing. Defendant correctly points ou t that to show cause for an in camera review of an officer’s personnel records, he “need de monstrate only ‘a logical link between the defense proposed and the pendi ng charge’ and describe with some specificity ‘how the discovery being sought woul d support such a defense or how it would impeach the officer’s version of events.’ [Citation.]” ( People v. Gaines (2009) 46 Cal.4th 172, 182.) We review a trial court’s ruling on a Pitchess motion under the deferential abuse of discretion standard. ( Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.) Initially, we observe that defendant asse rts the trial court de nied his motion only after improperly determining that Yanez was not a credible witness. He is mistaken. In

9 We are aware that because the court deferred ruling on the motion until it had the opportunity to read Yanez’s preliminary he aring testimony, it decided to review the personnel files of the officers involved for th e convenience of the cu stodian of records. Given our conclusion on this issue, we deem it unnecessary to examine the transcript of that inquiry.45 fact, after the court ruled on the motion, it comme nted that Yanez was not a credible witness and specifically stated thatit “didn’t consider that.” On the merits, defendant theorizes that th e factual scenario set forth in his motion “was plausible because it is more likely that Yanez fingered [him] for the Moose Lodge shooting because he was threaten ed with the death pe nalty in a murder case in which the
detectives knew Yanez was not involved.” Nothing in Yanez’s preliminary hearing testimony supports that conclusion. At no time did Yanez say or suggest that the detectives engaged in misconduct.
He did not accuse them of thr eatening him in any fashion. He assumed that they wanted him to implicate defendant in the shooting atthe Moose Lodge, but he did not point to any instance when the detec tives suggested it would workto his advantage if he
identified defendant. As to defendant’s asse rtion that Yanez was threatened with the death penalty in another cas e, Yanez was questioned by Los Angeles Police Department
detectives in connection with that incident , not by the Santa Monica detectives who were the subject of the Pitchess motion. Defendant’s attempt on appeal to weave a conspiracy to frame him between the Los Angeles and Sa nta Monica detectives fails. Counsel’s declaration in support of the motion did no t attempt to establish a factual scenario, plausible or otherwise, sugges ting such an arrangement.
The trial court’s denial of defendant’s Pitchess motion did not constitute an abuse
of discretion.
DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EPSTEIN, P. J. We concur:

WILLHITE, J. MANELLA, J.