Filed 8/11/15 P. v. Pulido CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JUAN PULIDO,

Defendant and Appellant.

 H039370

 (Monterey County

 Super. Ct. No. SS090535)

Defendant Juan Pulido was convicted by jury trial of first degree murder (Pen. 

Code, § 187, subd. (a)),

1

shooting at an inhabited dwelling (§ 246), attempted murder 

(§§ 187, subd. (a), 664), assault with a firearm (§ 245, subd. (a)(2)), two counts of active 

participation in a criminal street gang (§ 186.22, subd. (a)), and aggravated assault 

(§ 245, subd. (a)(1)). The jury also found true gang (§ 186.22, subd. (b)) and firearm 

(§ 12022.53, subds. (c), (d)) allegations.

2

 Defendant was committed to state prison to 

serve a 28-year determinate term and a consecutive indeterminate term of 50 years to life. 

Defendant contends on appeal that the judgment must be reversed because (1) his 

trial counsel was not permitted to elicit testimony from his accomplice about the 

 

1

Subsequent statutory references are to the Penal Code unless otherwise specified.

2

The jury found not true the premeditation allegation attached to the attempted 

murder count. 
2

accomplice’s discussions with the accomplice’s attorney about their negotiations for a 

plea agreement, (2) the accomplice corroboration instruction was inadequate, (3) the 

court’s instructions on false statements and false testimony were not “balanced,” (4) the 

court gave conflicting instructions on malice, (5) defendant’s trial counsel was 

prejudicially deficient in failing to request a limiting instruction as to evidence of the

accomplice’s guilty plea, and (6) the court erroneously upheld the prosecution’s section 

1054.7 requests for nondisclosure of information. We affirm the judgment.

I. Factual Background

A member of the Salinas Acosta Plaza criminal street gang, a Norteño gang, was

shot in May 2008. In gang culture, a gang will be “ridiculed” if it does not retaliate when 

one of its members is shot. Acosta Plaza gang members wanted to retaliate for the May 

2008 shooting.

3

Acosta Plaza gang members believed that a “big” Sureno lived on Lewis 

Circle in Salinas. 

On November 2, 2008, a woman named Andrea, who owned a white BMW, drove 

defendant, his cousin Jorgé Alejandro Fernandez, and another woman named Andrea 

Johnson from Salinas to a football game in Oakland. Fernandez was an associate of the 

Acosta Plaza gang and had been “hanging out” with Acosta Plaza gang members for a 

couple of months. Fernandez was drinking on the way to the game and after the game.

4

 

Defendant was also drinking and used some cocaine. On their way back from the game, 

Fernandez received a cell phone call for defendant from an Acosta Plaza gang member. 

 

3

The primary activities of the Acosta Plaza gang include murder and attempted 

murder. 

4

Andrea testified that Fernandez was not drunk at any point, but Fernandez testified 

that he was “really drunk” as they drove home. 
3

Fernandez handed his phone to defendant. Fernandez heard defendant say “ ‘Don’t trip. 

I’ll handle it.’” 

Fernandez fell asleep during the drive back to Salinas. When they got back to

Salinas, defendant told Andrea to take them to Acosta Plaza, a street in Salinas that is the 

location of the Acosta Plaza apartment complex, the “main hangout area” for the Acosta 

Plaza gang. At Acosta Plaza, defendant got out of the car for a while and then returned. 

Defendant directed Andrea to another neighborhood in Salinas and had her park her car 

on London Way, which was near Lewis Circle. Defendant and Fernandez got out of the 

car, and the two women remained in the car. Defendant and Fernandez were both 

wearing T-shirts and jeans, and defendant, who was taller and heavier than Fernandez, 

was wearing a black beanie. 

By this point, it was about 10:00 p.m. The two men went to a home on Lewis 

Circle, and Fernandez knocked on the front door.

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 The victim, who was referred to as 

“Little Joe” at trial, lived in this home with his parents and his four younger siblings, 

including his brother Fabian. Little Joe had a history of associating with Sureño gang

members. Little Joe’s mother opened the door and found Fernandez on her porch. 

Fernandez, who was a stranger to Little Joe’s mother, asked if Fabian was there. Little 

Joe’s mother inquired “ ‘what do you want him for’” and asked Fernandez for his name. 

Fernandez said his name was “Alex.” Little Joe’s mother closed the door and went 

upstairs to ask Fabian and Little Joe if they knew someone named Alex. Fabian told her 

that he did not know anyone named Alex. Little Joe said “let me go check who it is.” 

Although Little Joe’s mother said that she would “tell him you’re not here,” Little Joe 

said “let me just go look.” 

 

5

Acosta Plaza gang members believed that a particular white van had been involved 

in the May 2008 shooting. Two weeks after November 2, 2008, a white van that looked 

like that van was parked in the driveway of the home on Lewis Circle where the shooting 

had taken place. 
4

Little Joe went downstairs, opened the door, stepped out, and closed the door 

behind him. Little Joe’s mother remained just inside the door, and she saw that 

Fernandez was on a walkway past a pillar in front of the house when Little Joe stepped 

out. She heard a series of about five gunshots and opened the door. Little Joe ran back

into the house and fell to the floor. He had been struck by bullets in his chest and armpit. 

Little Joe’s mother ran out the door and saw Fernandez and a taller man standing in her 

neighbor’s yard facing each other and doing something with their hands. She yelled at 

them, and Fernandez turned toward her and began shooting at her. She ran back into her 

house. Little Joe died from his wounds. 

A neighbor on Lewis Circle heard two series of gunshots, opened his front door, 

and looked out. He saw two young men running away from the scene of the shooting. 

One of the men was “kind of husky,” and the other man was “medium to slight build.” 

John Doe, who lived on nearby London Way, also heard the gunshots. He looked 

out his upstairs bedroom window and saw two men run toward a parked white BMW and 

get into it. Doe had “a bird’s-eye view” from his window and could see the faces and 

bodies of the men. The men appeared to be wearing white T-shirts and black beanies. 

One of the two men was “a lot thicker and bigger” than the other man. The bigger man 

was “linebacker size,” six feet two or three inches tall, and 260 pounds. Doe “was 

focusing” on the bigger man, and his “mind took a mental photo” of this man. The 

bigger man got into the backseat behind the driver, and the smaller man got into the 

backseat on the passenger’s side. After the men got into the car, the car left the area. 

A minute after defendant and Fernandez left the car, Andrea heard two series of 

gunshots separated by a pause. After the gunshots, Andrea saw Fernandez and defendant 

running back to the car. Defendant got into the backseat of the car behind the driver, and 

Fernandez got into the passenger seat. Fernandez told Andrea “ ‘Go, go.’” Fernandez 

said “ ‘I think I got him,’” and defendant said “ ‘I know I got him.’” Andrea drove them 
5

back to Acosta Plaza, and Fernandez and defendant got out of the car there and ran into 

the apartment complex. 

The police responded to the shooting and found a beer can in the gutter near where 

Andrea’s BMW had been parked on London Way. Fernandez’s fingerprints were found 

on the beer can. A birthday card from Andrea’s mother to Andrea was also found at that 

location. The police contacted Andrea in January 2009, and she told them what had 

happened on November 2, 2008.

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 Fernandez was arrested in January 2009. Defendant 

turned himself in to the police in January 2009. 

Doe spoke to the police shortly after the shooting and again several weeks after the 

shooting. He told the police that “he got a good look at [the bigger man’s] face” and he 

thought he would be able to identify him if he saw him again. He had a “vivid memory” 

of the bigger man. He described the bigger man as six feet two inches tall and around 

250 pounds. In September 2009, 10 months after the shooting, Doe identified defendant 

in a photo lineup as the bigger man he had seen that night.

7

 He “was 90 percent or more 

sure that it was the guy.” 

Although Fernandez and defendant were not housed together in jail, in February 

2011 they were accidentally left together after being transported back from a court 

appearance. An alleged sex offender was also accidentally left with them. Fernandez 

and defendant knew that the man was an alleged sex offender because he wore a green 

wristband. The Acosta Plaza gang had a policy of requiring gang members to attack a 

sex offender if the opportunity arose. After defendant and Fernandez were unshackled, 

defendant told Fernandez that he was going to attack the alleged sex offender. Both 

 

6

There was no discussion of Andrea being placed in the witness relocation program 

until after she had told the police what had happened that night. 

7

At the trial, four years after the shooting, Doe was not able to make a courtroom 

identification of defendant as the bigger man. As the trial court noted, defendant’s 

appearance had changed significantly in the four years between his arrest and the trial. 
6

defendant and Fernandez then attacked the alleged sex offender and repeatedly punched 

him in the head. 

In February 2011 and March 2011, notes were found in defendant’s cell. One of 

these notes listed the Norteño gang’s rules. Its presence in his cell demonstrated that he 

was a member of the Norteño gang. In September 2012, defendant gave Fernandez a 

note suggesting that they needed to get their stories “straight” and “iron out any 

wrinkles.” In his note, defendant said “I think we got a good chance for a hung jury.” 

II. Procedural Background

Defendant and Fernandez were originally jointly charged by information with all 

of the offenses other than the gang counts and the aggravated assault count, which were

alleged only as to defendant. However, in September 2012, Fernandez agreed to plead 

guilty to the murder and attempted murder counts and testify against defendant. 

Defendant testified on his own behalf at trial. He claimed that he had been 

dropped off at his home as soon as they got back to Salinas from Oakland on 

November 2, 2008. He denied receiving any phone calls after the game. Defendant 

testified that he went to sleep as soon as he got home. He knew nothing about the 

shooting until he learned in January 2009 that he was wanted for murder. He turned 

himself in the next day. 

Defendant admitted that he associated with Norteño gang members, but he denied 

that he was a gang member. He also admitted that he had committed the February 2011 

assault. He said he did so because “I have a dislike for rapist” due to something that had 

happened to a family member. Defendant denied that there was any gang motivation for 

that assault. Defendant admitted that he had given Fernandez a note. He explained that 

this note “was more like if he could help me out because, I mean, he knows I haven’t 

been involved in this. . . . I would appreciate help if you help me out. You know, I’ve 

been innocent from the start.” 
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Defendant’s trial counsel argued to the jury that the prosecution’s case was based 

on “a shoddy, questionable identification by Mr. John Doe” and “two questionable selfinterested witnesses [Andrea and Fernandez] who are getting a package deal out of this 

thing.” 

III. Discussion

A. Attorney-Client Testimony

Defendant claims that the trial court prejudicially erred in “preclud[ing] inquiry” 

of Fernandez “about conversations with his own lawyer during the plea negotiation 

process.” He asserts that such questioning was “vitally important” so that defendant 

could “fully explore [Fernandez’s] motive and expectations for testifying.” 

1. Background

Fernandez was arrested two months after the shooting. He originally told the 

police that he had been dropped off before the shooting occurred and knew nothing about 

the shooting. In July 2012, Fernandez asked his attorney to contact the prosecution and 

try to obtain a “deal” based on information that Fernandez could provide about another 

cousin who was also facing murder charges in an unrelated case. Fernandez had 

information that this other cousin had committed an additional murder. Fernandez, who 

believed he was facing 75 years to life, hoped to obtain a “deal” for something less than a 

life sentence. 

Fernandez first spoke to the prosecutor in July 2012. The prosecutor told 

Fernandez that he would have to also testify against defendant. Fernandez met with the 

prosecutor twice more about the other cousin’s case and then twice about defendant’s 

case. He did not admit his role in the November 2008 shooting until his second interview 

with the prosecution. In early September 2012, Fernandez began providing information 

to the prosecution about the November 2008 shooting. Fernandez originally told the 
8

prosecution that he had done nothing wrong and that defendant had fired all of the shots. 

He admitted at trial that his original statements to the prosecutor were lies. 

Just before Fernandez entered into a plea agreement in September 2012, defendant 

gave Fernandez a note stating that they “needed to get our stories straight.” A few days 

later, Fernandez agreed to testify against both defendant and his other cousin. The

written plea agreement, which was in evidence at trial, required Fernandez to testify 

truthfully in the prosecutions of both defendant and his other cousin. Under this plea 

agreement, Fernandez pleaded guilty to murder and attempted murder and admitted a 

gang allegation as to the murder count in exchange for a sentence of 15 years to life and a 

concurrent or consecutive term of as much as nine years. Fernandez testified on crossexamination that he had “hope” that he would be released from prison in 11 years. 

Fernandez testified at trial as a prosecution witness and explained the chronology 

of his initial lies, subsequent attempts to obtain a deal, and eventual agreement to testify.

8

 

He claimed that his memory of the night of the shooting was “choppy” because he was 

“really drunk.” Fernandez insisted that defendant was the one in charge that night. After 

they got out of Andrea’s car on London Way, defendant told Fernandez “ ‘you’re going to 

ask for some fool named Fabian.’” Fernandez knew that there was speculation that a 

“big” Sureno lived on Lewis Circle. 

Fernandez testified that, when Little Joe came out of the house on Lewis Circle, 

Little Joe came toward Fernandez “in an aggressive manner” and said “ ‘Yeah, fool. 

What’s up?’” Fernandez claimed that he was “still drunk” at the time of the shooting, 

and he did not know that defendant had a gun until defendant started shooting. He 

testified that defendant shot Little Joe at close range by putting the gun to Little Joe’s 

“stomach area” and firing four times. Fernandez provided an explanation for his 

subsequent possession of the gun. He testified that, after defendant shot Little Joe, he and 

 

8

Fernandez also testified as an expert on the Acosta Plaza gang. 
9

defendant both ran but “bumped into each other” on the neighbor’s lawn, and defendant 

handed Fernandez the gun. Fernandez claimed that he then ran back and shot twice at a 

shadow in the doorway. He and defendant then ran back to the car. Fernandez testified 

that defendant got into the back seat behind the passenger’s seat well before Fernandez 

reached the car, and Fernandez got into the front passenger’s seat. Inside the car, 

Fernandez testified that he said “ ‘I think I got him.’” 

During cross-examination of Fernandez at trial about his initial decision to seek a 

deal based on information about his other cousin, defendant’s trial counsel asked: “Well, 

was there back-and-forth discussions -- your attorney came and gave you their answer, 

and then you asked for something, you know, and the -- did you and your attorney go 

back and forth to try and identify the areas of what you wanted to talk about?” The 

prosecutor objected to this question on the ground that it “[c]alls for privileged 

information.” The court sustained the objection and stated: “I’m excluding 

conversations. I’m only -- the objection was sustained only as to the conversation 

between him and his attorney, not to conversation between him and his attorney that 

other people attended.” Defendant’s trial counsel continued to extensively question 

Fernandez about his negotiations with the prosecution and the plea agreement. 

The defense theory at trial was that Fernandez had been the only person involved 

in the shooting. “[Defendant] wasn’t even there.” Defendant’s trial counsel argued to the 

jury that Fernandez had a “gigantic incentive . . . to come in and say whatever he wants 

about [defendant]” because he hoped to get out of prison in 11 years. “And, don’t forget, 

he’s the one that sought the deal. The prosecutor didn’t go to him and say, ‘Hey, you 

want to deal with us?’ No. He sought the deal. He sent his attorney. He negotiated for a 

couple of months . . . .” “The deal is because the guy is a proven killer. And he’s getting 

away with it. And he’ll be out in 11 years. [¶] Who else gets out in 11 years for killing 

somebody? Nobody. And this was his only chance. He was looking at so much dark 

time in the future that he was never going to get out.” “[H]e gives testimony that benefits 
10

him, helps him with his deal. Can’t be proven either way. And he expects you to 

swallow it lock, stock and barrel.” “You know that Alex is a liar. You know that he’s a 

murderer.” 

2. Analysis

Defendant’s trial counsel attempted to ask Fernandez if there were “back and 

forth” discussions between Fernandez and his attorney during which Fernandez “asked 

for something” and the two of them tried to “identify the areas” that Fernandez was 

willing to disclose to the prosecution. Defendant insists that by sustaining the 

prosecutor’s objection to this single question on privilege grounds the trial court 

improperly precluded his trial counsel from inquiring into Fernandez’s “motive and 

expectations for testifying” and thereby violated his confrontation rights. 

Defendant premises his claim on several federal cases, which are not binding on 

us. (People v. Bradley (1969) 1 Cal.3d 80, 86.) The California Supreme Court’s 

holdings, which do bind us (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 

450, 455), provide no support for his contention. In People v. Johnson (1989) 47 Cal.3d 

1194 (Johnson), the California Supreme Court rejected the claim that a defendant’s due 

process rights permitted him to invade the attorney-client privilege to attack on crossexamination the credibility of the testimony of a prosecution witness who was the 

defendant’s accomplice and testified as part of a plea bargain. (Johnson, at p. 1228.) In 

People v. Gurule (2002) 28 Cal.4th 557 (Gurule), the California Supreme Court rejected 

a claim based on due process and the confrontation clause that the defense was entitled to 

pretrial access to confidential communications between a prosecution witness and his 

attorney. (Gurule, at p. 594.)

Defendant claims that Gurule is inapposite because it concerned only pretrial 

disclosure of privileged information. But Gurule clearly was not limited to the pretrial 

disclosure context as it relied on Johnson, which, like the case before us, concerned 

cross-examination at trial. While defendant attempts to distinguish Johnson, his 
11

arguments are unsuccessful. While it is true that Johnson involved a due process claim, 

not a confrontation clause claim, Gurule, which relied on Johnson was a confrontation 

clause claim and found no basis for distinguishing Johnson. The fact that Johnson is 

from 1989 is immaterial as it was reaffirmed by Gurule in 2002. The fact that evidence 

was admitted in Johnson of unprivileged conversations between the witness and his 

attorney does not distinguish it from this case. Fernandez testified extensively about 

unprivileged statements made during plea negotiations. 

Defendant’s attempts to identify California authority that supports his position are 

also unsuccessful. The Court of Appeal in People v. Godlewski (1993) 17 Cal.App.4th 

940 (Godlewski) did not hold that the defense had a right to invade the attorney-client 

privilege but instead assumed that there could be circumstances under which such an 

invasion was warranted and found no basis permitting such an invasion in the case before 

it. (Godlewski, at pp. 948-950 & fn. 27.) The Court of Appeal’s assertion in Vela v. 

Superior Court (1989) 208 Cal.App.3d 141 (Vela) that a criminal defendant has a right to 

pretrial access to statements protected by the attorney-client privilege directly conflicts 

with the California Supreme Court’s holding in Gurule and therefore cannot be relied 

upon. (See People v. Petronella (2013) 218 Cal.App.4th 945, 960 [Vela based on cases 

that are “no longer the law.”].)

In any event, the trial court’s ruling was not an abuse of discretion. Defendant 

acknowledges that a trial court has discretion to limit the extent of cross-examination, but 

he argues that the trial court’s ruling was not a proper limit on the extent of crossexamination but an unconstitutional preclusion of any cross-examination in a relevant 

area. The record demonstrates otherwise. Defendant’s trial counsel was not precluded 

from extensively cross-examining Fernandez about the plea agreement, his motivations 

for seeking it, his negotiations with the prosecution regarding it, and his expectations 

concerning the benefit he would obtain from it. There is no indication in the record that

Fernandez’s disclosure of his conversations with his attorney about what he was seeking 
12

from, and offering to, the prosecution would have added anything of significant relevance 

regarding Fernandez’s “motive and expectations for testifying” given the extensive 

testimony elicited from Fernandez on this subject.

“ ‘Generally speaking, the Confrontation Clause guarantees an opportunity for 

effective cross-examination, not cross-examination that is effective in whatever way, and 

to whatever extent, the defense might wish.’” (People v. Wilson (2008) 44 Cal.4th 758, 

794.) “A trial court’s limitation on cross-examination pertaining to the credibility of a 

witness does not violate the confrontation clause unless a reasonable jury might have 

received a significantly different impression of the witness’s credibility had the excluded 

cross-examination been permitted.” (People v. Quartermain (1997) 16 Cal.4th 600, 623-

624.) 

On the record before us, there is no indication that the jury would have been given 

a “significantly different impression” of Fernandez’s credibility if only he had been 

required to testify about his conversations with his own attorney. Defendant argues that 

we cannot uphold the court’s ruling as a proper exercise of discretion because the court 

made a “blanket” ruling and failed to apply a balancing test. He assumes that, because 

the court upheld the prosecutor’s objection on privilege grounds, the court “applied the 

wrong standard” and failed to exercise any discretion. His assertion that “nothing in the 

record suggests” that the court exercised discretion ignores the basic rule that we apply 

on appeal. Where the record does not indicate the trial court’s rationale, we presume that 

the trial court acted properly. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) 

Here, the trial court’s statements on the record did not affirmatively indicate whether it 

utilized a balancing test in upholding the prosecutor’s privilege objection, but neither did 

the court’s statements indicate that the court did not. We therefore presume that the trial 

court exercised its discretion in ruling on this objection. As we find no abuse of 

discretion, we reject defendant’s challenge to the trial court’s ruling on the prosecutor’s 

privilege objection.
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Defendant also claims that his trial counsel was prejudicially deficient in failing to 

seek an in camera hearing to determine the admissibility of Fernandez’s conversations 

with his attorney. When a defendant challenges his conviction based on a claim of 

ineffective assistance of counsel, he must prove that counsel’s performance was deficient 

and that his defense was prejudiced by those deficiencies. (People v. Ledesma (1987) 43 

Cal.3d 171, 218; Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) “The 

defendant must show that there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.” 

(Strickland, at p. 694.) Whenever counsel’s conduct can be reasonably attributed to 

sound strategy, a reviewing court will presume that the conduct was the result of a 

competent tactical decision, and defendant must overcome that presumption to establish 

ineffective assistance. (Strickland, at p. 689)

Defendant makes no attempt to establish that, even if his trial counsel had 

succeeded in obtaining an in camera hearing and even if the trial court had permitted the 

cross-examination that was sought, “the result of the proceeding would have been 

different.” Hence, he cannot establish that any deficiency by his attorney in failing to 

request an in camera hearing was prejudicial and cannot prevail on his ineffective 

assistance claim. 

Defendant nevertheless asks us to remand for an in camera hearing. He cites no 

authority for doing so under these circumstances where the appellate claim is ineffective 

assistance of counsel. Both of the cases he cites involved trial court error, not ineffective 

assistance. In Pennsylvania v. Ritchie (1987) 480 U.S. 39 (Ritchie), the defendant sought 

pretrial disclosure of confidential records of a child protection agency’s investigation of 

the sexual abuse allegations against the defendant. (Ritchie, at p. 43.) The trial court did 

not examine the records but denied the request for disclosure. (Ritchie, at p. 44.) The 

Pennsylvania Supreme Court reversed the defendant’s subsequent conviction and held 

that the defendant was entitled to disclosure of all of the records in the agency’s file. 
14

(Ritchie, at p. 46.) The United States Supreme Court’s plurality opinion directed that, on 

remand, the trial court should review the records in camera and determine whether there 

was information that would have changed the outcome of the trial. (Ritchie, at pp. 58-

59.) People v. Caplan (1987) 193 Cal.App.3d 543 was similar. While there may be a 

basis for a limited remand for an in camera hearing in a case where the trial court has 

erred in failing to conduct, or improperly conducting, an in camera review, no authority 

exists for such a remand where the claim on appeal is ineffective assistance in failing to 

seek an in camera hearing.

B. Corroboration Instruction

Defendant claims that the trial court prejudicially erred in failing to include both 

testimony and statements in the corroboration instruction

9

because there was testimony 

by John Coletti, the prosecutor’s investigator, about Fernandez’s pretrial statement that 

defendant had committed the murder. Defendant’s opening appellate brief cites to a page 

of the reporter’s transcript on which Coletti did give such testimony. However, this 

 

9

The court told the jury that Fernandez “is an accomplice.” “You may not convict 

the defendant, Juan Pulido, of . . . Counts 1 through 7 based upon the testimony of 

[Fernandez] . . . alone. You may use the testimony of an accomplice to convict the 

defendant only if the accomplice’s testimony is supported by other evidence that you 

believe; two, the supporting evidence is independent of the accomplice’s testimony; and 

three, the supporting evidence tends to connect the defendant to the commission of those 

crimes. [¶] Supporting evidence, however, may be slight. It does not need to be enough 

by itself to prove that the defendant is guilty of the charged crimes, and it does not need 

to support every fact mentioned by the accomplice in the statement or about which the 

accomplice testified. [¶] On the other hand, it is not enough if the supporting evidence 

merely shows that a crime was committed or the circumstances of its commission. The 

supporting evidence must tend to connect the defendant to the commission of the crime. 

[¶] The evidence needed to support the testimony of one accomplice cannot be provided 

by the testimony of another accomplice. Any testimony of an accomplice that tends to 

incriminate the defendant should be viewed with caution. You may not, however, 

arbitrarily disregard it. You should give the testimony the weight you think it deserves 

after examining it with care and caution in the light of all the other evidence.” 
15

testimony occurred during an in limine hearing outside the jury’s presence. When Coletti 

testified before the jury, he gave no testimony about Fernandez’s pretrial statements. 

Consequently, there was no prosecution evidence other than Fernandez’s own testimony 

before the jury of pretrial “statements” of Fernandez to which the corroboration 

instruction applied. Since the corroboration instruction already applied to Fernandez’s 

testimony, the trial court did not err in failing to include a reference to “statements” in the 

instruction.

10

C. Instructions on False Statements and False Testimony

Defendant contends that the trial court violated his due process rights by 

instructing the jury that it could infer that defendant was “aware of his guilt” if it found 

that he knowingly made false or misleading statements or “tried to create false evidence 

or obtain false testimony.” He does not contend that these standard pattern instructions 

were legally incorrect. Defendant argues that they violated his rights because the court 

did not also tell the jury that evidence that defendant had promptly turned himself in 

when he learned that he was being sought by the police “support[ed] an inference of 

innocence . . . .” Defendant argues that these instructions were erroneous because “[t]he 

constitution requires instructional equality between the state and the defense.” 

The court instructed the jury: “If the defendant made a false or misleading 

statement before his trial relating to the charged crime knowing the statement was false or 

tending to mislead that conduct may [show] he was aware of his guilt of the crime and 

you may consider it in determining his guilt. [¶] If you conclude that the defendant made 

 

10 We pointed out appellate counsel’s error to him and permitted him to submit 

supplemental briefing on this point. He forthrightly admits his error but claims that the 

instruction still was required to expressly reference “statements.” Since the jury could 

not have misunderstood the need for corroboration of everything to which Fernandez 

testified, the court’s failure to include “statements” in the instruction was not erroneous.
16

the statement, it’s up to you to decide its meaning and importance. However, evidence 

that the defendant made such a statement cannot prove guilt by itself.” “If the defendant 

tried to create false evidence or obtain false testimony that conduct may show that he was 

aware of his guilt. If you conclude that the defendant made such an attempt, it is up to 

you to decide its meaning and importance. However, evidence of such an attempt cannot 

prove guilt by itself.” Defendant did not request any modifications to these instructions 

nor did he request any additional instructions. 

Defendant’s trial counsel objected to these instructions on the ground that they 

were not warranted by the evidence and therefore would be “misleading to the jury,” but 

he does not claim on appeal that these legally correct instructions were not supported by 

the evidence. His appellate contention is solely that these instructions were not 

“balanced” because they did not also instruct the jury on defense evidence that could 

have supported a contrary inference. 

Defendant may not pursue this contention on appeal because he failed to raise it 

below. “A party may not complain on appeal that an instruction correct in law and 

responsive to the evidence was too general or incomplete unless the party has requested 

appropriate clarifying or amplifying language.” (People v. Lang (1989) 49 Cal.3d 991, 

1024, italics added.) Defendant does not claim on appeal that the instructions he now 

challenges were legally incorrect or unresponsive to the evidence. His appellate 

contention is that these instructions were incomplete because they failed to address 

defense evidence that could have led to a contrary inference. Such a contention may not 

be raised for the first time on appeal. 

Defendant’s reliance on Cool v. United States (1972) 409 U.S. 100 (Cool) is 

misplaced. In Cool, an accomplice testified in support of the defense. However, over the 

objections of the defense, the trial court instructed the jury that it could consider the 

testimony of the accomplice only if the jury determined that this testimony was true 

beyond a reasonable doubt. (Cool, at pp. 100-102.) The United States Supreme Court 
17

concluded that the instruction was unconstitutional because it “impermissibly 

obstruct[ed]” the jury’s consideration of exculpatory evidence. (Cool, at p. 104.) 

Unlike the instructions challenged by defendant, the instruction in Cool was not

“correct in the law and responsive to the evidence.” It was legally incorrect because 

defense evidence need not surmount a beyond-a-reasonable-doubt proof barrier in order 

to be considered by the jury. A legally incorrect instruction need not be challenged 

below, but a legally correct instruction that is responsive to the evidence may not be 

challenged on appeal on the ground that it is incomplete unless a request for modification 

was made below. Defendant’s failure to do so bars consideration of his contention on 

appeal.

Defendant’s claim that “unequal standards” were applied to the parties by the trial 

court lacks any basis in the record. Since defendant did not request the instruction that he 

now claims should have been given, the trial court had no opportunity to rule on its 

propriety. It obviously did not reject such a request. Hence, there is no indication that 

the trial court failed to act impartially as to the parties’ instructional requests.

D. Malice Instructions

Defendant claims that the trial court prejudicially erred in giving the jury an 

improper definition of malice. 

The jury was given an instruction identifying, first, the “crimes and allegations 

requir[ing] general criminal intent,” which included “Shooting at an inhabited dwelling,” 

and, second, those “requir[ing] a specific intent or mental state,” which included 

“Murder” and “attempted murder.” This instruction told the jury that, as to the specific 

intent crimes and allegations, “[f]or you to find a person guilty of these crimes or to find 

the allegations true that person must not only intentionally commit the prohibited act, but 

must do so with a specific intent or mental state. The act and the specific intent and 
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mental state required are explained in the instruction for that crime or allegations.” 

(Italics added.) 

The murder instruction (CALCRIM No. 520) properly instructed the jury on the 

malice element of murder. For each other offense, the court gave a separate instruction 

on its elements. An element of the shooting at an inhabited dwelling count is that the 

perpetrator “maliciously and willfully discharge a firearm . . . .” (§ 246, italics added.) 

The shooting at an inhabited dwelling instruction included the following sentence in the 

middle of the instruction: “Someone acts maliciously when he or she intentionally does a 

wrongful act or when he or she acts with the intent to disturb, defraud, annoy or injure 

someone else.” (Italics added.) Neither the oral nor the written instructions on the 

murder offense were in close proximity to the instruction on the shooting at an inhabited 

dwelling offense. The prosecutor’s argument to the jury regarding the murder count 

confirmed that the “malice aforethought” element explained in the murder instruction 

was the one that applied to the murder count. 

Defendant claims that the trial court erred in failing to “specifically tell the jury 

what malice definitions applied to what crimes.” No such failure occurred. The trial 

court expressly instructed the jury, as to the murder count, that “the specific intent and 

mental state required are explained in the instruction for that crime . . . .” This 

instruction unambiguously told the jury where to find the applicable malice definition for 

the murder count. 

Defendant cites People v. Shade (1986) 185 Cal.App.3d 711, People v. Chavez

(1951) 37 Cal.2d 656 and People v. Price (1965) 63 Cal.2d 370, but those cases are 

inapposite. In those cases, the challenged definition of malice was erroneously given in 

connection with a murder count rather than properly given in connection with some other 

count. (Shade at p. 714 [only charge was murder]; Chavez at pp. 666-667 [murder 

prosecution]; Price at p. 372 [murder, robbery and theft prosecution].) Furthermore, in 

each of these three cases, the court concluded that the erroneous definition of malice was 
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not prejudicial because the jury was also instructed on the correct definition of malice 

aforethought. (Shade at pp. 714-715; Chavez at pp. 666-667; Price at p. 374.) 

“[An] instruction ‘may not be judged in artificial isolation,’ but must be 

considered in the context of the instructions as a whole and the trial record. [Citation.] 

In addition, in reviewing [a potentially] ambiguous instruction such as the one at issue 

here, we inquire ‘whether there is a reasonable likelihood that the jury has applied the 

challenged instruction in a way’ that violates the Constitution.” (Estelle v. McGuire

(1991) 502 U.S. 62, 72.) To the extent that there was any room for ambiguity in the 

instructions, the trial court’s express direction to the jury to use the mental state definition 

in the murder instruction eliminated any possibility that the jury would instead utilize the 

challenged sentence in the shooting at an inhabited dwelling instruction. We find no 

error.

E. Ineffective Assistance of Counsel

Defendant contends that his trial counsel was prejudicially deficient in failing to 

request a limiting instruction telling the jury that “it could not also use [Fernandez’s]

guilty plea to infer [defendant’s] guilt of the same charged offenses.” 

Defendant cites and relies on a host of cases involving nontestifying codefendants. 

These cases concerned the absence of an opportunity for confrontation, which is not at 

issue here as Fernandez testified at trial. 

Defendant primarily relies on United States v. Halbert (9th Cir. 1981) 640 F.2d 

1000 (Halbert). In Halbert, two codefendants pleaded guilty and testified against Halbert 

at his conspiracy trial. (Halbert, at p. 1004.) Halbert challenged his conviction on the 

ground that his codefendants’ guilty pleas should not have been disclosed to the jury. 

(Ibid.) The Ninth Circuit Court of Appeals noted that a guilty plea was not admissible as 

evidence of the defendant’s substantive guilt but was admissible on the issue of the 

codefendant’s credibility. (Ibid.) While the admission of the evidence was therefore 
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proper, the Ninth Circuit reversed because the trial court had failed to give a proper 

limiting instruction. (Halbert, at p. 1006.) The district court had told the jury that the 

“disposition of [the codefendants] . . . should not control or influence you in your verdict 

with reference to the remaining defendant, Mr. Halbert. You must base your verdict as to 

him solely on the evidence presented to you in this courtroom.” (Ibid.) The Ninth 

Circuit found this instruction inadequate because it did not tell the jury “in unequivocal 

language that the plea may not be considered as evidence of a defendant’s guilt” but 

“only as evidence of [the codefendants’] credibility.” (Halbert, at pp. 1006-1007.) 

In California, trial courts generally have no obligation to give sua sponte limiting 

instructions. (People v. Hernandez (2004) 33 Cal.4th 1040, 1051.) Halbert’s holding 

that a sua sponte limiting instruction is required where evidence of a testifying 

codefendant’s guilty plea is admitted into evidence does not apply here. As the 

California Supreme Court observed in People v. Williams (2013) 56 Cal.4th 630 

(Williams), where the defense does not object to the admission of evidence of the guilty 

plea but instead “incorporate[s]” it into the defense case, a trial court has no obligation to 

give a limiting instruction. (Williams, at p. 668.) That was the case here. The defense at 

trial was that Fernandez was the sole perpetrator of the November 2008 shooting, and the 

defense argued that he was lying because he was guilty of these crimes and wished to cast 

off some of the blame onto defendant. 

Furthermore, the jury instructions explicitly informed the jury of the appropriate 

limited use it could make of this evidence. The court told the jury: “If you find that a 

witness has committed a crime or other misconduct you may consider that fact only in 

evaluating the credibility of the witness’s testimony.” (Italics added.) In this context, we 

must presume that the decision of defendant’s trial counsel, who was relying heavily on 

Fernandez’s guilt to discredit his testimony, to decline to seek any further limiting 

instruction was a sound strategy aimed at permitting the jury the broadest possible use of 

Fernandez’s guilty plea against Fernandez. (Strickland, supra, 466 U.S. at p. 689) “A 
21

reasonable attorney may have tactically concluded that the risk of a limiting 

instruction . . . outweighed the questionable benefits such instruction would provide.” 

(People v. Maury (2003) 30 Cal.4th 342, 394.) Defendant’s ineffective assistance claim 

cannot succeed on appeal.

11

 

F. Disclosure Under Section 1054.7

The trial court held a series of in camera hearings concerning the prosecutor’s 

requests for nondisclosure under section 1054.7. Statutorily required disclosures may be 

“denied, restricted, or deferred” for “good cause.” (§ 1054.7.) “ ‘Good cause’ is limited 

to threats or possible danger to the safety of a victim or witness, possible loss or 

destruction of evidence, or possible compromise of other investigations by law 

enforcement. [¶] Upon the request of any party, the court may permit a showing of good 

cause for the denial or regulation of disclosures, or any portion of that showing, to be 

made in camera.” (§ 1054.7.) 

Defendant asks this court to review the records of these in camera hearings to 

determine whether the trial court precluded disclosure of any information that would have 

assisted the defense. We have reviewed the records of these in camera hearings. We find 

that the trial court did not err in granting the prosecution’s requests and that the defense 

was not deprived of any material and relevant information that would have assisted the 

defense.

IV. Disposition

The judgment is affirmed.

 

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Defendant argues that the alleged errors were cumulatively prejudicial. As we 

have not identified multiple errors, there is no prejudice to cumulate.
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_______________________________

Mihara, J.

WE CONCUR:

_____________________________

Elia, Acting P. J.

_____________________________

Bamattre-Manoukian, J.