Filed 9/13/13 P. v. Flores CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

EFREN FLORES,

Defendant and Appellant.

 B241530

 (Los Angeles County

 Super. Ct. No. NA086309)

APPEAL from a judgment of the Superior Court of the County of Los Angeles, 

Arthur Jean, Jr., Judge. Affirmed.

Edward H. Schulman, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Stephanie A. Miyoshi and 

Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
2

INTRODUCTION

A jury found defendant and appellant Efren Flores (defendant) guilty of first 

degree murder and two counts of attempted murder. On appeal, defendant contends that 

there was insufficient evidence to support the guilty verdicts, his trial counsel provided 

ineffective assistance of counsel by failing to object to certain hearsay statements of a 

former codefendant, and the trial court erred by failing to instruct the jury sua sponte on 

accomplice liability. Defendant also challenges his sentence under the gun-use 

enhancement on the grounds that it violates California’s multiple conviction rule and 

principles of double jeopardy.

We hold that there was substantial evidence in support of the jury verdicts, the 

claimed ineffective assistance of counsel was not prejudicial, and the claimed 

instructional errors were not prejudicial. We further hold that defendant’s challenges to 

his sentence under the gun-use enhancement are without merit. We therefore affirm the

judgment of conviction.

FACTUAL BACKGROUND

A. Prosecution’s Case

On the morning of September 14, 2009, Carlos Garcia1—a member of defendant’s 

and former codefendant Jesus Gonzales’s2 Westside Longo gang—walked to a liquor 

store at the corner of 20th Street and Pacific Avenue in Long Beach to buy cigars. After 

he left the liquor store, Garcia had a confrontation with African American and Hispanic 

 

1 Because the trial court found that Garcia was unavailable to testify, the 

prosecution introduced his preliminary hearing testimony at trial. 

2 Garcia knew defendant by the nickname “Grouchy” and Gonzales by the 

nickname “Chuyito” or “Little Chewy.” Gonzales was charged in the same information 

as defendant, but his case was severed prior to trial. 
3

members of the 18th Street gang. As he crossed the street from the liquor store parking 

lot, a van pulled up and the two Hispanic males sitting in the front “started throwing up 

18” gang signs.3In response, Garcia “threw up West Side Longo” gang signs. Garcia 

continued walking, but several African American and Hispanic gang members exited the 

van and began walking toward Garcia. In response, Garcia made a motion, as if he was 

carrying and about to produce a gun, and then kept walking home. 

On the evening of September 14, 2009, at around 10:30 p.m., James Gaither, an 

African American, was sitting on the stairs outside his apartment complex with his 

African American friends David and Robert Tripplet.4 Gaither was sitting at the top of 

the stairs, Robert was located at the middle of the stairs, and David was at the bottom. As 

Gaither and David were text messaging and Robert was listening to his Ipod, two 

Hispanic males walked up to the group. Gaither did not notice the two men until one of 

them starting talking. He heard the words “where you from” and suspected that there was 

going to be trouble. David responded, “we don’t’ bang. We aren’t from nowhere,” 

trying to calm the situation. The same Hispanic male then said, “Fuck Crabs, fuck Crabs, 

where you from. Fuck Crabs. Where you from.”

5 Based on those statements, Gaither 

became certain that “something was about to happen” and he “froze.” 

The male Hispanic who had done all the talking, and who Gaither identified at 

trial as defendant, seemed intoxicated, but the other Hispanic male did not. The other

male Hispanic “grabbed” defendant, as if the two were about to leave. Just as the other 

male Hispanic was pulling defendant away, defendant produced a gun from his pocket, 

pointed at David, and began shooting. Gaither heard gun fire and saw David, who had 

been standing, fall to the ground. 

 

3 Garcia considered anyone who threw 18th Street gang signs at him as an enemy. 

4

To avoid confusion, the Tripplet brothers will be referred to by their first names. 

5 Gaither understood the term “Fuck Crabs” to be an expression of disrespect 

toward Crip gangs. Crip gang members in Long Beach were predominantly African 

American or Asian. 
4

Gaither turned and tried to “get in the house,” but before he could open the door,

he was shot in the hand as he reached for the door knob.

6

 As he turned around to check 

on David and Robert, Gaither saw defendant and the other Hispanic male running away. 

Then he saw Robert “sliding down the stairs, bumping his head as he was going down.” 

Gaither grabbed Robert, turned him over, and started shaking him. Robert’s eyes were 

closed and he was “snoring like he was asleep.” Gaither kept shaking Robert and 

“screaming his name trying to wake him up.” David stood up and told Gaither he was 

going into the house to “get a towel to put on his wounds.” Gaither noticed that David 

had been shot in the face and “somewhere else,” but he was not focused on David 

because he knew David was “alive and talking.” 

David testified that on September 14, 2009, at around 10:00 or 10:30 p.m., he had 

just returned to his apartment from the store with his brother Robert and his friend 

Gaither. He was standing at the bottom of the apartment building’s stairs, Robert was 

sitting in the middle of the stairs, and Gaither was sitting at the top of the stairs. 

According to David, “[t]wo [Hispanic] guys walked up and started banging on [David, 

Robert, and Gaither] asking [them] where [they] were from.” David replied, “No. We 

don’t bang.” The male Hispanic who asked where the men were from responded by 

saying, “Fuck Crabs” two times.7

The male Hispanic who had been speaking, and who David identified at trial as 

defendant, then pulled out a gun and pointed it at David’s face from three or four feet 

away. David put up his hands, but defendant “started shooting.” David felt pain in his 

face, turned, was shot again in the back, and fell to the ground. 

David continued to hear gun shots, as many as four or five. When he stood up, he 

saw Robert lying on the stairs. Robert was not moving, so David went to him to 

determine if he was breathing. After David determined that Robert was still breathing, he 

 

6 Gaither received stitches in his hand at the hospital. 

7 David understood the term “Fuck Crabs” to mean “Fuck Crips.” 
5

went into the house to retrieve a towel and when he came out, the police had arrived. An 

ambulance took David to the hospital where he stayed for a week to receive treatment 

and care for bullet wounds to the face, shoulder, and back. At the time of trial, David 

was still experiencing back pain from his wounds. 

Robert was transported to the hospital where he died. The deputy medical 

examiner who performed the autopsy on Robert found a single, fatal gunshot entry 

wound beneath the right eye. The bullet passed through the brain and was recovered 

from inside the skull cavity. 

According to subpoenaed telephone records, defendant called Garcia at 

approximately 10:55 p.m. the night of the shootings. Garcia, who lived near the scene of 

the shooting, said defendant asked him if he had heard any gunshots. When Garcia 

replied in the negative, defendant asked him if there were police outside. Garcia went 

outside his apartment and confirmed to defendant that there were police near the 

intersection of 20th Street and Cedar Avenue. Defendant then told Garcia that he had 

“laid down some Crabs,” which Garcia understood to mean defendant had shot some 

Crips gang members. Garcia responded “all right then, whatever” and terminated the 

call. 

The next day Garcia walked to defendant’s house and spoke to him about the 

shootings the night before. Defendant told Garcia that he and Gonzales had been at a bar 

watching a Raiders game on the night of the shootings. The two men, who were drunk, 

walked from the bar down 20th Street where they saw some Crips gang members. 

Defendant and Gonzales pretended to be more drunk than they were, “acting like they 

couldn’t walk that good.” 

As defendant and Gonzales approached the three Crips gang members, one of the 

three walked down the stairs, and defendant began to argue with him. According to 

Garcia, “Grouchy hit [the three black Crips gang members] up. And then one of the 

Crips said he ‘didn’t bang,’ but he said, ‘Cuz’ at the end. When he said that, that’s when 

Grouchy just started shooting at them.” After the shooting, defendant and Gonzales ran 

away. 
6

City of Long Beach Police Detective Todd Johnson was one of the officers 

assigned to investigate the shootings of Robert, David, and Gaither. He arrived at the 

scene of the shootings after midnight. Officers at the scene had already recovered two 

bullet fragments. 

During the course of his initial investigation, Detective Johnson developed 

information suggesting that Robert may have been involved in an altercation earlier on 

the day of the shooting. That information, in turn, caused Detective Johnson to 

investigate Garcia. A Crip’s gang member informed the detective that a Hispanic male 

with a “W” on his hat had been involved in an incident at a liquor store on the corner of 

20th Street and Pacific Avenue. A video surveillance tape from the store showed Garcia, 

as well as a group of men who “‘banged’” on Garcia. When Detective Johnson attempted 

to contact Garcia, he learned that Garcia had been arrested on a probation violation. 

During a search of Garcia’s residence, the detective recovered a hat with a “W” on it. 

Detective Johnson next assembled photographs of eight different Hispanic males, 

one of which was a photograph of Garcia. The detective showed the photographs to 

David and Gaither, but neither of them identified Garcia as being involved in the 

shootings. 

Because Detective Johnson suspected that Garcia knew something about the 

shootings, he went to his residence and brought him back to the police station for 

questioning. Garcia initially denied any involvement in the shootings, but after further 

questioning, he admitted that “Drowsy” had called him and told him that “Little Chucky” 

from the West Side Longo gang did the shooting with “Chuyito’s” older brother. 

Detective Johnson knew Drowsy’s telephone number and reviewed records for it, 

but did not find any telephone calls from Drowsy to Garcia during the relevant time 

frame. As a result, he interviewed Garcia a second time. During that second interview, 

Garcia told the detective that “Clover” did the shooting. When Detective Johnson 

investigated Clover, he learned that he was Don Gonzales, the brother of Gonzales and a 

West Side Longo gang member. But when he attempted to locate Clover, the detective 

discovered that he had been incarcerated for immigration related reasons. 
7

Based on the information he obtained on Clover, Detective Johnson and his 

partner, Detective William Mutsubara, interviewed Garcia a third time, and the latter 

portion of that interview was tape recorded. During the recorded portion of the interview, 

which was played for the jury, Garcia provided, inter alia, the “real story.” Garcia 

admitted that the first version of the shootings that he told the detectives was not true, and 

then he explained to the detectives that he learned about the shootings from defendant in 

a telephone conversation the night of the shootings. Defendant telephoned Garcia and 

asked if there were police outside Garcia’s apartment. Garcia went outside and informed 

defendant that he saw the police. In response, defendant said “Yeah, I just laid down 

some crabs . . . .” 

The next day Garcia went to defendant’s house and defendant provided details of 

the shootings. According to defendant, he and Gonzales left a bar after watching a 

Raiders game and as they were walking and acting like they were drunk, they saw “three 

crabs right there where [Garcia] live[d] . . . .” One of the men came down the stairs 

toward defendant who told the men “where he was from.” When the man said, “Oh, we 

don’t bang cuz” defendant “stepped back and he said fuck crabs and he started shooting 

at them and . . . both Chuyito and Grouchy started running away.” 

Garcia informed the detectives that he also spoke to Gonzales after the shootings. 

Gonzales’s version of the shootings was substantially similar to the version defendant had 

given Garcia. According to Gonzales, he and defendant were coming back from 

watching a Raiders game, walking near Garcia’s residence. Gonzales and defendant were 

acting as if they were drunk, holding on to one another. The two men “went up to the 

three black guys that live[d] right there upstairs . . . .” Defendant “hit them up” and told 

them “where he was from . . . .” One of the African American males responded “oh we 

don’t bang cuz” and then defendant “stepped back and . . . just started shooting at them 

and . . . [Gonzales and defendant] started running.” 

In addition to recounting his conversations with defendant and Gonzales about the 

shootings, Garcia told the detectives about the incident at the liquor store that occurred 

earlier on the day of the shootings. That morning, Garcia went to Eddie’s liquor store on 
8

20th Street and Pacific Avenue to buy some cigars. As he was walking home, a 

burgundy van pulled into the parking lot of the liquor store and a male in the front 

passenger seat “[threw] up 18,” causing Garcia to “throw up Longo at him . . . .” Some 

Mexican males and two African American males emerged from the van and began 

walking toward Garcia. In response, Garcia “grabbed [his] little pocket knife from [his] 

key chain and then [he] acted [as] if [he] had a gun or something.” 

Following the detectives’ third interview with Garcia, they asked him to make 

“pretext” phone calls to defendant in an effort to obtain an admission to some type of 

involvement in the shootings. The calls were made over a two-day period in April 2010. 

In July 2010, Detective Johnson interviewed defendant’s girlfriend, Marisa Gallegos,

who informed him that defendant had “concerns about the security of his phone . . . .”

Using a wire tap on defendant’s telephone, the detectives heard several phone 

conversations between Gonzales and defendant. They determined that after Garcia would 

make pretext calls to defendant, Gonzales would receive calls from defendant. 

Using their drivers license pictures, Detective Johnson created “flyers” with 

sketched faces of Gonzales and defendant. Police officers walked around neighborhoods 

passing out the flyers and speaking with residents. They targeted neighborhoods around 

the scene of the shootings. They also passed the flyers out in the territory of the Westside

Longo gang. In addition, they posted the flyers on every front door of defendant’s 

apartment complex, including defendant’s front door. The flyers stimulated “phone 

traffic” between Gonzales and defendant. 

Detective Johnson learned from defendant’s girlfriend, Gallegos, that after the 

flyers were passed out, defendant and Gallegos switched telephones. One text message 

from Gallegos’s telephone that the detectives intercepted read, “Crab killa gang ain’t no 

other way for this longerothang, woopty, woop, woop, weeesst brackkking blood.” 

City of Long Beach Police Detective Sean Magee, who was assigned to the gang 

investigations unit as a gang detective, testified as the prosecution’s gang expert. He was 

familiar with the Westside Longo gang which had a gang injunction issued against its 

members. The Westside Longo gang had approximately 300 members of which 
9

approximately 100 members were active. The gang claimed the area of Long Beach west 

of the Los Angeles riverbed. The scene of the shootings in this case was located in a 

disputed territory claimed by several gangs other than the Westside Longo gang. The 

Westside Longo gang utilized Oakland Raider football team colors—silver and black. 

They also had distinctive hand signs. 

The primary activities of the Westside Longo gang were murders, attempted 

murders, manslaughters, assaults with deadly weapons, robberies, and illegal distribution 

of narcotics, particularly methamphetamine. Garland White and Eric Benites were 

Westside Longo gang members. White was convicted of manslaughter in 2005 and 

Benites was convicted of assault with a deadly weapon in 2008. 

Detective Magee knew that defendant was a Westside Longo gang member based 

on his tattoo and gang graffiti recovered from his room, including graffiti that stated, 

“Grouchy, Longo Beach Crab killing gang.” Defendant’s nickname was Grouchy. The 

term “Crab” was a disrespectful reference to a member of a Crips gang. The Crips in 

Long Beach were predominately African American or Asian. 

Detective Magee also knew that Gonzales was a Westside Longo gang member 

based on Gonzales’s admissions of gang membership, his tattoos, conversations with 

Detective Johnson, and surveillance of Gonzales during the investigation of the shootings 

in this case. His nickname was Chuyito. 

Detective Magee was familiar with the facts of this case. Based on a hypothetical 

question premised on facts that closely mirrored the facts of this case, he opined that the 

shootings in the hypothetical case were committed for the benefit of, at the direction of, 

and in association with a criminal street gang and were committed with the intent to 

promote, further, and assist gang members in their criminal activities. He based his 

opinion on several factors. The shooter’s use of the phrase “Where are you from” was a 

challenge to enemies and the term “Fuck Crabs” was consistent with the Westside Longo 

gang because they were “notoriously racist.” Also, the shootings appeared to be part of a 

plan which was carried out by two Westside Longo gang members who “witnessed 

[each] other” so they could “brag about [the shootings] to others” and verify that the 
10

shootings did occur. The shootings heightened the perpetrators reputation as killers and 

would “strike fear” in any potential witnesses. When gang members were able to instill

fear in a community, it made it easier for gang members to “run a neighborhood” and 

commit crimes, such as illegal narcotics sales. By instilling such fear in a community, 

the gang members had a greater ability to control the streets they claimed for their gang. 

B. Defense Case

The defense called as a witness an expert on eyewitness identifications. The 

expert testified about various issues associated with eyewitness identifications, including 

reliability. According to the expert “sometimes [eyewitnesses] get it right and sometimes 

they get it wrong.”

PROCEDURAL BACKGROUND

In an information, the Los Angeles County District Attorney charged defendant in 

count 1 with the murder of Robert in violation of Penal Code section 187, subdivision 

(a)8; in count 2 with the attempted murder of David in violation of sections 664 and 187, 

subdivision (a); and in count 3 with the attempted murder of Gaither in violation of 

sections 664 and 187, subdivision (a). The District Attorney alleged that all three counts 

were committed for the benefit of, at the direction of, and in association with a criminal 

street gang with the specific intent to promote, further, and assist criminal conduct by 

gang members within the meaning of section 186.22, subdivision (b)(1)(C). The District 

Attorney also alleged as to all three counts that defendant personally used a firearm, 

personally discharged a firearm, and personally discharged a firearm causing great bodily 

injury or death within the meaning of section 12022.53, subdivisions (b), (c) and (d). In 

addition, the District Attorney alleged that a principal personally discharged a firearm 

 

8 All further statutory citations are to the Penal Code, unless otherwise indicated.
11

causing great bodily injury or death within the meaning of section 12022.53, subdivisions 

(d) and (e)(1). 

Following trial, the jury found defendant guilty on all three counts and, as to all 

three counts, found true the allegations that defendant personally discharged a firearm 

causing great bodily injury or death within the meaning of section 12022.53, subdivision 

(d); a principal personally discharged a firearm causing great bodily injury or death 

within the meaning of section 12022.53, subdivisions (d) and (e)(1); and defendant 

committed the charged crimes for the benefit of, at the direction of, and/or in association 

with a criminal street gang with the specific intent to promote, further, and assist in 

criminal conduct by gang members within the meaning of section 186.22, subdivision 

(b)(1)(C). The trial court sentenced defendant to an aggregate sentence of 130 years to 

life comprised of a term of 25 years to life on count 1, plus an additional consecutive 25 

years to life term pursuant to section 12022.53, subdivision (d), for a total sentence of 50 

years to life on count 1; an additional consecutive term of 15 years to life on count 2, plus 

an additional consecutive term of 25 years to life pursuant to section 12022.53, 

subdivision (d), for a total sentence on count 2 of 40 years to life; and an additional 

consecutive term of 15 years to life on count 3, plus an additional consecutive 25 years to 

life term pursuant to section 12022.53, subdivision (d), for a total sentence on count 3 of 

40 years to life. 

DISCUSSION

A. Substantial Evidence

1. Standard of Review

Defendant’s challenge to the sufficiency of the evidence in support of the jury’s 

guilty verdicts on the first degree murder of Robert and the attempted murders of David 

and Gaither is governed by the substantial evidence standard of review. “In assessing . . . 

a claim [of insufficient evidence], we review the record ‘in the light most favorable to the 
12

judgment below to determine whether it discloses substantial evidence—that is, evidence 

which is reasonable, credible, and of solid value—such that a reasonable trier of fact 

could find the defendant guilty beyond a reasonable doubt.’ (People v. Johnson (1980) 

26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738].) ‘The federal standard of review 

is to the same effect: Under principles of federal due process, review for sufficiency of 

evidence entails not the determination whether the reviewing court itself believes the 

evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after 

viewing the evidence in the light most favorable to the prosecution, any rational trier of 

fact could have found the essential elements of the crime beyond a reasonable doubt. 

(Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)’ (People v. Rodriguez (1999) 20 

Cal.4th 1, 11 [82 Cal.Rptr.2d 413, 971 P.2d 618] (Rodriguez).) [¶] Moreover, as 

observed in Rodriguez: ‘The standard of review is the same in cases in which the 

prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 

Cal.4th 764, 792 [42 Cal.Rptr.2d 543, 897 P.2d 481].) “‘Although it is the duty of the 

jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two 

interpretations, one of which suggests guilt and the other innocence [citations], it is the 

jury, not the appellate court[,] which must be convinced of the defendant’s guilt beyond a 

reasonable doubt. “‘If the circumstances reasonably justify the trier of fact’s findings, the 

opinion of the reviewing court that the circumstances might also reasonably be 

reconciled with a contrary finding does not warrant a reversal of the judgment.’” 

[Citations.]’” [Citation.]’ (Rodriguez, supra, 20 Cal.4th at p. 11, italics added; see 

generally People v. Clark (2011) 52 Cal.4th 856, 942-943 [131 Cal.Rptr.3d 225, 261 P.3d 

243] (Clark), and cases cited.)” (People v. Watkins (2012) 55 Cal.4th 999, 1019-1020.)

2. Analysis

Defendant contends that there was insufficient evidence to support a finding that 

he was present during the shooting, much less a finding that he was the shooter. 

According to defendant, the eyewitness identifications of defendant as the shooter made 
13

by David and Gaither were unreliable, as were Garcia’s preliminary hearing testimony

and recorded statements about his conversations with defendant and Gonzales.

Both David and Gaither, who were victims of the shootings, unequivocally 

identified defendant as the shooter in open court. The jury heard their testimony and 

observed their demeanor, and was therefore entitled to give it credence. David was 

standing within three to four feet of the shooter and Gaither was at the top of the stairs 

looking down at the shooter at the bottom of the stairs. Given the proximity of both men 

to the shooter as he spoke prior to firing his handgun, they had ample opportunity to 

observe the shooter, a fact on which the jury was entitled to rely in evaluating the 

veracity and reliability of the witnesses’ identifications. Under the substantial evidence 

standard discussed above, the identification testimony of either David or Gaither, by 

itself, was sufficient to support the jury’s findings that defendant was present during the 

shootings and that he was the shooter. Therefore, because there was not one, but two 

eyewitness identifications, substantial evidence supported the verdicts.

In addition to the eyewitness identifications, the jury heard Garcia’s preliminary 

hearing testimony which was made under oath and subject to cross-examination. The 

jury also heard the recorded statement that Garcia gave to the detectives that substantially 

corroborated his preliminary hearing testimony. Based on that evidence, the jury was 

presented with admissions by defendant and Gonzales that defendant was the shooter. 

Although any one of those admissions, by itself, would have been sufficient to support 

the jury’s verdicts, when they each are considered together with the eyewitness 

identifications, they clearly supported a reasonable inference that defendant was the 

shooter. 
14

B. Ineffective Assistance of Counsel Based on Trial Counsel’s Failure to 

Object to Certain of Gonzales’s Out-of-Court Statements to Garcia

1. Background

Prior to trial, the prosecution filed a motion to introduce at trial certain out-ofcourt statements made by defendant and Gonzales. According to the motion, the night of 

the shooting, defendant called Garcia and admitted he was the shooter. The next day, 

defendant made more detailed statements to Garcia concerning his involvement in the 

shootings. The prosecution’s motion also stated that on the evening the flyers with 

sketches of defendant and Gonzales were posted, Gonzales told his girlfriend that he and 

defendant did the shooting. In support of the motion, the prosecutor argued that both 

defendant’s statements to Garcia and Gonzales’s statements to Hernandez were 

admissible as nontestimonial admissions against penal interest.

At the hearing on the motion, the trial court and the prosecutor had the following 

exchange: “The Court: So you intend to call [Gonzales’s girlfriend] Maria Hernandez. 

And she is going to testify that Mr. Gonzales said that [defendant] was part of this 

murder? [¶] [Prosecutor]: Correct. [¶] The Court: And that’s hearsay. [¶] 

[Prosecutor]: Under Cervantes and Greenberg the People would still argue-- [¶] The 

Court: But this isn’t contravention of Crawford. It is one thing for Hernandez to say 

Gonzales [said] that he did it. That’s a declaration against [Gonzales’s] penal interest. 

But the declaration that [defendant] did it too is not a declaration against [Gonzales’s] 

penal interest. It is a separate issue. [¶] [Prosecutor]: [The] People would argue under 

Greenberger and Cervantes if the declaration is against the person that not only makes 

the statement and you find that he is not exposing his co-defendant in a situation like that, 

to exposure, saying that I was there, he is the one that shot, it is inherently reliable. And 

it should be allowed. [¶] The Court: But the statement that [defendant] did it is not a 

declaration against [Gonzales’s] penal interest. [¶] [Prosecutor]: It exposes him to the 

same amount of culpability as it does defendant Gonzales. [¶] The Court: But it is not a 

declaration against penal interest. Gonzales saying I was there and [defendant] was too 
15

and we both did it, the part that he was there and he did it, is a declaration against [his] 

penal interest. But that [defendant] did it is not a declaration against [Gonzales’s] penal

interest. And Gonzales isn’t here to be cross-examined. So I don’t think it comes in. [¶] 

[Prosecutor]: That’s fine. [The] People submit on that.” 

Although there was discussion at the hearing about Gonzales’s statement to 

Hernandez implicating defendant as the shooter, there was no discussion of Gonzales’s 

similar statement to Garcia implicating defendant as the shooter, which statement was 

contained in the tape-recorded interview of Garcia. At trial, the prosecution did not call 

Hernandez, presumably because of the trial court’s ruling set forth above. But without 

any objection from the defense, the tape recording of Garcia’s interview with the 

detectives was played for the jury, including Garcia’s statement that Gonzales told him 

defendant was the shooter.

2. Applicable Legal Principles

Defendant concedes that he forfeited on appeal his claim that the trial court 

erroneously admitted Gonzales’s statements to Garcia implicating defendant as the 

shooter by failing to object to the relevant portion of Garcia’s tape recorded interview 

with the detectives. Nevertheless, defendant argues that he received ineffective 

assistance of counsel based on his trial counsel’s failure to object. 

“‘To establish a violation of the constitutional right to effective assistance of 

counsel, a defendant must show both that his counsel’s performance was deficient when 

measured against the standard of a reasonably competent attorney and that counsel’s 

deficient performance resulted in prejudice to defendant in the sense that it “so 

undermined the proper functioning of the adversarial process that the trial cannot be 

relied on as having produced a just result.”’ (People v. Kipp (1998) 18 Cal.4th 349, 366 

[75 Cal.Rptr.2d 716, 956 P.2d 1169], quoting Strickland v. Washington [(1984)] 466 U.S. 

[668,] 686.) Preliminarily, we note that rarely will an appellate record establish 

ineffective assistance of counsel. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267-

268 [62 Cal.Rptr.2d 437, 933 P.2d 1134].)” (People v. Thompson (2010) 49 Cal.4th 79, 
16

122.) “We have repeatedly stressed ‘that “[if] the record on appeal sheds no light on why 

counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked 

for an explanation and failed to provide one, or unless there simply could be no 

satisfactory explanation,” the claim on appeal must be rejected.’ (People v. Wilson

(1992) 3 Cal.4th 926, 936 [13 Cal.Rptr.2d 259, 838 P.2d 1212] quoting People v. Pope

(1979) 23 Cal.3d 412, 426 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].) A claim of 

ineffective assistance in such a case is more appropriately decided in a habeas corpus 

proceeding. (People v. Wilson, supra, at p. 936; People v. Pope, supra, at p. 426.)” 

(People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)

3. Analysis

Assuming, without deciding, that defendant’s trial counsel provided ineffective 

assistance of counsel by failing to object to the relevant portion of the tape recorded 

interview of Garcia, any such error was harmless. As discussed above, in addition to 

Gonzales’s statement to Garcia implicating defendant as the shooter, the two surviving 

shooting victims identified defendant at trial as the man who shot them. And defendant 

himself admitted to Garcia in two separate conversations that he was the shooter. Garcia 

testified at the preliminary hearing and was subject to cross-examination by defendant’s 

counsel. Thus, notwithstanding defendant’s contentions as to Garcia’s reliability, the 

additional statement by Gonzales implicating defendant as the shooter was, at best, 

cumulative corroborating evidence. Therefore, trial counsel’s failure to object to that 

statement cannot be said to have so undermined the proper functioning of the adversarial 

process that the trial cannot be relied on as having produced a just result. (See People v. 

Thompson, supra, 49 Cal.4th at p. 122.) To the contrary, given all of the other substantial 

evidence in support of the finding that defendant was the shooter, it was not reasonably 

probable that defendant would have obtained a different result at trial if Gonzales’s 

statement to Garcia had been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.) 

Similarly, given the nature and quality of the other evidence showing that defendant was 
17

the shooter, a reasonable juror could have found defendant guilty of the charged crimes 

beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)

C. Jury Instructions

Defendant contends that the trial court failed to fulfill its sua sponte duty to give 

appropriate jury instructions on accomplice liability under section 1111 concerning 

Gonzales’s statements to Garcia implicating defendant as the shooter. But, as defendant 

concedes, the California Supreme Court has held that a trial court’s failure to instruct on 

accomplice liability is harmless error if there is sufficient corroborating evidence. (See

People v. Lewis (2001) 26 Cal.4th 334, 370.) 

Here, as defendant also concedes, there was sufficient corroborating evidence 

concerning Gonzales’s statements to Garcia implicating defendant as the shooter, 

including defendant’s own admissions against interest that he was the shooter. 

Notwithstanding the holding in People v. Lewis, supra, 26 Cal.4th 334, defendant urges 

us to reconsider the issue and hold that the claimed instructional error was prejudicial. 

Because we are bound by the holding in that Supreme Court case (Auto Equity Sales, Inc. 

v. Superior Court (1962) 57 Cal.2d 450, 455), we must follow it and conclude that the 

claimed failure to instruct on accomplice liability was harmless.

D. Multiple Conviction Rule and Double Jeopardy Principles

Defendant contends that the imposition of a section 12022.53, subdivision (d) 

firearms enhancement on a defendant convicted of murder violates the multiple 

conviction rule set forth in People v. Ortega (1998) 19 Cal.4th 686, 692-694 and People 

v. Pearson (1986) 42 Cal.3d 351, 355-360, as well as federal constitutional principles of 

double jeopardy. According to defendant, the factual element essential to establishing the 

section 12022.53, subdivision (d) enhancement—discharge of a firearm causing death—
18

is necessarily subsumed within the elemental components of murder—proximately 

causing the death of the victim.

Defendant concedes, as he must, that two California Supreme Court decisions 

have rejected his contention under California’s multiple conviction rule. (People v. Sloan 

(2007) 42 Cal.4th 110, 115-125 and People v. Izaguirre (2007) 42 Cal.4th 126, 130-134.) 

Because we are bound by those decisions under Auto Equity Sales, Inc. v. Superior Court, 

supra, 57 Cal.2d at page 455, we reject defendant’s contention that his punishment 

violated California’s multiple conviction rule.

Defendant also concedes that, historically, federal double jeopardy has not applied 

to multiple punishment within a unitary trial, but contends that recent United States 

Supreme Court decisions “suggest” that it now should. Again, because there is California 

Supreme Court and United States Supreme Court authority holding that multiple criminal 

punishments that arise out of a unitary criminal proceeding do not implicate federal 

double jeopardy principles, People v. Sloan, supra, 42 Cal.4th at page 121, Hudson v. 

United States (1997) 522 U.S. 93, 99, we are bound to follow that authority and reject 

defendant’s double jeopardy contention.

DISPOSITION

The judgment of conviction is confirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

TURNER, P. J.

KUMAR, J.