Filed 12/26/13 P. v. Hohner CA4/1 

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT 

DIVISION ONE 

STATE OF CALIFORNIA 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

EDWARD DEAN HOHNER, 

 Defendant and Appellant. 

 D062097 

 (Super. Ct. No. SCD216918) 

 APPEAL from a judgment of the Superior Court of San Diego County, Kerry 

Wells, Judge. Affirmed. 

 Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

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

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Kathryn 

Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent. 

 This case arose out of the murder of two men during an illegal drug transaction at 

Edward Dean Hohner's residence in the City of Oceanside. A jury convicted Hohner of 
2 

two counts of first degree murder (Pen. Code, § 187, subd. (a); victims: Rolando 

Cebreros (count 1) & Francisco Villalobos (count 2)). The jury found true special 

circumstance allegations that Hohner (1) committed the murders while engaged in the 

commission or attempted commission of robbery (Pen. Code, § 211) within the meaning 

of Penal Code section 190.2, subdivision (a)(12), and (2) committed more than one 

murder (Pen. Code, § 190.2, subd. (a)(3)). The jury also found true allegations that 

Hohner personally used a firearm in the commission of the murders (Pen. Code, 

§ 12022.5, subd. (a)(1)). The court sentenced Hohner to two consecutive indeterminate 

terms of life in prison without the possibility of parole, plus a consecutive determinate 

eight-year prison term. 

 Hohner appeals, contending (1) the court committed prejudicial error when it 

allowed Hohner's friend, Eric Hamilton, to testify Hohner had told him he (Hohner) had 

killed before and had gotten away with it; (2) the court committed prejudicial error when 

it allowed former FBI Special Agent James Bird to testify, during the People's rebuttal 

case, about conversations he had with Silvia Camarena,1 the mother of a prosecution 

witness─Arturo Camarena─who testified against Hohner after being granted use 

immunity; (3) the court committed prejudicial error when it failed to sua sponte instruct 

the jury to disregard testimony that Hohner was in custody; and (4) cumulative error 

 

1 We will refer to Silvia by her first name hereafter for the sake of convenience and 

clarity. We intend no disrespect. 
3 

rendered his trial fundamentally unfair. For reasons we shall explain, these contentions 

are unavailing. Accordingly, we affirm the judgment. 

FACTUAL BACKGROUND2

 A. The People's Case

 1. The murders

 On February 21, 1997, Rolando Cebreros and Francisco Villalobos were supposed 

to sell 120 pounds of marijuana to Hohner at his Oceanside home. According to the 

testimony of two eyewitnesses─ Hohner's friend, Camarena, and Hohner's thengirlfriend, Cynthia Araiza, who had testified about the two murders in this matter before a 

grand jury and at the preliminary hearing─Hohner did not buy the marijuana from 

Cebreros and Villalobos. He shot and killed them and took the drugs. 

 Cebreros's wife testified that the day before Cebreros was shot, she and Cebreros 

drove to Hohner's home in a white Volkswagen Jetta so that Cebreros could discuss the 

details of the drug deal. Hohner agreed to pay Cebreros $50,000 for the marijuana. 

 However, Hohner revealed his true plan to his friend Hamilton, who testified that 

Hohner told him he planned to "rip off" or rob "some guy" (Cebreros and Villalobos) 

who would be "bringing up 120 pounds" of marijuana. 

 The day of the murders, Cebreros and Villalobos picked up the marijuana from 

Don Lupe Cervantes and drove to Hohner's home. Araiza and Camarena were also at 

 

2 As Hohner does not challenge the sufficiency of the evidence, our summary of the 

facts here is brief. Additional relevant facts will be discussed, post, as needed. 
4 

Hohner's home. At some point that evening, they were all in the granny flat behind 

Hohner's house playing pool. Villalobos left to pick up some food, and Cebreros, who 

called his wife to inform her he had arrived at Hohner's house, later called her again to 

tell her he was about to head home with the money. Cebreros's wife testified she never 

spoke to him again. 

 Although Araiza─a reluctant prosecution witness─repeatedly stated "I don't recall 

that" when the prosecutor confronted her with her with multiple excerpts from her 2004 

grand jury and 2009 preliminary hearing testimony, her prior testimony showed that, as 

Cebreros and Camarena were playing pool, Hohner whispered to her to leave the room. 

However, Araiza stayed in the room and Hohner then shot Cebreros in the back of the 

head. 

 Camarena's testimony also showed that after Villalobos left to get some food, 

Hohner shot the person with whom Camarena was playing pool─Cebreros─in the back of 

the head and that Araiza was standing next to Hohner when Hohner shot Cebreros. 

 Araiza ran out of the room in shock, and Hohner and Camarena dragged 

Cebreros's body to the bathroom. Camarena testified that he put the body in the shower. 

 Shortly thereafter, Villalobos returned to the house carrying food. Camarena 

testified that Hohner and Villalobos walked into the garage, and he (Camarena) then 

heard a popping noise after the garage door was closed. Camarena also testified that, 

after he heard the popping sound, he waited for Hohner. Shortly thereafter, Hohner came 

out of the garage and went inside the house. Eventually, Hohner and Camarena went 
5 

inside the garage together, and Camarena saw that Villalobos was dead with a hole in his 

head. Camarena indicated that he and Hohner wrapped Villalobos's head with a towel. 

 At trial, Araiza indicated she could not recall the testimony she gave to the grand 

jury and at the preliminary hearing that she saw the man who was carrying food 

(Villalobos) walk into the garage and that she then heard a gunshot. 

 After Hohner shot Cebreros and Villalobos, he and Camarena stashed the 120 

pounds of marijuana, which was in the trunk of Cebreros's white Volkswagen Jetta, in a 

safe house and then drove to Arizona to get rid of the bodies and Cebreros's car. Araiza 

later told a law enforcement officer that Hohner and Camarena cleaned the garage and 

granny flat with liquid chemicals and a material that looked like sawdust. 

 a. Hamilton's testimony about Hohner's alleged admissions 

 Hamilton testified that when Hohner next spoke to him on the phone, Hohner told 

him the "rip-off" did not "go well," but he had gotten the marijuana. Hamilton also 

testified that in later conversations, Hohner told him that "the brain comes out of the 

nose" when someone is shot in the head, and Hohner indicated he had killed before and 

commented that he had "gotten away with it." 

 2. The police investigation

 A former Oceanside Police Department detective testified that when she 

interviewed Hohner, he initially denied the victims were at his house on February 21, 

1997. Hohner later changed that story and told the detective they were there to hang out, 

but he said he had not seen them since. During subsequent police interviews, Hohner 
6 

admitted that Cebreros and Villalobos were at his house to drop off 120 pounds of 

marijuana, but he claimed they left after he paid them. 

 Araiza and Camarena denied knowing anything about the murders for several 

years. However, in 2004 on the day she was going to testify before a grand jury, Araiza 

told Special Agent Bird she had changed her life around and wanted to tell the truth about 

the murders. Araiza then testified about the murders in front of the grand jury. 

 Camarena testified he agreed to testify against Hohner after he (Camarena) was 

granted use immunity for his role in the murders. 

 B. The Defense

 Hohner's defense was that he paid Cebreros $48,000 for the marijuana, and he did 

not kill Cebreros or Villalobos. Nora Cisneros, who used to sell marijuana with Don 

Lupe Cervantes, testified that she and Cervantes had provided the marijuana to the 

victims in this case, but she said it was 500 pounds, not 120 pounds. The victims were 

supposed to pay Cisneros and Cervantes $200,000 in cash after they delivered the 

marijuana. Cisneros testified that Cebreros called her after delivering the marijuana on 

February 21, 1997, and told her that he had been paid, but she never heard from either of 

the victims again and never received payment for the marijuana. 

 Numerous character witnesses testified regarding the character or reputation for 

honesty and truthfulness of prosecution witnesses Araiza, Camarena, and Hamilton. All 

of the witnesses testified similarly: Araiza, Camarena, and Hamilton were liars whose 

testimony could not be trusted. 
7 

 Alfredo Jacobo, who testified in jail blues and admitted he was in custody for 

importing heroin into the jail, stated he had met Camarena through drug dealings. Jacobo 

testified that Camarena told him in prison in late 2007 or early 2008 that he had two 

"calaveras," meaning "skulls," "hits on people," or "kills" on one occasion "under his 

belt." 

DISCUSSION 

I. HAMILTON'S TESTIMONY REGARDING HOHNER'S ADMISSION

 Hohner first contends the court committed prejudicial error when it allowed 

Hamilton to testify Hohner had told him he had killed before and had gotten away with it. 

We reject this contention. 

 A. Background

 During in limine motion proceedings, defense counsel sought to exclude evidence 

of statements Hohner purportedly had made to Hamilton. According to counsel's offer of 

proof, Hamilton would testify that several months after the shootings while Hohner and 

Hamilton were watching a movie in which someone was shot in the head, Hohner said to 

Hamilton, "Oh, that's not what happens. Brains come out of the nose." Defense counsel 

argued the evidence of Hohner's statements was not relevant and should be excluded 

under Evidence Code section 352. 

 The court stated the evidence "[s]ounds relevant," and Hohner's counsel replied: 

"We have no idea, you know, the context of this movie. We have no 

idea if [Hohner] is talking about watching a different movie and 

seeing it happen in a different movie and, oh, that's not what 

happens. [¶] I mean, it could have been removed in time by two or 

three years, as opposed to the following week, for example. I just 
8 

think that it has more prejudicial than probative value and that the 

court should exclude it under [Evidence Code section] 352." 

 The prosecutor argued Hohner's statement was admissible as an admission. The 

prosecutor then indicated Hamilton would also testify that on another occasion Hohner 

told Hamilton he had shot someone in the head and had "gotten away with it." The 

prosecutor argued that "those are classic admissions," and they were relevant "to show 

that [Hohner] committed two murders on that particular date, and these comments were 

made after that time." Hohner's counsel acknowledged he had not yet objected to the 

evidence of these latter statements, but told the court, "I am objecting to those as well, 

Your Honor." 

 1. In limine rulings 

 The court ruled the evidence of Hohner's statement about what happens to the 

brain when someone is shot in the head was admissible as an admission by Hohner. The 

court reasoned that the evidence "does have some relevance" in that "it obviously 

suggests personal knowledge of the effect of shooting someone in the head, which is 

what the charge is in this case." 

 The court also ruled the evidence of Hohner's statements about how he had shot 

someone in the head and had gotten away with it was admissible for the same reasons. 

 2. Hamilton's testimony 

 After testifying that Hohner had told him of his plans to rip off 120 pounds of 

marijuana and later told him that it did not go well, Hamilton testified about certain 

statements (which the court had referred to as admissions) that Hohner made to him after 
9 

Cebreros and Villalobos disappeared. Specifically, the following exchange took place 

between the prosecutor and Hamilton: 

"[Prosecutor:] [W]as there an occasion where you and [Hohner] 

were watching a movie and someone got shot in the head? 

"[Hamilton:] Yes. 

"[Prosecutor:] Do you recall when that was in relation to when you 

had been over there [on February 21, 1997]? 

"[Hamilton:] Several months later. 

"[Prosecutor:] . . . [¶] In the movie, was there something that 

happened to someone as far as someone getting shot in the head? 

"[Hamilton:] Yes. 

"[Prosecutor:] Okay. And did [Hohner] make a comment about 

that? 

"[Hamilton:] Yes. 

"[Prosecutor:] And what did he indicate regarding that? 

"[Hamilton:] He said, it doesn't happen like that, that the brain 

comes out the nose." (Italics added.) [¶] . . . 

"[Prosecutor:] And was there also a different time where you and 

[Hohner] were in a garage and he was talking of killing and he made 

some comments? 

"[Hamilton:] Yes. 

"[Prosecutor:] And what was the comment he made? 

"[Hamilton:] That he's done it before and gotten away with it. 

"[Prosecutor:] And when was that in relation to your going over to 

the scene on February 21st, '97? 
10 

"[Hamilton:] This was a couple of years later. Maybe three or 

four." (Italics added.) 

 B. Applicable Legal Principles

 Evidence Code section 350 provides that only relevant evidence is admissible. 

Evidence Code section 210 defines relevant evidence as "evidence, including evidence 

relevant to the credibility of a witness or hearsay declarant, having any tendency in 

reason to prove or disprove any disputed fact that is of consequence to the determination 

of the action." "'[A] trial court has broad discretion in determining the relevance of 

evidence.'" (People v. Smithey (1999) 20 Cal.4th 936, 973.) 

 1. Evidence Code section 1101

 Evidence Code section 1101, subdivision (a) "prohibits admission of evidence of a 

person's character, including evidence of character in the form of specific instances of 

uncharged misconduct, to prove the conduct of that person on a specified occasion." 

(People v. Ewoldt (1994) 7 Cal.4th 380, 393 (Ewoldt).) Thus, evidence of other crimes or 

bad acts is inadmissible when it is offered to show that a defendant had the criminal 

disposition or propensity to commit the crime charged. (Evid. Code, § 1101, subd. (a).) 

 Evidence Code section 1101, subdivision (b) "clarifies, however, that this rule 

does not prohibit admission of evidence of uncharged misconduct when such evidence is 

relevant to establish some fact other than the person's character or disposition." (Ewoldt, 

supra, 7 Cal.4th at p. 393, fn. omitted.) Specifically, that subdivision provides that 

nothing in Evidence Code section 1101 "prohibits the admission of evidence that a person 

committed a crime, civil wrong, or other act when relevant to prove some fact (such as 
11 

motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or 

accident . . .) other than his or her disposition to commit such an act." (Evid. Code, 

§ 1101, subd. (b).) 

 2. Evidence Code section 352

 If the trial court determines that uncharged misconduct is admissible under 

Evidence Code section 1101, subdivision (b), it must then determine whether the 

probative value of the evidence is " 'substantially outweighed by the probability that its 

admission [would] . . . create substantial danger of undue prejudice, of confusing the 

issues, or of misleading the jury.' " (Ewoldt, supra, 7 Cal.4th at p. 404; Evid. Code, 

§ 352.) 

 The California Supreme Court has explained that "[t]he prejudice which exclusion 

of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or 

damage to a defense that naturally flows from relevant, highly probative evidence. '[All] 

evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. 

The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in 

Evidence Code section 352 applies to evidence which uniquely tends to evoke an 

emotional bias against the defendant as an individual and which has very little effect on 

the issues. In applying [Evidence Code] section 352, "prejudicial" is not synonymous 

with "damaging." ' " (People v. Karis (1988) 46 Cal.3d 612, 638, italics added.) 

 3. Standard of review

 We review the trial court's rulings under Evidence Code sections 1101 and 352 for 

an abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610, 637.) We will not 
12 

disturb the trial court's exercise of discretion except upon a showing that it "exercised its 

discretion in an arbitrary, capricious, or patently absurd manner that resulted in a 

manifest miscarriage of justice." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) 

 C. Analysis

 As noted, Hohner claims the court prejudicially erred in allowing Hamilton to 

testify that after Cebreros and Villalobos disappeared, Hohner had told him that he had 

killed before and had gotten away with it. In support of this claim, Hohner asserts (1) his 

"supposed admission to committing an unsolved murder was not relevant to any issue in 

the case because the context was insufficient to infer he was admitting . . . the charged 

murders because any vague admission to committing a different murder had no tendency 

to prove he committed the charged murders"; (2) this evidence was barred by Evidence 

Code section 1101 because it "only tended to prove [his] criminal propensity"; (3) 

Hamilton's testimony should have been excluded because it "was substantially more 

prejudicial than probative"; and (4) [i]ts admission violated [Hohner's] federal 

constitutional right to due process and a fair trial." These assertions are unavailing. 

 "An admission is often compared to a confession. A confession is a declaration, 

or acknowledgment sufficient to establish guilt of the crime. [Citation.] An admission is 

similar to but less than a confession. It is 'an acknowledgment of some fact or 

circumstance which in itself is insufficient to authorize a conviction, and which tends 

only toward the proof of the ultimate fact of guilt.'" (People v. Zichko (2004) 118 

Cal.App.4th 1055, 1059.) 
13 

 Here, we conclude the court did not abuse its discretion in ruling that the evidence 

of Hohner's statement about what happens to the brain when someone is shot in the head 

and of his statements suggesting he had shot someone in the head and asserting he had 

gotten away with it was admissible. The decision in People v. Hovarter (2008) 44 

Cal.4th 983 (Hovarter) is instructive. 

 In Hovarter, the defendant kidnapped, raped, and killed one woman named Walsh. 

Four months later he kidnapped, raped, and attempted to murder a second woman, A.L. 

(Hovarter, supra, 44 Cal.4th at pp. 989-990, 992.) The defendant was convicted of the 

crimes he committed against the first victim, Walsh, before he was tried for his crimes 

against the second victim, A.L. (Id. at p. 992.) Prior to trial in the case charging the 

defendant with the crimes committed against Walsh, the parties assumed the second 

victim, A.L., would testify that the defendant had told her both that he knew what he was 

doing and that he had committed a similar crime in the past. (Id. at p. 1006.) The 

defendant brought a pretrial motion under Evidence Code sections 1101 and 352 to 

exclude all evidence of his crimes against A.L. (Ibid.) In opposing the motion, the 

People noted that a police officer, Detective Pintane, had interviewed A.L., and, 

according to the detective, she had told him the defendant had told her it "wasn't the first 

time he had done this." (Ibid.) The trial court denied the motion, concluding that the 

evidence of the defendant's statements was admissible "as an admission by the 
14 

defendant," which the Court of Appeal construed as a reference to an exception to the 

hearsay rule set forth in Evidence Code section 1220.3 (Hovarter, at p. 1006.) 

 At trial in Hovarter, the testimony of both A.L. and Detective Pintane provided 

evidence of defendant's statements that linked his crimes against A.L. to those committed 

against Walsh. (Hovarter, supra, 44 Cal.4th at p. 1006.) Specifically, after A.L. 

described for the jury her recollections of being kidnapped, raped, shot twice in the head, 

and left for dead, the prosecutor asked her, "Did the defendant ever tell you that he had 

done this sort of thing before[?]" (Ibid.) A.L. replied, "Yes. He told me that he knew 

what he was doing." (Ibid.) A.L. indicated she understood the defendant's statement to 

mean he knew what he was doing in terms of raping her. (Ibid.) The prosecution also 

presented Detective Pintane's testimony that A.L. told him "her assailant said to her that 

this was not the first time that he had done this and that he knew what to do." (Id. at p. 

1007.) 

 On appeal, the Hovarter court rejected the defendant's contention that his 

statements to A.L. that he knew what he was doing and it was not his first time were too 

speculative and vague to support the inference that he had previously committed a similar 

set of crimes (against Walsh). (Hovarter, supra, 44 Cal.4th at p. 1009.) The Court of 

Appeal concluded that, although the defendant's statements were "somewhat vague," the 

 

3 Evidence Code section 1220 provides: "Evidence of a statement is not made 

inadmissible by the hearsay rule when offered against the declarant in an action to which 

he is a party in either his individual or representative capacity, regardless of whether the 

statement was made in his individual or representative capacity." 
15 

trial court "was within its discretion in concluding that they permitted the inference he 

had committed a similar crime in the past." (Ibid.) 

 The Court of Appeal also rejected the defendant's contention that the evidence of 

his statements should have been excluded on the ground it was not relevant. (Hovarter, 

supra, 44 Cal.4th at p. 1009.) The Hovarter court reasoned that "defendant's comment to 

A.L. that he knew what he was doing suggested he had raped and killed before" (id. at pp. 

1009-1010), and, thus, "it was relevant and . . . admissible to show his state of mind." 

(Id. at p. 1009, citing People v. Gurule (2002) 28 Cal.4th 557, 652 ["defendant's 

statement that he had 'killed before' admissible to show his state of mind in forming the 

plan to commit the crimes"].) The Court of Appeal added that "[i]ts weight was for the 

jury to decide." (Hovarter, at p. 1010.) 

 Here, although the statements Hohner allegedly made to Hamilton─that the brain 

comes out the nose when someone is shot in the head and that he had done it before and 

had gotten away with it─are somewhat vague like the statements made by the Hovarter

defendant, they reasonably suggest (as the trial court found) that Hohner had personal 

knowledge of the effect of shooting someone in the head. Also, Hamilton's testimony, if 

credited, shows that Hohner made those statements after the victims in this case 

disappeared. We conclude the evidence of Hohner's statements had some tendency in 

reason to prove that he intentionally killed the victims in this case by shooting them in the 

head, as Camarena testified he did. The weight of this evidence, like the weight of the 

evidence of the statements of the Hovarter defendant, "was for the jury to decide" 

(Hovarter, supra, 44 Cal.4th at p. 1010). 
16 

 Hohner's contention that this evidence was barred by Evidence Code section 1101 

because it "only tended to prove [his] criminal propensity" is unavailing. We have 

concluded the court correctly ruled that the evidence of Hohner's statements to Hamilton 

was relevant and admissible as an admission showing he committed the murders for 

which he was prosecuted in this case. The record shows the evidence of Hohner's 

statements was not offered to show that he committed uncharged murders and, thus, that 

he had a criminal disposition to commit the charged murders. For example, during 

closing arguments, the prosecutor stated that Hohner "made admissions about the 

murders" (italics added) and that he told Hamilton, "I've done it before and gotten away 

with it." The prosecutor's argument indicated Hohner's admissions specifically pertained 

to the murders of Cebreros and Villalobos charged in this case. 

 We also conclude Hohner's contention that the evidence of his statements to 

Hamilton should have been excluded because it "was substantially more prejudicial than 

probative" is also unavailing. Hamilton's testimony about Hohner's statements was very 

brief, and the jury had already heard Camarena describe the shootings, as well as Araiza's 

prior testimony about the shootings to the grand jury and at the preliminary hearing. For 

purposes of Evidence Code section 352, the evidence of Hohner's statements is not the 

type of unduly prejudicial evidence that "uniquely tends to evoke an emotional bias 

against the defendant as an individual and which has very little effect on the issues" 

(People v. Karis, supra, 6 Cal.3d at p. 638). Furthermore, the record shows the court 

properly instructed the jury under CALCRIM No. 358 that the jury was to decide whether 
17 

Hohner made any of the statements, and, if he did, how much importance the statements 

should be given.4 

 We also reject Hohner's contention that admission of the evidence of his 

statements to Hamilton "violated [his] federal constitutional rights to due process and a 

fair trial." This contention is based on the premise that the evidence of his statements 

was "other crimes" evidence about "another unsolved murder" that was used to prove 

criminal propensity in violation of Evidence Code section 1101, subdivision (a) 

(discussed, ante). We have already rejected this premise. In any event, "[t]he 'routine 

application of state evidentiary law does not implicate [a] defendant's constitutional 

rights.'" (Hovarter, supra, 44 Cal.4th at p. 1010.) 

 Even if we were to conclude the court erred in admitting the evidence of Hohner's 

statements to Hamilton, we would conclude any such error was harmless because Hohner 

has not shown, and cannot demonstrate, it is reasonably probable the jury would have 

reached a more favorable verdict if the court had excluded that evidence. (See People v. 

Fuiava (2012) 53 Cal.4th 622, 671 [applying the Watson5 harmless error test to a claim 

of erroneous admission of evidence].) As already discussed, two 

eyewitnesses─Camarena and Araiza─testified to the details of the double murder in this 

 

4 The court gave the following version of CALCRIM No. 358: "You have heard 

evidence that [Hohner] made . . . oral or written statements before the trial. You must 

decide whether [he] made any of these statements, in whole or in part. If you decide that 

[Hohner] made such statements, consider the statements, along with all the other 

evidence, in reaching your verdict. It is up to you to decide how much importance to 

give to the statements." 

5 People v. Watson (1956) 46 Cal.2d 818, 836. 
18 

case. Although Araiza retreated from her prior incriminating grand jury and preliminary 

hearing testimony by repeatedly and evasively stating "I don't recall" when the prosecutor 

confronted her with excerpts from the transcripts of her prior testimony, she was 

impeached by evidence that she had reinitiated contact with Hohner immediately after her 

testimony at the 2009 preliminary hearing, and she had maintained contact with him after 

that time. As already discussed, the prosecution also presented evidence that Hohner 

revealed to Hamilton his plan to steal 120 pounds of marijuana from the victims and that 

he later told Hamilton that the rip-off did not go well. 

II. ADMISSION OF (1) SPECIAL AGENT BIRD'S REBUTTAL TESTIMONY 

 ABOUT HIS CONVERSATIONS AND VISITS WITH SILVIA AND 

(2) THE LETTER SILVIA RECEIVED

 Hohner also claims the court committed prejudicial error when it (1) allowed 

Special Agent James Bird to testify during the People's rebuttal case about conversations 

he had with Silvia, the mother of a prosecution witness, Camarena,who testified against 

Hohner after being granted use immunity; and (2) admitted into evidence a letter that 

Silvia received. These claims are unavailing because Hohner has forfeited them, and 

even if the claims had been preserved for appellate review, any error was harmless. 

 A. Background

 During the defense case, Barbara Peterson, the manager of the apartment complex 

where Camarena's mother, Silvia, lived, testified about Camarena's reputation in the 

community that he was not trustworthy. When defense counsel asked Peterson whether 

Special Agent Bird had "paid a number of visits" to the apartment complex in order to 

speak to Silvia in relation to this case, she replied, "Yes." 
19 

 Defense counsel also asked Peterson whether she had noticed any sort of "special 

relationship" between Special Agent Bird and the Camarena family. Peterson indicated 

that Silvia continued to call Special Agent Bird for information, even though he had 

retired, and that there was a "lingering relationship." 

 Prior to Peterson's cross-examination, the prosecutor requested a sidebar 

conference, which was not reported. Following the sidebar, Peterson testified on crossexamination that she did not know the reason for the repeated contact between Special 

Agent Bird and Silvia and that she had not heard any of their conversations. 

 Later, the parties revisited the issue outside the presence of the jury. The court 

summarized the prior unreported sidebar discussion, indicating that the prosecutor sought 

to recall Special Agent Bird to explain why he repeatedly contacted Silvia in order to 

counter the suggestion that Peterson's testimony about the contacts and development of a 

relationship between Special Agent Bird and Silvia showed that Special Agent Bird may 

have been trying to influence Camarena's testimony. The court indicated the prosecutor 

had made an offer of proof that Silvia had received what she believed to be a threatening 

letter from Hohner, and Special Agent Bird contacted her to talk to her about her 

concerns about that letter. 

 The prosecutor indicated he only sought to have Special Agent Bird testify he had 

been contacting Silvia because she had received the letter before the preliminary hearing 

and felt frightened. Defense counsel argued the letter was not threatening and sought to 

introduce the entire letter into evidence in order to demonstrate to the jury that it was not 

threatening. 
20 

 Addressing the prosecutor, the court observed: 

"[T]here is certainly a suggestion or an inference that the letter 

[Silvia] received was threatening. She interpreted it as threatening. 

So [defense counsel] is indicating that if you do go there, he wants to 

be able to admit the entire letter. Do you have any objection to 

that?" 

 The prosecutor replied he had no objection "if the circumstances of the letter are 

put in," including the circumstances that Silvia saw it was from Hohner after she read it 

and that Hohner had put someone else's name on the return envelope. 

 Defense counsel raised a general objection to "this whole inquiry," stating: 

"Your Honor, I would object to this whole inquiry. First of all. 

Silvia Camarena is not a witness in this case. Second of all, Barbara 

Peterson basically just said that Agent Bird was visiting Silvia 

Camarena frequently, and therefore she assumed that there was some 

special relationship there. That can mean any number of things." 

(Italics added.) 

 The court then asked Hohner's counsel: 

"Why would you be asking [Peterson], then, about Agent Bird's 

contact with [Silvia] Camarena" You raised the subject." (Italics 

added.) 

 The court then observed: 

"There is no other reason for that testimony regarding the contact 

and/or relationship with Agent Bird other than to suggest he was 

attempting to influence them, influence their testimony, and that's the 

clear inference that was drawn from that. [¶] I mean, I'm just sitting 

here listening just like a juror, and that's, to me, the only inference 

that can be drawn from that. And if in fact that's not why [Agent 

Bird] was visiting [Silvia Camarena], then that's not fair for the 

prosecution not to be able to explain that." (Italics added.) 
21 

 1. Ruling 

 The court then ruled the testimony and letter were admissible. Specifically, 

addressing defense counsel, the court stated: 

"So I am going to let [the prosecutor] explain it. And if [the People] 

put the evidence on regarding the letter and you want to put in the 

full letter to show it's not threatening, I'm going to let you do that. 

I'm going to let you both explain the whole circumstance, because 

the jury is entitled to know." 

 Defense counsel replied, "That's fine." 

 2. Special Agent Bird's rebuttal testimony and admission of the letter into 

evidence

 During the People's rebuttal case, Special Agent Bird testified he had contacted 

Silvia during 2008 and 2009 in order to make sure her son would be available to testify as 

a witness. During one of those contacts, in March 2009, Special Agent Bird went to 

Silvia's residence to deliver a subpoena requiring Camarena to testify at the preliminary 

hearing in this case. Silvia handed a letter to Special Agent Bird and indicated she took it 

as a threat. According to Special Agent Bird, Silvia felt threatened by the letter because 

the envelope showed it was from someone at the George Bailey Detention Center and she 

did not know the person whose name was on the envelope, but as she read the letter she 

realized it was from Hohner. Silvia was concerned by the fact that Hohner had sent the 

letter through a former prisoner who had been released from prison. She indicated 

concern that this former prisoner knew where she lived and might harm her or her family 

in some way. 
22 

 Special Agent Bird explained that he later had other conversations and meetings 

with Silvia regarding the letter and also to serve subpoenas on her son. When asked 

whether he ever contacted Silvia "to tell her what her son should say in court," Special 

Agent Bird replied that he "encouraged [Silvia] many times to have her son be truthful 

with us." 

 On cross-examination, Special Agent Bird acknowledged that the letter Silvia had 

handed to him in March 2009 was signed "El Boy," which was Hohner's nickname. 

Defense counsel asked Special Agent Bird whether he would agree the language in the 

letter did not convey "any implicit or indirect or direct threat of any kind." The 

prosecutor objected, and the court sustained the objection "on relevance grounds." 

 Defense counsel then asked, "[D]o you recall any particular words that could be 

perceived as threats or intimidation?" The court again sustained an objection by the 

prosecutor on relevance grounds and stated: "The letter speaks for itself. The jurors are 

going to get to see it." 

 After the last witness testified, the letter Hohner sent to Silvia was admitted into 

evidence as People's exhibit 16. Defense counsel indicated he had no objection. 

 B. Analysis

 1. Special Agent Bird's rebuttal testimony

 Hohner first claims the court's admission of Special Agent Bird's rebuttal 

testimony about his visits and conversations with Silvia and her statements to him about 

the letter she received was prejudicial error because (1) the testimony was inadmissible 

hearsay, and (2) its admission violated his federal constitutional right to confront his 
23 

accusers. The Attorney General argues this claim "should be deemed forfeited for failure 

to properly object below." We agree. 

 Evidence Code section 353, subdivision (a) provides: "A verdict or finding shall 

not be set aside, nor shall the judgment or decision based thereon be reversed, by reason 

of the erroneous admission of evidence unless: [¶] (a) There appears of record an 

objection to or a motion to exclude or to strike the evidence that was timely made and so 

stated as to make clear the specific ground of the objection or motion." (Italics added.) 

 In accordance with this statute, the California Supreme Court has "established the 

general rule that trial counsel's failure to object to claimed evidentiary error on the same 

ground asserted on appeal results in a forfeiture of the issue on appeal." (People v. Dykes

(2009) 46 Cal.4th 731, 756 (Dykes); see also People v. Partida (2005) 37 Cal.4th 428, 

433-434 (Partida) ["'In accordance with this statute, we have consistently held that the 

"defendant's failure to make a timely and specific objection" on the ground asserted on 

appeal makes that ground not cognizable.'"].) 

 In Partida, the Supreme Court explained the "important purposes" of the 

requirement of a specific objection: "What is important is that the objection fairly inform 

the trial court, as well as the party offering the evidence, of the specific reason or reasons 

the objecting party believes the evidence should be excluded, so the party offering the 

evidence can respond appropriately and the court can make a fully informed ruling. If the 

court overrules the objection, the objecting party may argue on appeal that the evidence 

should have been excluded for the reason asserted at trial, but it may not argue on appeal 

that the court should have excluded the evidence for a reason different from the one 
24 

stated at trial. A party cannot argue the court erred in failing to conduct an analysis it 

was not asked to conduct." (Partida, supra, 37 Cal.4th at pp. 434-435.) 

 Here, we deem forfeited Hohner's claim that the court committed prejudicial error 

by admitting the challenged portions of Special Agent Bird's rebuttal testimony. 

Although Hohner objected through counsel to the introduction of Special Agent Bird's 

rebuttal testimony, he failed to make a specific objection on the grounds now asserted on 

appeal. Specifically, defense counsel stated, "I would object to this whole inquiry." He 

then stated: "First of all, Silvia Camarena is not a witness in this case. Second of all, 

Barbara Peterson basically just said that Agent Bird was visiting Silvia Camarena 

frequently, and therefore she assumed that there was some special relationship there. 

That can mean any number of things." 

 By failing to make in the trial court a specific objection to the admission of 

Special Agent Bird's testimony on the same grounds he now asserts on appeal, Hohner 

denied the prosecution, as the party offering the testimony, the opportunity to respond 

appropriately, and he also denied the trial court the opportunity to make a fully informed 

ruling, thereby thwarting the "important purposes" of the statutory requirement of a 

specific objection. (Partida, supra, 37 Cal.4th at pp. 434-435.) 

 In light of our conclusion, we need not address the Attorney General's arguments 

that (1) Special Agent Bird's testimony was "classic rebuttal testimony", and that (2) the 

prosecution introduced Special Agent Bird's testimony for a nonhearsay purpose because 

his testimony "was not offered to prove that [Hohner] was threatening Silvia; it was 
25 

offered to explain the reason for the repeated contact between Agent Bird and Silvia─that 

she felt threatened." 

 2. The letter Silvia received

 Hohner also claims the court prejudicially erred by admitting into evidence the 

letter Silvia received because any fear she may have felt when she received the letter was 

not relevant, and "[t]he letter lacked an adequate foundation." We deem this claim 

forfeited because Hohner has not shown, and cannot demonstrate, that he objected in the 

trial court to the admission of this evidence on the same grounds he now asserts on 

appeal. (See Evid. Code, § 353, subd. (a); Dykes, supra, 46 Cal.4th at p. 756.) 

 On the contrary, assuming for the sake of argument that the admission of the letter 

was erroneous, the record shows Hohner invited any such error. Under the doctrine of 

invited error, a party who induces the commission of an error is generally estopped from 

asserting the alleged error as grounds for reversal. (People v. Mays (2007) 148 

Cal.App.4th 13, 37.) The California Supreme Court has explained that "'[t]he doctrine of 

invited error is designed to prevent an accused from gaining a reversal on appeal because 

of an error made by the trial court at his behest. If defense counsel intentionally caused 

the trial court to err, the appellant cannot be heard to complain on appeal. . . . [I]t also 

must be clear that counsel acted for tactical reasons and not out of ignorance or mistake.'" 

(People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.) 

 Here, the record shows Hohner's counsel made a tactical decision to seek 

admission of the letter in question. Specifically, defense counsel argued that the letter 

Silvia received was not threatening, and the entire letter should be admitted into evidence 
26 

in order to demonstrate to the jury that it was not threatening. When the court ruled the 

letter was admissible, defense counsel responded, "That's fine." Later, when the court 

admitted the letter into evidence, defense counsel indicated he had no objection. Hohner 

has forfeited his claim of error. 

 3. Any error was harmless

 Even if we were to conclude Hohner did not forfeit his claims of error, and we 

were to assume the court erred, we would also conclude any such error was harmless 

under any standard of prejudice because the evidence of Hohner's guilt was 

overwhelming. As already discussed, the prosecution presented eyewitness testimony 

establishing the details of the double murder Hohner committed in this case. The 

prosecution presented evidence that Hohner revealed to Hamilton his plan to steal 120 

pounds of marijuana from the victims and that he later told Hamilton that the rip-off did 

not go well. The prosecution also properly presented evidence showing that, after the 

murders, Hohner confided to Hamilton he had killed before and had gotten away with it. 

III. CLAIM OF INSTRUCTIONAL ERROR

(HOHNER'S CUSTODY STATUS) 

 Hohner also claims the court committed prejudicial error when it failed to sua 

sponte instruct the jury to disregard testimony that Hohner was in custody. This claim is 

unavailing. 

 A. Background

 Four witnesses─Araiza, Special Agent Andrew Pappas, Hamilton, and Special 

Agent Bird─testified to the fact that Hohner was in custody, and the record shows that 
27 

most of the testimony about Hohner's custody status was elicited by his counsel. When 

the prosecutor asked Araiza about her contact with Hohner in recent years, she briefly 

testified, without a defense objection, about her visits with him in jail. 

 The prosecutor planned to impeach Araiza's testimony regarding the extent of her 

contact with Hohner by calling Special Agent Pappas to testify about the number of times 

Araiza visited Hohner and the number of phone call and e-mails exchanged between 

them. Recognizing that the introduction of this evidence might emphasize for the jury 

the fact that Hohner was in custody, the prosecutor brought the issue to the attention of 

the court and defense counsel outside the presence of the jury before presenting Special 

Agent Pappas's testimony. Defense counsel initially objected to the proposed testimony, 

arguing it was irrelevant hearsay. The court asked defense counsel whether he had any 

concern about the fact that Hohner was in custody and noted that Araiza had already 

testified to Hohner's custody status. After observing that Hohner's custody status was 

"going to come out" if a foundation was laid that Special Agent Pappas had monitored 

the jail contacts, the court again asked defense counsel whether he had any concern about 

that. In response, defense counsel objected "to the entire line of questioning." The court 

overruled the objection and ruled the testimony was admissible. The court then asked 

defense counsel had any other concerns or suggestion, and counsel replied, "No, Your 

Honor." 

 Later, during his testimony on direct examination, Special Agent Pappas testified 

to the number of times Araiza had visited or communicated with Hohner since 2009. He 
28 

did not state how he learned about these communications, and he did not testify that 

Hohner was in custody during this time period. 

 On cross-examination, defense counsel elicited the fact that Hohner was in 

custody. Noting that Special Agent Pappas had testified to 21 phone calls between 

Araiza and Hohner, defense counsel asked him, "That's looking at phone numbers from 

the jail log, correct?" Special Agent Pappas answered, "Yes." 

 During Hamilton's direct examination, the prosecutor asked him when he first met 

Araiza. Without a defense objection, Hamilton replied that he met Araiza right after 

Hohner got out of jail in 1995 or 1996. 

 During the defense case, defense counsel called Special Agent Bird to testify 

about results of forensic tests. Defense counsel asked him, "Now, you're aware that Mr. 

Hohner is in custody right now for distributing marijuana, correct?" After Special Agent 

Bird indicated he was aware, defense counsel elicited testimony that Hohner had been in 

custody for many years by asking, "And you're aware that he has been in custody for a 

federal conspiracy to distribute marijuana conviction and he's been in custody since 

November of 2003 for that offense, correct?" Special Agent Bird answered, "That's 

right." Special Agent Bird then confirmed for defense counsel that, because Hohner was 

in custody, law enforcement authorities always had access to Hohner and knew where to 

find him. 

 During his closing argument, defense counsel told the jury that Hohner "is a 

marijuana dealer and is serving time for that." Counsel later stated that Hohner had been 

in custody since 2003 and told the jury he wanted them to know about Hohner's custody 
29 

status so they would not assume that he had "fled the jurisdiction knowing he was wanted 

for murder and they had to pluck him out of Mexico." Hohner's counsel then reiterated, 

"He has been here in the United States in continuous federal custody since 2003." 

 B. Applicable Legal Principles

 "The trial court is obligated to instruct the jury on all general principles of law 

relevant to the issues raised by the evidence, whether or not the defendant makes a formal 

request." (People v. Blair (2005) 36 Cal.4th 686, 744.) We review de novo a claim of 

instructional error. (People v. Posey (2004) 32 Cal.4th 193, 218.) 

 C. Analysis

 Hohner asserts that, in light of the repeated references to his incarceration during 

trial, his convictions should be reversed because the court's failure to instruct the jury on 

"how to consider, if at all, [his] custodial status" undermined the presumption of 

innocence and violated his federal constitutional right to due process. Hohner 

acknowledges his trial counsel did not request such an instruction, stating he "realizes 

that when the issue is just the defendant's custodial status, as opposed to hi[s] being 

visibly shackled in front of the jury, that the trial court's instructional duty is not sua 

sponte." Agreeing with the Attorney General, Hohner also acknowledges in his reply 

brief that "no case has found a sua sponte duty to instruct jurors to disregard or limit their 

consideration of a defendant's custodial status when the evidence only shows the 

defendant is in custody and is not shackled in court." 
30 

 As a preliminary matter, the Attorney General asserts Hohner has forfeited his 

claim under the doctrine of invited error because he "cannot complain on appeal that the 

trial court erroneously admitted evidence elicited by his own attorney." (Italics added.) 

 As already discussed, under the doctrine of invited error a party who induces the 

commission of an error is generally estopped from asserting the alleged error as grounds 

for reversal. (People v. Mays, supra, 148 Cal.App.4th at p. 37.) However, "'it also must 

be clear that counsel acted for tactical reasons and not out of ignorance or mistake.'" 

(People v. Coffman and Marlow, supra, 34 Cal.4th at p. 49.) 

 Here, the record discussed, ante, establishes that most of the testimony the jury 

heard about Hohner's incarceration was elicited by his trial counsel. Defense counsel's 

closing argument shows he made the tactical decision to emphasize the fact that Hohner 

had been in federal custody since 2003 in order to disabuse the jury of any inference he 

had demonstrated consciousness of guilt by fleeing the jurisdiction after the victims were 

murdered. 

 However, as Hohner correctly asserts, he "is not objecting to admission of the 

evidence of his custodial status─he is objecting to the trial court's failure to explain its 

significance to jurors." (Italics added.) Accordingly, we conclude Hohner has not 

forfeited his claim of error. 

 With respect to the merits, we begin our analysis by noting that "the mere fact that 

the jury is made aware of a defendant's custodial status does not deprive the defendant of 

his constitutional rights." (People v. Valdez (2004) 32 Cal.4th 73, 121.) In Valdez , the 

California Supreme Court explained that, "'in certain circumstances a jury inevitably will 
31 

learn a defendant is in custody for the current charged offense, for example where the 

jury is presented with the testimony of a jailhouse informant.'" (Ibid., quoting People v. 

Bradford (1997) 15 Cal.4th 1229, 1336.) 

 Here, as the Attorney General correctly asserts, "the references to [Hohner's] 

custodial status . . . served valid purposes." The testimony regarding the jail e-mails and 

phone calls was admitted as impeachment evidence to attack Araiza's credibility. 

Defense counsel elicited most of the other references to Hohner's incarceration in order to 

demonstrate the agents' access to him and show he had not fled the jurisdiction. 

 However, we need not decide whether the court had a duty to instruct the jury sua 

sponte on how to consider Hohner's custodial status because, even if we were to assume 

the court erred by failing sua sponte to give such an instruction, any such error was 

harmless under any standard of prejudice. The record shows the jury was fully and 

properly instructed on the presumption of innocence, as well as the prosecution's burden 

of proving all elements of the charged offenses beyond a reasonable doubt. The jury was 

also instructed not to let bias or prejudice influence the verdicts. In addition, the court 

gave a "witness in custody" instruction with respect to witness Alfredo Jacobo, who 

testified in jail attire. Although that instruction did not mention Hohner, it informed the 

jury that "[t]he fact that a witness is in custody does not by itself make a witness more or 

less believable." We presume the jurors understood and followed the trial court's 

instructions. (People v. Hinton (2006) 37 Cal.4th 839, 871.) The jury having been given 

the foregoing instructions, we conclude there is no reasonable likelihood it improperly 

inferred Hohner was guilty of the charged offenses based on the references to his 
32 

custodial status. In any event, as we have already discussed, the evidence of his guilt was 

overwhelming. 

IV. CLAIM OF CUMULATIVE ERROR

 Last, Hohner contends cumulative error rendered his trial fundamentally unfair. 

We reject this contention. 

 "If none of the claimed errors were individual errors, they cannot constitute 

cumulative errors that somehow affected the . . . verdict." (People v. Beeler (1995) 9 

Cal.4th 953, 994, abrogation on other grounds recognized by People v. Pearson (2013) 

56 Cal.4th 393, 462.) 

 Here, we have concluded that all of Hohner's other claims of error are unavailing. 

Specifically, we have concluded the court properly admitted evidence that Hohner 

admitted to a friend that he had killed before and had gotten away with it. We have 

concluded Hohner forfeited his claims that the court erroneously admitted into evidence 

Special Agent Bird's rebuttal testimony and the letter Silvia received; and, even if the 

court erred, any such error was harmless. Last, we have concluded that, assuming 

without deciding the court had a duty to instruct the jury sua sponte on how to consider 

Hohner's custodial status, Hohner's claim that the court erred by failing to give such an 

instruction is unavailing because any such error was harmless under any standard of 

prejudice. We also conclude Hohner has not met his burden of showing the court 

committed cumulative error that rendered his trial fundamentally unfair. 
33 

DISPOSITION 

 The judgment is affirmed. 

 

NARES, Acting P. J. 

WE CONCUR: 

 

 McINTYRE, J. 

 

 O'ROURKE, J.