Filed 5/9/13 P. v. Harris CA2/3 Opinion following order recalling remittitur and reinstating appeal NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. CHRISTOPHER HARRIS et al., Defendants and Appellants. B222583 (Los Angeles County Super. Ct. No. BA284216)

APPEAL from judgments of the Superior Court of Los Angeles County, Charlaine F. Olmedo, Judge. Affirmed. Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant Christopher Harris. Mark Shapiro for Defendant and Appellant Kwana Harris. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant A ttorney General, Stephanie A. Miyoshi and Eric J. Kohm, Deputy Attorneys Gene ral, for Plaintiff and Respondent.

_________________________2 Christopher Harris and Kwana Harris a ppeal the judgments entered following their convictions by jury of first degree murd er of Eric Alexander. (Pen. Code, § 187.) Christopher Harris also appeals his convicti on by jury of second degree murder of Kevin Decoud. The jury fo und Christopher Harris committe d these offenses for the benefit of a criminal street gang (Pen. Co de, § 186.22, subd. (b)(1)), personally and intentionally discharged a firearm causi ng death (Pen. Code, § 12022.53, subd. (d)), and committed multiple offenses of murd er (Pen. Code, § 190.2, subd. (a)(3)). The jury also convicted Christopher Ha rris of second degree robbery (Pen. Code, § 211) in which he personally used a firear m (Pen. Code, § 12022.5 3, subd. (b)), and unlawful possession of a firearm (Pen. Code, § 12021, subd. (a)(1); the jury found both of these offenses were committe d for the benefit of a crimin al street gang (Pen. Code, § 186.22, subd. (b)(1)). On appeal, Christopher Harris contends the trial court erred in admitting into evidence Kwana Harris’ s hearsay statement identifying him as Alexander’s killer and in failing to instruct the ju ry that Kwana Harris’s statem ent required corroboration. Kwana Harris contends the tria l court erred in admitting ga ng evidence as to her and her defense counsel rendered ineffective assist ance. We reject appellants’ claims of error and affirm the judgments. FACTS AND PR OCEDURAL BA CKGROUND 1. The murder of Eric Alexander

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a. The Shooting on September 17, 2004. On September 17, 2004, Kh aled Fleming heard approximately 10 gunshots. Fleming stepped outside his home and walked toward Sixth Avenue where he saw the doors of a black SUV close and saw the vehicle leave the scene. At 2:34 a.m. on September 17, 2004, Los Angeles Police Officer Winston Lee received a radio call regarding a shooting in the 4300 block of Si xth Avenue. Upon arrival, Lee saw a man, later identified as Eric Alexander, lying unconscious. Lee found eight .22-caliber bullet casings near Al exander. While at the scene, Lee learned Alexander had died.3 Los Angeles Police Detective Stanley Evans found approximately $200 in Alexander’s jacket and pants and $150 on the ground nearby. Evans found no cell phone at the scene. Evans inquired of Alexander’s relatives regarding a cell phone without success. A deputy medical examiner testified Alex ander sustained nine gunshot wounds, including two fatal wounds. b. The family gathering in San Diego

. One week after the shooting of Alexander, on or about September 24, 2004, members of the Harris family gathered in San Diego at the home of James Hardgraves, the brother-in-law of Christopher and Kwana Harris. The visitors included Christopher and Kwana Harris, their sister Shanea, Mericca Garner, who is the mother of a child by Christopher Harris, and Ja mie Hardgraves, James Hardgraves’s twin sister. James Hardgraves recalled the visitors arrived in a black Ford Expedition driven by Kwana Harris. The day the vi sitors arrived, Kwana Harris told James Hardgraves there were rumors “going aroun d” that she and Christopher Harris had killed Alexander, aka Stoney. Kwana Harri s said she was present when Alexander was killed, she kicked him after he was shot and she took his cell phone. Kwana Harris said she had chirped Alexander to ge t him to the location and knew before he arrived he was going to be harmed. Kwana Harris said Christopher Harris killed Alexander. During the visit, James Hardgraves al so heard Kwana Harris talking on her cell phone in chirped phone calls. In one such call, James Hardgraves heard the caller say, “We know that you killed Stoney, and we know your brother k illed Stoney, and we know you are in San Diego, and we’re co ming out there.” Kwana Harris was nervous and called an individual known as L-Bone.4 James Hardgraves admitted he was afraid to testify in this case and was concerned for the safety of his childre n and himself. Kwana Harris once told James Hardgraves not to come to court and he had been threaten ed by Jerry Anthony, aka L-Bone, who was carrying a gun at the time. James Hardgraves was relocated twice by the Los Angeles Police Department. James Hardgraves admitted that, at the time of trial, he was on probation for a misdemeanor involving moral turpitude. On cross-examination by Kwana Harris’ s counsel, James Hardgraves admitted he and Kwana Harris were not close. James Hardgraves had been married to Christopher and Kwana Harris’s sister, A licia, for six years and they had three children. Alicia was in a car crash on Au gust 25, 2004, while driving to Los Angeles to assist Christopher Harris. Alicia died on September 4, 2004, as a result of injuries sustained in the crash. Alicia had been unfaithful to James Har dgraves with a woman introduced to her by Kwana Harris. Also, before Alic ia died, one of the Harris’s had been involved in a shooting outside the home of James Ha rdgraves’s mother. James Hardgraves conceded “the Harrises were bri nging a lot of turmoil and trauma” into his life and he was not happy with them. During the San Diego visit, Kwana Harri s and her sister, Shanea, got into a fight in which Shanea “was throwing knives.” Shanea repeatedly told Kwana Harris, “You know what you did. You were wrong.” Kwana Harris denied Shanea’s accusations. Jamie Hardgraves, James’s twin sister, was present in her brother’s apartment when Kwana Harris received chirped phone calls. One call from a woman involved how much money Kwana Harris had obtained from “Stoney.” Kwana Harris stated it was not as much money as the caller claimed. The caller also said there was a witness but Kwana Harris said no one wa s around when Alexander was killed. The caller also asked about Alexander’s cell phone a nd Kwana Harris said she had it.5 In a second chirped phone call, Jamie Hardgraves heard a male say he knew Kwana Harris was in San Diego and he was going to kill her and her mother. On cross-examination by Kwana Harris’s counsel, Jamie Hardgraves testified Kwana Harris regularly drove a silver car and, to her knowledge, the black truck belonged to Shanea.

c. Telephone Evidence. Sprint Nextel cell phone and direct connection or “chi rp” records for subscribers Eric Alexander and Kwana Ha rris showed that, on September 17, 2004, there were several brief telephone calls between them commencing at 1:37 a.m. The last of these calls was made at 2:27 a.m. The records also showed numerous direct connect calls were made by Kwana Ha rris between September 24 and 26, 2004. Los Angeles Police Detective Sean Hansen analyzed the telephone records for the cell phone numbers assigned to Alexan der and Kwana Harris for September 17, 2004. With the assistance of a computer program, Hansen plotted the distance between the cell sites through which the calls had been routed and the scene of the Alexander shooting. 2. The shooting of Kevin Decoud

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a. The shooting; Eddie Gilber t’s identification of Christopher Harris. Eddie Gilbert testified that, on January 15, 2004, he and Kevin Decoud were walking toward 41st Street and Van Ness Av enue when a black Nissan Maxima driven by Christopher Harris stoppe d a few feet from them. 1 When Christopher Harris asked where they were from, Gilb ert and Decoud yelled, “40 Neighborhood Crip[s].” As Decoud approached the Nissan to fight, Ch ristopher Harris said he was not there to fight and fired two shots at Decoud. Christ opher Harris also fired twice at Gilbert but missed.

1 Eddie Gilbert was declared unavailabl e due to mental incompetence and his preliminary hearing testimony was read to the jury.6 Decoud died as the result of a gunshot wo und to the chest. During an autopsy, a deputy medical examiner recovere d a bullet from Decoud’s body. Gilbert recognized Christopher Harris because, in December of 2004, Christopher Harris robbed Gilbert in the back yard of a residence on Second Avenue. On that occasion, Christopher Harris approach ed Gilbert from behind , said, “C.J. This is 58 Neighborhood,” “fuck 40’s . . . phoni es” (disrespecting Rolling 40’s), and “break yourself,” and placed a gun to Gilbert’s throat. Gilbert surrendered a Yankees cap and a blue jacket with a dragon on the sleeve and the back. b. Arrest of Christopher Harris; recovery of Decoud murder weapon

. On January 1, 2005, a sheriff’s deputy impounded a vehicle being driven by Christopher Harris. During an inventory of the contents of the vehicle, the deputy recovered a nine-millimeter se mi-automatic pistol. A criminalist testified the bullet recove red during the autopsy of Decoud had been fired from the firearm foun d in Christopher Harris’s car. 3. Investigation.

a. Search warrant served at the home of Merrica Garner

. On February 23, 2005, Detective Jason Delacova applied for a search warrant for the home of Mericca Garner. The items sought in the warrant included a baseball cap, a jacket with a dragon on it, a handgun and ammunition. The warrant was served on February 25, 2005. b. Garner’s statement to detectives

. Following service of the warrant, Garner was interviewed at the police station, first by Detectives Lee and Delacova and then by Detective Evans. Tape recordings of the interviews were played fo r the jury. Detective Evans te stified that, after he read Garner her rights, she made a statement a nd Evans asked her to put it in writing. While Garner wrote the statement, Evans di scovered the tape had run out and put in a new one. The missing portion of the interview included the reading of Garner’s rights and the statement in which Ga rner provided information. After Evans restarted the tape recorder, he went over Garner’s written statement with her. Garner was not aware7 the interview was being record ed. Garner was at the polic e station for approximately five hours, commencing at 10:00 a.m. Sh e was interviewed for approximately three and a half hours. In the initial interview co nducted by Detectives Lee a nd Delacova, Garner said Christopher Harris was a member of 48 Neighborhood, which was a small gang associated with the “40’s,” but indicated th e police had him on file as a member of the 60’s. Garner denied Christopher Harris ever told her that he had killed someone. Delacova advised Garner he had a pretty good case against Christopher Harris for a crime he committed with a female. Garner denied she was the female and stated the black Expedition was Shanea’s car. Garner claimed Christopher Harris told her only that people thought he was re sponsible for the murder. After Detective Evans took over the interview, Evan s suggested Garner might have unwittingly driven Christopher Harris to the scene of a crime and asked if she knew Eric Alexander, aka “Stone y.” Garner identified a photograph of Alexander as someone she had seen with Christopher Harri s. Garner also identified a picture of Jerry Anthony, aka “L-Bone.” Garner ad mitted she had been very friendly with Kwana Harris, who was also known as “L ady L-Bone,” which suggested “L-Bone” had brought Kwana Harris into his gang. Garner agreed that on September 17, 2004, Kwana Harris and Shanea had a black SUV and that Kwana Harri s was the primary driver of the vehicle. Evans told Garner he wanted to know if Garner were an accomplice, an a ccessory or merely a witness. Evans indicated he was going to pres ent the case to the di strict attorney for filing and, if Garner lied to Evans, it w ould suggest she had been involved in the crime. Garner denied Christopher Harri s spoke to her about what happened to Alexander. However, he did tell her the “40’ s” were after him because they thought he had killed Alexander. Evans indicated th at, at some point, Garner’s lies would force Evans to read Garner her rights.8 The second audiotape commences with Evans suggesting they read over Garner’s written statement. Evans then re ads a statement which indicates that, on the night of September 18, 2004, Christopher Harris told Garner that he killed Alexander because of some things Alex ander had said about him. The statement also indicated Christopher Harris “felt bad about the situ ation . . . .” Christopher Harris did not provide details but said, “I did it.”

c. Recorded telephone conversation. On the evening of Februa ry 25, 2005, Christopher Harris placed a telephone call from jail to Loretta Brown, his girlfriend at the time. A tape recording of the call was played for the jury. Du ring the call, Christopher Harris asked Loretta Brown to telephone Mericca Garner. After Garner en tered the conversation, Christopher Harris told her to “be careful what you say” and asked what had happened. Garner said numerous police officers, including Detectiv e Evans, came to her house with guns. Garner and her baby were taken to the po lice station from 10:00 a.m. until 3:00 p.m. because she “wasn’t cooperating.” Garner sa id the officers advised her of her rights and threatened to arrest her and put her child in “the system.” Ga rner told the officers Christopher Harris did not murder Alexander but the officers accused her of lying. When Garner told Christopher Harris the se arch warrant involved a gun, a hat and a leather coat, he responde d, “Oh for real?” After the conversation with Garner e nded, Christopher Harris told Brown he needed her “to really think . . . .” Brow n said she had heard what Garner had said and indicated, “I know. I know already.” After further discussion, Christopher Harris told Brown to “go to Aneisha’s house. I need you to go to Sean ’s room and get the dragon thing out of there. It’s a drag on. Remember, remember? . . .” When Christopher Harris asked if Brown “got it,” sh e replied, “I already thought of that a long time ago . . . .”9 4. Garner’s trial testimony. At trial, Garner denied that on Septem ber 18, 2004, she had a conversation with Christopher Harris in which he said he ha d killed Alexander and felt bad about it. Garner also denied that Kwana Harris ever told her she took a cell phone or money from Alexander. However, written statements signed by Garner, exhibits 15 and 16, indicate she made these statements to Ev ans. Exhibit 15 states: “Night of September 18, 2004, CJ [Christopher Harris] spoke with me and told me that he had killed Stone because of something he [said] ab out him. . . . He cried and told me he felt bad about it.” Exhibit 16 states: “Kwana also told me that she didn’t find any money and that she drove the truck over there to Stone. . . . Her main concern to me was that she wanted no part of the murd er. The cell phone wo uld have made it look like a setup because her name was the last name on the phone.” Garner admitted she did not want to tes tify in this case because the defendants were her son’s father and aunt. On cross-examination by Christopher Harris’s counsel, Garner testified the detectives indicated they thought Garner wa s involved in the k illing of Alexander. Garner thought she was going to be arrested for murder and Detective Evans “guided” her through the written statement and told her she had to sign it. On cross-examination by Kwana Harris’ s counsel, Garner testified the written

statements were not true and Garner wrote them because she believed she had no choice. Garner thought her child would be taken from her if she did not cooperate. Further, Garner told the detectives the fight between Shanea and Kwana Harris in San Diego was over a SIM card. Kwana Harris’s counsel called Garner as a defense witness and elicited that James Hardgraves has a reputation in the comm unity for lying. Garner also testified Shanea used Kwana Harris’s cell phone. Further, everyone in San Diego used her cell phone because it was a chirp phone and ever yone had their own c ode they could use on her cell phone. In September of 2004 , Kwana Harris lived with her mother.10 5. Testimony of the gang expert

. Los Angeles Police Officer Aron Algren testified as a gang expert. In the 1980s, the Crips gang split in to numerous subsets including the Rolling 40’s and the Rolling 60’s. Algren estimated that in 2004 and 2005, the Rollin g 60’s had between 2,000 and 3,000 members, and the Rolling 40’s had approximately 1,000 members. Both gangs have rather large territories. In 2005, the 48 Neighborho od Crips had 15 to 20 members. The 48 Neighborhood Crips was aligned with the Rolling 40’s and the Rolling 60’s and its territory was between the territory claimed by the Rolling 40’s and the Rolling 60’s. The primary activities of these gangs includ ed the sale of narcotics, robbery, attempted murder and murder. At times there were violent rivalries between the Rolling 40’s and the Rolling 60’s. Gangs wield power based on the threat of violence which prevents citizens from repor ting crimes committed by gang members. In Algren’s opinion, in 2004 and 2005, Christopher Harris was a member of the 48 Neighborhood Crips and an associate of the Rolling 60’s. Christopher Harris had extensive gang tattoos. Also, during a tr affic stop in 2003, Christopher Harris admitted to a Los Angeles police officer that he was a member of the 48 Neighborhood Crips and an associate of the Rolling 60’s. Algren also testified Kwana Harris was an associate of the Rolling 60’s. Based on hypothetical questions, Algren opined the shooting of Eric Alexander, the robbery of Eddie Gilbert, and the shoo ting of Kevin Decoud, each of whom was a member of the Rolling 40’s, had been committed for the benefit of the 48 Neighborhood Crips and the Rolling 60’s. 6. Defense evidence presented by Christopher Harris

. With regards to Eddie G ilbert’s competence, a forens ic psychiatrist testified Gilbert was admitted to Patton State Hospital in February of 2009. At that time, Gilbert was severely disabled and was diag nosed as having disorg anized schizophrenia and polysubstance abuse.11 A second forensic psychiatrist testified that, in a videotaped interview, Gilbert displayed signs of schizophrenia and a rhythmic motor tremor which is a side effect of medications commonly prescribed for schi zophrenia. The use of PCP can cause aggressive outbursts, hallucinations and extreme emotional volatility. The parties stipulated PCP wa s found in Decoud’s blood. CONTENTIONS Christopher Harris contends the trial c ourt erroneously admitted into evidence Kwana Harris’s hearsay statement iden tifying him as Alexander’s killer and committed instructional error in failing to instruct the jury the statement required corroboration. He further contends the cu mulative prejudice attributable to these errors requires reversal of his convictions ev en if either error, considered alone, would be insufficient to warrant that result. Kwana Harris contends the trial court erre d in admitting gang ev idence as to her and defense counsel rendere d ineffective assistance. 2
DISCUSSION 1. The trial court properly admitted Kw ana Harris’s hearsay statement incriminating Christopher Harris as a statement against her penal interest. Prior to trial, the prosecutor filed a motion seeking to admit into evidence statements made by Kwana Harris to Jame s Hardgraves and Mericca Garner, and statements overheard by James Hardgraves, Jamie Hardgraves and Mericca Garner during Kwana Harris’s chirped telephone calls. The trial court conducted a hearing on the motion and concluded these statements we re admissible as declarations against Kwana Harris’s penal interest.

2 Each appellant also joins in all ar guments raised by the other which may inure to his or her benefit. However, the claims raised are either personal to the appellant asserting them or so plainly mer itless when considered in the context of the co-appellant’s situation that we have no occasion to consider whether a contention raised by one appellant might accrue to the benefit of the other.12 On appeal, Christopher Harris contends the statement in which Kwana Harris identified Christopher Harris as the i ndividual who shot Alexander was not “specifically disserving” of Kwana Harris’ s interests and thus was not admissible under the declaration against interest exception to the hearsay rule. ( People v. Lawley (2002) 27 Cal.4th 102, 153-154; People v. Duarte (2000) 24 Cal.4th 603, 612; People v. Garcia (2008) 168 Cal.App.4th 261, 289.) Christopher Harris notes People v. Lawley, supra, at pp. 153-154 and People v. Garcia, supra, at pp. 289-290, held the portion of an aider and abettor’s statement identifying a confederate was not admissible as a statement agains t interest. He reasons that , similarly, the portion of Kwana Harris’s statements identifying Ch ristopher Harris as the shooter did not incriminate Kwana Harris and shou ld have been excluded. Christopher Harris claims the only ot her evidence implic ating him in the murder of Alexander was Garner’s written statement to Detec tive Evans which was unreliable in that Garner initially told the detectives Christopher Harris did not admit the killing and she testified at trial that sh e attributed incriminating statements to Christopher Harris only because the detectives threatened her with arrest, prosecution and the loss of her child. Christopher Harri s notes Detective Evans accused Garner of driving the shooter to the cr ime scene and said he would assume she was “a player” unless she told him the truth. Garner’s st atement also was susp ect because the portion of the interview in which Ga rner was advised of her right s and initially incriminated Christopher Harris was not recorded. Christopher Harris concludes that, ab sent Kwana Harris’s improperly admitted hearsay statement, it is reas onably probable he would have been acquitted of count one. Thus, the conviction and the multiple mu rder special circumstance finding must be reversed. Further, because the error lik ely had an adverse effect on the jury’s evaluation of his self defense claim as to count four, the murd er of Decoud, that conviction should also be reversed.13 We conclude the trial court correctly found the statement admissible as a declaration against Kwana Harris’s penal inte rest. Under that exception to the hearsay rule, “Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible . . . if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant’s pecuniary or proprietary interest, or so far subjected hi m to the risk of civil or cr iminal liability, . . . that a reasonable man in his position would not have made the st atement unless he believed it to be true.” (Evid. Code, § 1230.) In order for a statement to be admissibl e as a declaration against penal interest, “ ‘[t]he proponent of su ch evidence must show “that th e declarant is unavailable, that the declaration was against the declarant’s pe nal interest, and that the declaration was sufficiently reliable to warrant admission desp ite its hearsay character.” ’ [Citation.] ‘The focus of the declaration against interest exception to the hearsay rule is the basic trustworthiness of the declaration. [Citations .] In determining wh ether a statement is truly against interest within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy to be admissible, th e court may take into account not just the words but the circumstances un der which they were uttered, the possible motivation of the declarant, and the declarant’s relati onship to the defendant.’ [Citation.]” ( People v. Geier (2007) 41 Cal.4th 555, 584.) Because of concerns that declarations against penal interest may contain selfserving and unreliable information, the exception generally does not “apply to collateral assertions within declara tions against penal interest.” ( People v. Campa (1984) 36 Cal.3d 870, 882.) Further, “[e]ven a hearsay st atement that is facially inculpatory of the declarant may, when considered in context, also be exculpatory or have a net exculpatory effect. [Citation.] Ultimately, . . . ‘whether a statement is self-inculpatory or not can only be determin ed by viewing it in context.’ [Citation.]” ( People v. Duarte, supra, 24 Cal.4th at p. 612.) Only th ose portions of the declaration that are “specifically disservi ng” to the declarant’s penal interests are admissible under Evidence Code section 1230. ( People v. Leach (1975) 15 Cal.3d 419, 441)14 “Courts applying [Evidence Code] s ection 1230 to determine the basic trustworthiness of a proffered declaration are . . . to ‘consider all the surrounding circumstances to determine if a reasonable person in [the declarant’s] position would have made the statements if they weren’t true.’ ” ( People v. Duarte , supra , 24 Cal.4th at p. 618.) We review a trial court’s determinati on under Evidence Code section 1230 for an abuse of discretion. ( People v. Brown (2003) 31 Cal.4th 518, 536; People v. Lawley , supra , 27 Cal.4th at pp. 153-154.) Here, there is no dispute that codefe ndant Kwana Harris was unavailable as a witness at trial. This leaves us to cons ider whether the statement was against Kwana Harris’s penal interests when ma de and whether it was reliable. 3 With respect to the first issue, Christopher Harri s agrees the trial court prop erly admitted evidence of many of Kwana Harris’s statements to Jame s Hardgraves as contrary to her penal interest, such as her statement she lured Alexander to the scene of the shooting and took his cell phone. Christopher Harris focuses on Kwana Harris’s statement that Christopher Harris shot Alexander and appe ars to argue a statement implicating a codefendant, by definition, cannot be specif ically disserving of the declarant’s penal interest. However, the law does not require bla nket exclusion of such statements. Rather, whether such a statemen t is admissible as against th e declarant’s penal interest depends on the circumstances under which the statement was made, the declarant’s possible motivation and the declarant’s relationship to the defendant. ( People v. Geier , supra , 41 Cal.4th at p. 584.) The distinc tion to be drawn is between statements which are truly self-inculpatory, and th erefore admissible, and those which are partially self-serving and exculpat ory, and therefore inadmissible.

3 Christopher Harris concedes Kwana Ha rris’s statement was not testimonial and thus does not implicate th e Confrontation Clause. ( Davis v. Washington (2006) 547 U.S. 813, 821-82 3 [165 L.Ed.2d 224].)15 Review of the case law reveals the statem ents at issue in the cases cited by Christopher Harris were exclude d not because they incriminat ed individuals other than the declarant, but because th ey were exculpatory, self-s erving, or collateral to the declaration against interest. This point is illustrated by a review of relevant cases. For example, in People v. Leach , supra , 15 Cal.3d 419, several defendants were charged with conspiracy to commit murder. Prior to tria l, some of the defendants made statements that descri bed the conspiracy and inculpated themselves and other defendants. ( Id. at pp. 438-442.) Leach held the statements should not have been admitted at trial, noting th e exception for admissions against penal interest was “inapplicable to evidence of any statem ent or portion of a statement not itself specifically disserving to the in terests of the declarant.” ( Id. at pp. 441-442, fn. omitted.) People v. Duarte explained the holding in Leach rested on considerations of reliability, noting a facially inculpatory statement, when viewed in context, may actually be exculpatory or self-ser ving, and thus untrustworthy. In Duarte, the defendant and another man we re charged with shooting at a dwelling. ( People v. Duarte, supra, 24 Cal.4th at pp. 607-609.) Prior to trial, the defendant’s accomplice gave th e police a statement acknowledging participation in the crime, but minimizing his role. A redacted version of the statement was admitted at the defendant’s trial as an admi ssion against penal interest. ( Id. at p. 609.) Duarte reviewed case authority and st ated: “Under the rule of Leach, a hearsay statement ‘which is in part inculpatory and in part exculpatory (e.g., one which admits some complicity but places the majo r responsibility on others) doe s not meet the test of trustworthiness and is thus inadmissible.’ ” ( People v. Duarte, supra, at p. 612, quoting In re Larry C. (1982) 134 Cal.App.3d 62, 69.) Applying this rule, Duarte concluded the redacted statemen t, viewed in context, was self-serving and thus should have been excluded from evidence. ( People v. Duarte, supra, at pp. 612-613.) However, People v. Samuels (2005) 36 Cal.4th 96, clarified that Leach and Duarte do not exclude a statement that inculpates the declarant and other individuals, provided the declarant’s facia lly inculpatory statements ar e not, in fact, exculpatory,16 self-serving, or collateral. In Samuels , the defendant asked one Bernstein to murder her husband and, once Bernstein had done so, she successfully solicited two other men to murder Bernstein. At trial, a witn ess testified Bernstein said, “ ‘He had done it and . . . [the defendant] had paid him.’ ” ( Id. at p. 120.) On appeal, the defendant contended Bernstein’s statemen t the defendant had paid hi m to commit the murder was inadmissible as it constituted an a ttempt to shift blame to her. ( Ibid. ) Samuels held the entire statement was properly admitted as against the declarant’s penal interest, notwithstanding the reference to the defendant. Samuels stated, “This admission, volunteered to an acquaintance, was specifica lly disserving to Bernstein’s interests in that it intimated he had participated in a co ntract killing – a particularly heinous type of murder – and in a conspiracy to co mmit murder. Under the totality of the circumstances presented here, we do not re gard the reference to [the] defendant incorporated within this admission as itself constitu ting a collateral assertion that should have been pu rged from [the witness’s] reco llection of Bernstein’s precise comments to him. Instead, the reference was in extricably tied to and part of a specific statement against pe nal interest.” ( Id. at p. 121.) Here, as in Samuels , Kwana Harris’s statement th at Christopher Harris shot Alexander was not an attemp t to mitigate her in volvement in the offense, deflect responsibility for the crime or shift blame to others. Rather, the statement explained her involvement in th e murder, namely, luring Alexan der to the location where her brother, Christopher Harris, shot him and thereafter taking Alexander’s cell phone in an attempt to eliminate evid ence connecting her to the o ffense. Because the entire statement was against Kwana Harris’s penal in terest, it fell within the exception and properly was admitted at trial as substant ive evidence of Christopher Harris’s guilt. We reached a similar conclusion in People v. Cervantes (2004) 118 Cal.App.4th 162. In that case, a nontes tifying codefendant, Morales, inculpated himself and two codefendants in a murder and an attempted murd er while speaking to a friend of all three defendants. ( Id. at pp. 166-167.) On appeal, the two codefendants contended Morales’s statement to the friend should have been excluded.17 ( Id. at p. 169.) Cervantes found the trial court prop erly admitted evidence of the statement at the defendants’ joint trial as a declaration against penal interest. ( Id. at p. 177.) Cervantes noted Morales did not attribute blame to the codefendants but accepted an active role in the crimes and described how he had directed the activities of one of the codefendants. ( Id. at p. 175.) Further, because the declarant was acting in concert with th e codefendants, a statement incriminating a codefendant also incriminated the declarant. ( Id. at p. 176.) Cervantes relied heavily on an earlier case, People v. Greenberger (1997) 58 Cal.App.4th 298, which involved a kidn apping and murder committed by several defendants. Greenberger held the trial court proper ly admitted evidence of a codefendant’s statement in which the c odefendant admitted pl anning the kidnapping and acting as an aider and abettor while a codefendant held a gun on the kidnapped victim. ( Id. at pp. 339-340 & p. 340, fn. 16.) Greenberger held the reference to the codefendant was “an integral part of th e statement in which [the declarant] implicated himself in planning and particip ating in the kidnapping and murder . . . .” ( Id. at p. 340.) Lawley and Garcia , the cases cited by Christopher Harris, excluded portions of statements not because the stat ements inculpated individuals other than the declarant, but because the circumstances under which the statements were made suggested the

statements were not reliable. In People v. Lawley , a statement by the actual killer that he was hired to kill the victim was properly adm itted as a declaration agai nst penal interest. ( People v. Lawley, supra , 27 Cal.4th at p. 154.) Howeve r, the trial court did not abuse its discretion in excluding the killer’s stat ement he had been hired by the Aryan Brotherhood, rather than the defendant, b ecause that portion of the statement was not “specifically disserving” of the declarant’s interest. ( Ibid. ) Lawley found the portion of the declarant’s statement indicating the iden tity of the entity that paid for the murder did not make the declar ant more culpable. ( Id. at pp. 153-154.) Rather, the declarant’s reference to the Aryan Brotherhood coul d only be understood as an attempt to18 exculpate the defendant. Thus, it was co llateral to the declarant’s inculpatory statements. (See People v. Samuels, supra, 36 Cal.4th at pp. 120-121.) People v. Garcia, addressed the admissibility of a note sent by the cellmate of a defendant. Garcia rejected the argument the note was admissible as a declaration against penal interest because, while one stat ement in the note asserted the author had written the note, another said he had done so as a favor to the defendant. ( People v. Garcia, supra , 168 Cal.App.4th at pp. 286-290.) Thus, the statements were not wholly inculpatory. Here, Kwana Harris’s statemen t that her brother shot Alexander was not collateral, exculpatory or self-serving. Ra ther, it implicated he r in the murder of Alexander and thus qualified as a declaration against Kw ana Harris’s penal interest. Kwana Harris’s statement also was relia ble. “[A]ssessing trustworthiness ‘ “requires the court to apply to the peculia r facts of the individual case a broad and deep acquaintance with the wa ys human beings actually conduct themselves in the circumstances material under the exception.” ’ [Citation.]” ( People v. Duarte, supra, 24 Cal.4th at p. 614.) Genera lly, the least reliable circumst ance is when the declarant has been arrested and makes his statement to police in an atte mpt to improve his situation. The most reliable situation is one in which the conversation occurs between friends in a non-coercive setting. ( People v. Greenberger, supra, 58 Cal.App.4th at p. 335; People v. Cervantes, supra, 118 Cal.App.4th at p. 175.) Kwana Harris made the statement at issue to James Hardgraves, Kwana Harris’s brother in law, one week after th e shooting during a family gathering long before police had focused their investig ation on the Harris family. Further, the statement incriminating Christopher Harris as the shooter in the murder of Alexander was not made for self-serving motives or u nder circumstances that rendered it suspect or unreliable. Kwana Harris was not trying to deflect responsibility for the crime. Rather, the statement was part of her admissi on she had taken an active role in causing Alexander’s death. In sum, the circumst ances under which the statement was made indicate it was reliable.19 We therefore conclude the Kwana Ha rris statement was against her penal interest and bore a particular guarantee of tr ustworthiness such that the trial court did not err in admitting evidence of the st atement against Christopher Harris. Moreover, even assuming th e statement should have been excluded, any error in its admission was harmless in light of Garner’s written statement in which she told Detective Evans that, on September 18, 20 04, the day after Alexander was killed, Christopher Harris told her that he kille d Alexander because Alexander was saying things about him. ( People v. Watson (1956) 46 Cal.2d 818, 836; see People v. Samuels, supra, 36 Cal.4th at p. 120 [applying Watson standard of review to error in admitting hearsay under Evid. Code, § 1230]; People v. Duarte, supra, 24 Cal.4th at pp. 618-619 [same].) 4 Although Christopher Harris denigrates Garn er’s statement as the likely product of coercion, it appears the detectives did no more than urge Garner to tell the truth. It is settled that, “ ‘ “[w]hen the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct,” the subsequent statement will not be considered involuntarily made. [Citation.]” ’ ” ( People v. Holloway (2004) 33 Cal.4th 96, 115.) Given that Garner’s written statement incriminating Christopher Harris pr operly was admitted at trial, any error in the admission of Kwana Harris’s statem ent must be seen as harmless. 2. Accomplice instructions unnecessary

. Christopher Harris contends the trial cour t erred in failing to instruct the jury, sua sponte, to determine whet her Kwana Harris was an accomp lice, and, if so, that her statement incriminating him required corro boration. CALCRIM No. 334 would have advised the jury it could use Kwana Harris’s statements to convict Christopher Harris only if: “The accomplice’s statement is suppor ted by other evidence that you believe,”

4 Our harmless error analysis ignores the chirped telephone calls overheard by James Hardgraves in which some uniden tified male said he knew Kwana and Christopher Harris had killed Alexander. As Christopher Harris correctly notes, this evidence was not offered for its truth and was not offered ag ainst Christopher Harris.20 the “supporting evidence is independent of the accomplice’s statement,” and the “supporting evidence tends to co nnect the defendant to the commission of the crime.” (CALCRIM No. 334.) Althou gh Kwana Harris’s self-incriminating statements were corroborated by the phone records and the fact Alexander’s phone was never found, this evidence did not connect Christopher Harris to the crime. Rather, the only supporting evidence that tende d to connect him to the cr ime was Garner’s written statement, which Garner retr acted at trial and was the product of at least some coercion. Christopher Harris concludes th at, had the accomplice instruction been given, it is reasonably probable the jury would have determined Kwana Harris’s statement incriminating Christopher Harri s was not sufficiently corroborated and acquitted him on count one. ( People v. Lewis (2001) 26 Cal.4th 334, 371.) Based on our conclusion in the fore going discussion section that Kwana Harris’s statement incriminating herself a nd Christopher Harris properly was admitted as a declaration against Kwana Harris’s penal interest, ac complice instructions were not required. Penal Code section 1111 provides: “A conviction cannot be had upon the testimony of an accomplice unless it be corrobor ated by such othe r evidence as shall tend to connect the defendant with th e commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.” The purpose of Penal Code section 1111 is “[t]o ensure that a defendant will not be convicte d solely upon the testimony of an accomplice because an accomplice is likely to have self-serving motives.” ( People v. Davis (2005) 36 Cal.4th 510, 547.) “Testimony,” as used in Pena l Code section 1111, includes “all out-ofcourt statements of accomplices . . . used as substantive evidence of guilt which are made under suspect circumstances.” ( People v. Williams (1997) 16 Cal. 4th 153, 245; People v. Brown, supra, 31 Cal.4th at p. 555; People v. Belton (1979) 23 Cal.3d 516, 524-525.)21 However, as explained in People v. Brown , the corroboration requirement does not apply where the accomplice’s statement b ears sufficient indicia of reliability to permit admission under the declaration agains t the penal interest exception to the hearsay rule. “ ‘The usual problem with accomplice testimony – that it is consciously self-interested and calculated – is not present in an out- of-court statement that is itself sufficiently reliable to be allowed in evid ence.’ [Citation.]” ( People v. Brown , supra , 31 Cal.4th at pp. 555-556; see also People v. Williams (1997) 16 Cal.4th 635, 682 [instructional duty not triggere d where accomplice statements “made in the course of and in furtherance of the conspiracy were not made under suspect circumstances and therefore were sufficiently reliabl e to require no corroboration”].) Here, Kwana Harris’s statement to Jame s Hardgraves that Christopher Harris shot Alexander was made under conditio ns sufficiently trus tworthy to permit admission of the statement in to evidence as a declarati on against penal interest. Therefore, although Kwana Harris was an accomplice in the murder of Alexander, corroboration was not necessary and the tria l court was not required to instruct the jury her statement required corroboration. ( People v. Brown , supra , 31 Cal.4th at pp. 555-556.) Christopher Harris attempts to distinguish Brown on the ground the defendant in that case did not identify a codefenda nt by name. However, as previously discussed, the fact a statemen t inculpates individuals other than the declarant does not render the statement suspect where an exam ination of the surrounding circumstances indicates the statement was reliable when made. In any event any error was harmless. As Christopher Harris concedes, the trial court instructed the jury to view out of court statements with caution. (CALCRIM No. 358.) Further, the “failu re to instruct on accomplice liability under [Penal Code] section 1111 is harmless if there is suffici ent corroborating eviden ce in the record. [Citation.] ‘Corroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense. [Citations.]’ . . . The evidence ‘i s sufficient if it tends to co nnect the defendant with the22 crime in such a way as to sa tisfy the jury that the accomplice is telling the truth.’ [Citation.]” ( People v. Lewis, supra, 26 Cal.4th at p. 370.) Here, Kwana Harris’s statement was corroborated by Garner’s written statement in which she indicated that on Se ptember 18, 2004, Christopher Harris told her he had killed Alexander. Thus, an inst ruction requiring corroboration of Kwana Harris’s out-of-court statement, had it been given, would not have resulted in a more favorable outcome for Christopher Harris. ( People v. Watson, supra , 46 Cal.3d at p. 836.) 3. The trial court properly admitted gang evidence against Kwana Harris. Prior to trial, Kwana Harris moved to ex clude gang evidence as to her because she was not alleged to have committed the mu rder of Alexander for the benefit of a criminal street gang. The trial court ru led the prosecution could introduce gang evidence as to Kwana Harris, but th at its use would be limited. Thereafter, the trial court instructed th e jury on the uses of gang evidence in accordance with CALCRIM No. 1403, as follows: “You ma y consider evidence of gang activity only fo r the limited purpose of deciding whether: [¶] The defendant acted with the intent, purpos e, and knowledge that are required to prove the gangrelated enhancements charged; OR [¶] The defendant had a motive to commit the crime charged. [¶] You may also consid er this evidence wh en you evaluate the credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion. [¶] You may not consider this evidence for any ot her purpose. You may not conclude from this evidence that the defendant is a person of bad character or that he has a disposition to commit crime.” On appeal, Kwana Harris contends the tr ial court should ha ve excluded the gang expert’s testimony as to her, claiming it amounted to evidence of bad character, which is inadmissible under Evidence Co de section 1101, subdivision (a), and it encouraged the jury to make negative inferences about he r character which were not relevant to her guilt or innocence. ( People v. Archer (2000) 82 Cal. App.4th 1380,23 1392.) Further, the prejudicial effect of the evidence far outweighed any probative value the evidence possessed . (Evid. Code, § 352.) Kwana Harris concludes the admission of this evidence rendered the trial fundamentally unfair and requires reversal of her conviction. Despite its potential for prejudice, gang evidence “is not insulated from the general rule that all relevant evidence is ad missible if it is relevant to a material issue in the case other than charac ter, is not more prejudicial than probative, and is not cumulative. [Citations.]” ( People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167.) Here, in order to explain the circumstan ces leading to the mu rder of Alexander, the prosecution was entitled to demonstrate th e relationship of Christopher and Kwana Harris to the gangs in volved in this case because this evidence was relevant to the issues of intent, motive and wi tness credibility. The gang expert testified Christopher Harris was a member of the 48 Neighborhood Crips and an associate of the Rolling 60’s, and that Kwana Harris was an associate of the Rolling 60’s. This evidence was significant because Alexander, the victim in count one, was a me mber of the Rolling 40’s, a gang that sometimes feuded with the Rolling 60’s. Because Kwana Harris’s gang association tended to provide a motive for her invo lvement in the murder of Alexander, evidence abou t gang culture and her gang association was relevant to the charge against her. ( People v. Samaniego, supra, 172 Cal.App.4th at pp. 1167-1168; People v. Albarran (2007) 149 Cal.App.4t h 214, 223-224.) Additionally, evidence of in timidation by gangs was rele vant to assist the jury in determining the credibility of witnesse s who were reluctant to testify or who recanted earlier statements. Regarding the assertion the gang ev idence amounted to evidence of bad character, the gang expert di d not testify Kwana Harris co mmitted any prior bad acts and indicated only that she was an “associate” of the Rolling 60’s.24 With respect to Kwana Harris’s claim the evidence should have been excluded under Evidence Code section 352 as inflamma tory and unduly prejudicial, no abuse of the trial court’s discretion appears. “ ‘[B]e cause a motive is ordinarily the incentive for criminal behavior, its probative value ge nerally exceeds its prejudicial effect, and wide latitude is permitted in admitting ev idence of its existence.’ [Citations.]” ( People v. Gonzalez (2005) 126 Cal.Ap p.4th 1539, 1550; People v. Garcia, supra, 168 Cal.App.4th at p. 275; People v. Martinez (2003) 113 Cal.A pp.4th 400, 413.) In any event, the testimony as to Kw ana Harris’s involvement in gangs, as differentiated from the testimony regardin g Christopher Harris, was minimal. Moreover, the trial court instru cted the jury to limit its cons ideration of gang evidence to proof of the gang enhancement, which wa s not applicable to Kwana Harris, and to issues of motive and credib ility, and not to consider the evidence for any other purpose. The trial court specif ically told the jury not to “conclude from this evidence that the defendant is a person of bad character or that [s ]he has a disposition to commit crime.” We presume the jury acted in acc ordance with the instructions given. ( People v. Sanchez (2001) 26 Cal.4th 834, 852; People v. Holt (1997) 15 Cal.4th 619, 662; People v. Delgado (1993) 5 Cal.4th 312, 331.) Finally, any abuse of discretion in adm itting gang evidence as to Kwana Harris was harmless in light of her incriminati ng statements that indicated she lured Alexander to the scene of his demise knowing he would be harmed and, after Alexander was killed by Christopher Harris, she took his cell phone to eliminate evidence of her involv ement in the crime. These statements were corroborated by telephone records that showed numerous calls between Kwana Harris and Alexander in the hour preceding his death and the fact Alexander’s cell phone was never recovered. In light of this evidence, under any st andard of review, the outcome would not have been more favorable had the trial c ourt excluded the gang expert’s testimony as to Kwana Harris. ( Chapman v.California (1967) 386 U.S. 18 [17 L.Ed.2d 705]; People v. Watson, supra , 46 Cal.2d at p. 836.)25 4. No ineffective assistance of counsel appears. Kwana Harris contends her counsel rendere d ineffective assistance by failing to present an opening statement, written motions or witnesses on her behalf. She further asserts “there appears to have been no inve stigation of James Hardgraves or any other witness involved in th is matter.” Kwana Harris claims her main defense, that she was at home at the time of the shooting of Alexander, was not presented even though several witnesses confirmed they were with her and overheard Alexander’s final phone call in which he claimed he was being followed and was frightened. Kwana Harris asserts there is no reasonable explanation for co unsel’s failure to call these witnesses. She claims defense counsel failed to inves tigate and failed to present witnesses who would have contradicted Jame s Hardgraves’s account of he r statements. Finally, she asserts defense counsel also failed to pres ent James Hardgraves’s preliminary hearing testimony, which contradicted his trial test imony he bore Kwana Harris no animosity. The law to be applied is well settled. “In assessing claims of ineffective assistance of trial counsel, we consider wh ether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a re asonable probability, that is, a probability sufficient to undermine confid ence in the outcome.” ( People v. Gray (2005) 37 Cal.4th 168, 206-207, citing Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674] and People v. Ledesma (1987) 43 Cal.3d 171, 217.) A reviewing court defers to “ ‘ “counsel’s reasonable ta ctical decisions in examining claims of ineffective assistance of counsel [citation] , and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ ” [Citation.]’ ” ( People v. Hinton (2006) 37 Cal.4th 839, 876 .) If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to pr ovide one, or there simply could be no satisfactory explanation. ( People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) Otherwise, the claim is more appropriately raised in a petition for writ of habeas26 corpus, which permits the oppo rtunity to present additiona l evidence regarding trial counsel’s reasons for acting or omitting to act. ( People v. Mendoza Tello , supra , 15 Cal.4th at pp. 266-267.) Taking Kwana Harris’s complaints in tu rn, our Supreme Court has recognized that the decision to waive an opening statement can be a reasonable trial strategy. ( People v. Carter (2005) 36 Cal.4th 1114, 1189; People v. Mitcham (1992) 1 Cal.4th 1027, 1059 [“The decisions whet her to waive opening statem ent and whether to put on witnesses are matters of trial tactics and strategy which a reviewing court generally may not second-guess”].) With respect to the assertion defense counsel failed to file written motions or call witnesses, Kwana Harris does not specify what motions should have been filed or identify witnesses counsel should have calle d. Regarding the claim defense counsel should have called witnesses to establish an alibi, the re cord contains no evidence of any witnesses who could have provided an alibi defense. Further, Kwana Harris makes no attempt to show what the omitted witness’s testimony would have been or that the testimony would have been sufficien t to create a reasonable doubt as to her guilt. Therefore, this argument is more a ppropriately presented in a habeas corpus proceeding. Moreover, defense counsel called pros ecution witness, Mericca Garner, as a witness for the defense and elicited that James Hardgraves had a reputation in the community as a liar. Defense counsel also elicited from Garner that other individuals regularly used Kwana Harris’s cell phone. The record also contradicts Kwana Harris’s assertion defense counsel apparently failed to investigate James Har dgraves. On cross-ex amination by Kwana Harris’s counsel, James Hardgraves admitted he and Kwana Harris we re not close, his wife had been unfaithful to him with a woman introduced to her by Kwana Harris, and his wife died a week after a car crash th at occurred while she was traveling to Los Angeles to assist Christopher Harris. Also , before his wife died, one of the Harris’s had been involved in a shooting outside th e home of James Hardgraves’s mother.27 James Hardgraves conceded “the Harrises we re bringing a lot of turmoil and trauma” into his life and he was not happy with them. Kwana Harris’s counsel also asked James Hardgraves about the fight between Kwana Harris and her sister, Shanea, during which Shanea produced a knife and Kwana Harris repeatedly denied Shanea’s accusation that Kwana Harris had been involved in wrongdoing. Defense counsel also cross-examined James Hardgraves at lengt h as to his memory of incriminating statements made by Kwana Harris. During cross-examination of Jamie Har dgraves, defense counsel established that she, unlike James Hardgr aves, did not recall any specif ics in the statements made by Kwana Harris during the week end in San Diego. Jamie Hardgraves admitted she never heard the name Alexander in the ch irped phone conversatio ns and never heard “anything concerning a killing or murder . . . .” Counse l also attempted to show, through the testimony of Jamie Hardgraves, that Kwana Harris regularly drove a silver car, Shanea was the driver of the black SU V and Shanea’s behavi or was unstable. Defense counsel also elicited Mericca Ga rner’s testimony that she felt her child would be placed in foster care if she did not give the police a statement. On cross-examination, Garner testified th e written statements implicating Christopher and Kwana Harris were false. Further, when Shanea ac cused Kwana Harris of killing someone, Kwana Harris denied the accusati on. Also, Garner did not hear Kwana Harris admit involvement in any killing while they were in San Diego. The record also indicates defense counsel vigorously cross-examined Detective Evans regarding Garner’s written statemen t and Detective Hansen regarding his analysis of the cell phone records. Defense counsel thereafter utilized the evid ence adduced at tria l to urge the jury to acquit Kwana Harris. Defe nse counsel argued the People ’s evidence consisted of “word on the street [and] rumors flyi ng around” which were uncorroborated and insufficient for a conviction. Counsel asserted there was no proof Kwana Harris took Alexander’s cell phone and there were calls ma de on the phone after he died which the prosecution had failed to explain. The black SUV was not driven exclusively by28 Kwana Harris and her cell phone was used by other people. Also, there was evidence indicating Kwana Harris and Shanea fought over a SIM card. Thus, someone might have taken Kwana Harris’s SIM card on the night Alexander was shot. Counsel argued Shanea, Garner, Christopher Harris or some other person could have been calling Alexander. Thus, there was an “abse nce of evidence.” Counsel noted James Hardgraves had been convicte d of a crime of moral turpit ude and his testimony could not be trusted. Further, James Hardgraves did not like Kwana Harris and, according to Garner, a prosecution witness, James Hardgrav es had a reputation in the community as a liar. Counsel explained the other people present in San Diego were not called as witnesses because they did not overhear th e allegedly incrimina ting statements and even Jamie Hardgraves, who did testify, did not hear Kwana Harris confess. Counsel noted only James Hardgraves h eard the callers claim Kwana Harris had killed Alexander and, where the testimony of James Hardgraves and Jamie Hardgraves differed, the jury should believe Jamie Hardgraves. Counsel argued Garner’s statement had to be discounted because of the threats made to take her child from her. In the recorded phone conversation, Garner indica ted she frequently stayed at the home of Christopher Harris’s mother and Kwana Harris also lived there. Thus, Garner had access to the black SUV and Kwana Ha rris’s cell phone. This explained why Garner would put blame on Kwana Harris. Counsel claimed the cell phone records proved nothing in th at the two cell phones were not always together the day after Alexander’s death and Kwana Harris’s cell phone made calls through one tower and Alexander’s phone made calls through tw o different towers. Counsel closed by arguing the standard of proof and conclude d the People had not shown Kwana Harris’s guilt beyond a reasonable doubt.29 In sum, review of the record leads us to conclude Kwana Harris has failed to demonstrate ineffective assi stance of counsel. ( Strickland v. Washington , supra , 466 U.S. at p. 688.) 5. There was no cumulative error

. Christopher Harris contends cumulative error requires reversal. However, there can be no cumulative error if the ch allenged rulings were not erroneous. ( People v. Bradford (1997) 15 Cal.4th 1229, 1382.) Because none of Christopher Harris’s contentions involve error, ther e is no issue of cumulative error. DISPOSITION The judgments are affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

ALDRICH, J.