People v. Garcia

Full title: THE PEOPLE, Plaintiff and Respondent, v. ELIAS GARCIA et al., Defendants…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

Date published: Mar 27, 2018

No. C077082 (Cal. Ct. App. Mar. 27, 2018)

Opinion

C077082

03-27-2018

THE PEOPLE, Plaintiff and Respondent, v. ELIAS GARCIA et al., Defendants and Appellants.

NICHOLSON, J.

NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 10F06795)

Elias Garcia, Roman Hooker, Christopher Merrill, and Calvin Holmes attempted to rob a marijuana dealer, Donald Kirby, in his apartment. During the attempt, Garcia shot and killed Kirby. A jury found Garcia and Hooker guilty of first degree felony murder and attempted robbery, and it found true a felony-murder special circumstance. Merrill and Holmes testified against Garcia and Hooker after they pleaded guilty to reduced charges.

Defendants appeal and assert the following errors: (1) Merrill's and Holmes's testimonies were not corroborated by sufficient evidence; (2) the prosecutor committed numerous instances of misconduct in her argument to the jury; (3) the trial court erred by not instructing on the lesser included offenses of second degree murder, voluntary manslaughter, and involuntary manslaughter; (4) CALCRIM No. 362, which authorizes a jury to consider a defendant's prior false statement as evidence of his awareness of guilt, unconstitutionally lessens the prosecution's burden of proof; (5) cumulative error; and (6) the court erroneously imposed parole revocation fines.

Except to strike the parole revocation fines, we disagree with defendants' contentions and affirm the judgment.

FACTS

A. Prosecution case-in-chief

1. Independent witnesses

a. Jan Hamilton

On the morning of November 12, 2009, Jan Hamilton and her mother were sitting on the front porch of her mother's home on 33rd Street in Oak Park having coffee. Around 8:00 a.m., Hamilton saw a gold Chevy sedan pull up and park near the front of the house.

A man got out of the car's backseat. He stood up and reached into the vehicle and grabbed a small bag. It looked to Hamilton like a gun bag. He lit up a joint and started smoking it. Three others got out of the car and at least two of them also started smoking. One of them wore a dark pullover sweatshirt. Hamilton counted four men moving around the car and talking.

One of the men standing by the car wore a "tannish" camouflage jacket. He was taller and had a child-size backpack over his jacket that appeared to be flat, as if it was empty. This man looked directly at Hamilton. She noticed he had a droopy left eye. It appeared "smashed down," or scarred.

One of the men walked down an alley that led off of 33rd Street. He was gone for about 30 or 40 seconds and came back. Then all four men walked down the alley.

A couple of minutes later, Hamilton heard a gunshot. She saw only the top of a man's head as he was getting into the Chevy. She next saw three others come running. The car started to move forward towards the alley while the three were trying to get in. They got in, but a smaller man trying to get into the back passenger seat was almost run over. He wore a dark ski beanie on his head.

b. Sean Lawrence

Sean Lawrence lived in a first-floor apartment at a two-story apartment complex on V Street in Oak Park. On the morning of November 12, 2009, Lawrence was sitting on the step in front of his apartment smoking a cigarette. He saw a Black male in dark clothing standing at the bottom of the building's staircase nearest to an alley. He nodded to the man, who was about five feet 10 inches or five feet 11 inches tall. The man stood there for about 30 seconds, and then he began walking up the stairs. Fifteen to 20 seconds later, Lawrence heard a loud bang. He saw three Black men run out of the stairwell and to the right towards the alley. The man he saw at the staircase was one of them. They all wore dark clothing.

Lawrence walked up the stairs. The door to the apartment of his acquaintance, Donald Kirby, was open and an alarm was going off. Lawrence looked in and found Kirby lying on the living room floor with a gunshot wound. Lawrence ran downstairs and called 911. He did not believe the first man he saw could have made it to Kirby's door before he heard the gunshot.

c. Christine Pair

Christine Pair lived in the apartment directly underneath Kirby's apartment. She heard three loud "bam" or "bang" types of noises that morning. She opened her front door, and standing in the doorway she asked out loud, "What is going on up there?" She heard a lot of noise coming down the stairs. She saw three young Black men rush in front of her by a few inches and turn right. The men had their dark hoodies up and their heads down. Pair stepped out of her door and saw them run to the alley and towards 33rd Street.

2. Police investigation

Police found Kirby's apartment door wide open and Kirby lying dead on the living room floor. They found a .40-caliber Smith & Wesson expended casing manufactured by Federal outside the door on the front doormat. They found a slug lodged in the wall directly across the room from the front door. There was an alarm and a peephole on the front door. Otherwise, nothing seemed out of order inside. Investigators found numerous computers and computer components, an airsoft gun still in its packaging, an open billfold with some money sticking out and visible credit cards, and multiple baggies of marijuana varying in amounts from 1.2 grams to 42.27 grams.

On 33rd Street, officers found a piece of chewed gum in a cellophane wrapper and a burnt piece of Zig-Zag rolling paper for marijuana. The parties stipulated the chewing gum wrapped in cellophane contained the DNA profile of Calvin Holmes. They also stipulated the partially burned cigarette was found on the grass near where the gold Chevy was parked, and the DNA from the cigarette belonged to an unknown male.

The perpetrator shot Kirby in the face near the nose. The slug severed his spinal cord and exited from the back of his head at the neck. The forensic pathologist testified there was a good chance the slug killed Kirby instantly. The perpetrator fired the gun from several inches to a few feet away from Kirby.

According to the firearms expert, the casing found outside Kirby's front door and the slug found in the wall were compatible with each other. The slug was a nominal National .40-caliber projectile, a typical type used in that particular cartridge. The bullet could have been fired from a .40-caliber Smith & Wesson semiautomatic pistol or a 10-millimeter Smith & Wesson revolver. No gun was recovered to test for a match, and criminalists could not determine from the casing what weapon was used. The parties stipulated that no identifiable fingerprints were found on the casing.

The crime investigation was not progressing until officers arrested Christopher Merrill on a parole violation. During a December 3, 2009 police interview, Merrill named defendant Garcia as the shooter.

Officers searched Garcia's apartment that day. Inside the back pocket of a pair of baseball pants, officers found six live .40-caliber bullets and five live .32-caliber bullets wrapped in a towel. The .40-caliber ammunition was Smith & Wesson manufactured by Federal. Officers also seized a black hoodie. The parties stipulated that no identifiable fingerprints were found on the ammunition recovered from Garcia's apartment.

3. In-custody phone calls

On December 9, 2009, police apprehended Garcia at a Greyhound bus depot in Los Angeles. Officers monitored calls he made while in custody in Sacramento. On December 10, 2009, Garcia made a call to his sister-in-law, Parrish Smith. During the call, the two discussed whether Merrill had snitched. Smith said, "Yeah, well Chris is tellin. He's singing in that mother fucker." Garcia responded, "Man, singing like a—man, for no reason." A few moments later, Smith said she did not know if Merrill snitched:

"[Smith]: I don't know—I don't know if he did or not.

"[Garcia]: Oh about, uh, Bris?¹

1 Merrill was known as "Briss" or "Bris."

"[Smith]: Yeah, they know—the cops said that to me.

"[Garcia]: That—that old boy's telling?

"[Smith]: No, they didn't say nobody. He didn't say—he only said your name. He didn't even bring up Chris name. He just brung up the three—y'all three.

"[Garcia]: Oh.

"[Smith]: Bitch—so Chris got to be singing."

Garcia also called his friend Tanisha Craven. Craven was a "female interest" of Garcia's. She asked him why he left her so abruptly. He said he was leaving the country.

Authorities arrested Garcia in this matter on November 11, 2010. That day, he called his wife Ebony from jail. During the call, Garcia told Ebony he had been identified as the shooter. He also said, "[T]hey got me for, um, that—that hot one." Later, Ebony said, "[Y]ou already know, it's already, you know, out of the way." Garcia said, "That's good. . . . I know what you're saying, baby. My PlayStation 2? . . . Um, where you take my PlayStation 2 at? You threw it away?" Ebony said a particular person had it, and he was supposed to give it back.

Garcia told Ebony not to cry and said, "It's—I mean, it is what it is. You know what time it is, you feel me? I mean, we just . . . goin' to stick to the code. . . . [¶] . . . So all you gotta do is just hold a nigga down, keep it solid, right, and that's it. [¶] I kept it solid. . . . I kept it—kept my end of the bargain."

4. Hooker interrogation

Authorities interviewed defendant Hooker on October 12, 2010. Hooker said he went by the name of "Rome." He denied any involvement in the shooting or being present at the scene. He denied knowing Merrill. He initially said he had seen Garcia before but he had never called him on the phone and had never ridden in a car with him. He also said Garcia had never been to his home. Hooker later admitted he had phone calls with Garcia. He admitted Garcia had been to his house on occasion. Hooker initially said he knew Calvin Holmes but that he did not know his name. He also stated he had not hung out with Holmes or been in a car with him, but later admitted he had ridden in Holmes's Chevy Caprice a couple of times and had gone to the store with him.

5. Accomplices' testimony

a. Holmes's testimony

Holmes went by the nickname "ATL" because he was from Atlanta. He is six feet one inch tall and weighed approximately 185 pounds at the time of the murder. He had known Garcia and Hooker for about one month prior to the murder. Garcia is five feet 10 inches tall.

At approximately 6:00 a.m. on November 12, 2009, Holmes picked up Garcia and Hooker in the Northrop area. Holmes drove his four-door, gold Chevy Caprice. He and Garcia had previously planned for him to pick up Garcia so they could commit "a lick," meaning a robbery. Garcia directed Holmes to drive to Seavey Circle in Sacramento, where they would do the lick. Garcia was wearing a green and beige camouflage jacket. Both Garcia and Hooker were wearing backpacks.

When they arrived at Seavey Circle, Garcia went into an apartment to get Merrill. About 10 minutes later, Garcia and Merrill came back to the car. Garcia introduced Merrill to Holmes as "Briss." Merrill told the group the person they were going to rob was "ready in position." However, they ultimately did not attempt to rob that person. Holmes said they could have been at Seavey Circle for an hour and a half.

Garcia did not want to go home empty handed. He said they could steal some laptops, weed, and money from a person in Oak Park. Everyone agreed to this new target. Garcia guided Holmes to Oak Park. While driving, Holmes heard the other three say they all had their guns. Holmes did not have a gun, and he did not see anyone with a gun in the car.

Garcia developed the plan. He would knock on the door, and the others would rush in as soon as the man opened the door. Garcia would tell the man to lie down. When they arrived at the location, Garcia said he would knock on the door a couple of times, and if the man did not answer, he would leave. He said the lick would be an "easy in and out." Garcia was the group's ringleader.

Holmes parked the car on a corner of the street near an alley, as Garcia directed. Garcia told Holmes to wait in the car and keep it running. He also told him to open the trunk so they could get their backpacks out. Garcia got out and walked to the rear of the car. Merrill and Hooker got out of the car, and the three walked away. At the time, Holmes did not see anyone smoking marijuana.

Holmes stayed in the car, but did not leave it running. About five minutes later, he heard a gunshot. He started the car and began to leave. He saw Garcia, Merrill, and Hooker running towards his car, so he stopped briefly. Garcia told him to drive and got in the front passenger seat. Holmes started to go, and Merrill and Hooker had difficulty getting into the backseat, but they got in. Holmes asked what happened, but no one answered. He drove onto the freeway.

Merrill looked scared. He asked Garcia a couple of times why he did that. Garcia said he "had to, he moved." Merrill called Garcia "stupid" and asked, "Why did you do that? You didn't have to." Garcia told him to "shut up" and again stated that "he moved." Merrill looked the most frightened. Garcia and Hooker looked as if nothing happened.

Holmes told them he was taking them back to Northrop. Merrill wanted Holmes to take him home to Seavey Circle. Garcia told Holmes how to get to Northrop. Holmes dropped all three men off at the same place he picked up Garcia and Hooker earlier that morning. As the three got out of the car, Garcia told them not to talk about it again.

b. Merrill's testimony

Merrill grew up in Oak Park. He had known Garcia since they were in elementary school. He had seen Hooker twice before the murder. Hooker was about five feet five inches or five feet six inches tall. Merrill did not know Holmes's name before the day of the murder, but he knew of Holmes.

About eight months before the murder, Merrill went to Garcia's house. Garcia's wife, Ebony, was crying and Garcia was angry. Garcia told Merrill that Kirby, a marijuana dealer Garcia frequented, tried to make a pass at him. A couple of weeks later, Garcia and Merrill went to Kirby's apartment to rob him, but they decided against it because there were too many people outside.

On November 12, 2009, Garcia and Hooker appeared at Merrill's apartment at approximately 7:30 a.m. Merrill lived on Seavey Circle with his girlfriend Leangela Hazelwood. Garcia asked Merrill if he knew of any "licks," or robberies, to be had. Merrill said he did not. Garcia asked about robbing a man who lived in Merrill's apartments, but Merrill told him not to rob that man.

Merrill asked Garcia if he could give him a ride to the store to get a Swisher.² So Garcia, Hooker, and Merrill got into a car driven by Holmes. Merrill was introduced to Holmes as "Briss," and Holmes was introduced to Merrill as "ATL." Holmes had a .357 revolver sitting in the car's center console. Hooker had a black .380-caliber revolver in his waistband.

2 A Swisher is a cigar. Merrill said he breaks the cigar in half, removes the tobacco, puts marijuana in, and rolls it back up. A "blunt" is another word for a converted cigar.

That morning, Garcia was wearing a camouflage jacket and a black ski mask beanie that had three holes and could cover his face when it was rolled down. He also had a black backpack. Hooker was wearing a black hoodie and a ski mask or beanie. Merrill was wearing a black hoodie and blue jeans.

Holmes drove the group to a market. Merrill went inside the store to buy a Swisher. Garcia and Hooker stood outside talking with another friend from Oak Park. Garcia showed the friend his gun, a semiautomatic. Merrill also saw Garcia's gun.

Back in the car, they all smoked a marijuana blunt Merrill had just made. Garcia suggested they hit a target who sold marijuana and who drove a Jaguar, and he directed Holmes how to get there. From their plan months earlier to rob Kirby, Merrill knew Garcia was referring to Kirby and was directing Holmes to Kirby's apartment.

Holmes parked his car on 33rd Street. He did not leave the car. Merrill got out of the car first because he saw someone he knew, a man named Jeff Miles, in the alley behind the victim's apartment building. Still smoking his blunt, Merrill walked down the alley and talked with Miles. Miles and his girlfriend were there getting a computer fixed by Kirby. Merrill walked back to the car and explained the situation to Garcia. Garcia told him to tell Miles to get out of there.

Merrill went back and told Miles to leave. Miles went upstairs into the apartment building to get his girlfriend, and Merrill walked them to their car on V Street. As he did, Garcia walked down V Street and into the apartment complex's front entrance. When Merrill walked back, he saw Hooker, who had walked to the complex from the alley, walk up the apartment stairs.

When Merrill got to the bottom of the apartment stairs, Garcia was at the top of the stairs, and Hooker was standing on the stairs about halfway up. At that point, the plan was for all three of them to go into Kirby's apartment if he opened the door and backed up. Merrill did not have a gun with him because he did not own one.

While standing at the bottom of the stairs, Merrill noticed a White man seated in front of an apartment smoking a cigarette. He looked towards the man. He noticed a White lady inside an apartment sweeping the floor. He looked up and saw Garcia on the landing at the top of the stairs, close to Kirby's door, with his gun out. Garcia's ski mask beanie was rolled down. Merrill's and Hooker's hoodies were over their heads. Hooker also had his gun out.

Garcia knocked on Kirby's door. He also covered the door's peephole with his hand. From inside the apartment, Kirby asked who it was. Garcia said something like "Bob" in a gruff voice. Kirby opened the door. Garcia pointed his gun straight at Kirby. Kirby grabbed the gun's barrel and started tussling with Garcia while trying to close the door. Hooker came to Garcia's aid and tried to push him into the apartment. Merrill started to make his way up the stairs. After Merrill had gone up a step or two, he heard a shot.

The three men ran down the stairs, Merrill in the lead, followed by Hooker and Garcia. Merrill heard the White lady ask what was going on up there. They ran towards the car. Merrill asked Garcia twice why he did it. Garcia said "it went bad, it went bad."

The car was still parked on 33rd Street. When Merrill and Garcia got in, Holmes started pulling out, but he almost left Hooker. Holmes stopped, and Hooker got in. As they left the area, Garcia said Kirby got shot in the head. Merrill kept asking Garcia why he shot Kirby. He called Garcia "stupid." Garcia kept saying it was going to be all right. Holmes drove them out of Oak Park and onto the freeway.

Merrill asked to be taken home to Seavey Circle, but the other three wanted to go to the Northrop area where Garcia lived. Holmes drove them to Northrop. Along the way, Garcia said he had to shoot Kirby because he thought Kirby was trying to pull a gun from behind the door. Garcia also told everyone, "Loose lips sink ships."

At Northrop, Hooker got out and walked off. Garcia and Merrill got out and went inside Garcia's house, and Holmes drove away. Merrill asked Garcia to call his sister-in-law, Parrish Smith, to take him home. Garcia asked Merrill to call Jeff Miles, the man Merrill spoke to in the alley before the murder, to make sure he did not say anything to the police. Using Garcia's phone, Merrill called Miles's sister to get Miles's phone number. Then he called Miles, but Miles did not answer.

Smith picked up Merrill and Garcia. She took them downtown to an appointment Garcia had somewhere near E Street. She and Merrill waited in the car for about 10 minutes while Garcia was gone. After Garcia returned, Smith and Garcia dropped Merrill off at his home on Seavey Circle.

6. Cell phone records

Cell phone records documenting the use of Garcia's cell phone on the morning of the murder indicate it traveled in the directions and to the locations as testified by Merrill and Holmes. The records show the phone was likely in the Northrop area early that morning where Garcia lived, then traveled to Seavey Circle where Merrill lived, and then went silent during the time of the murder. Afterward, it returned to the Northrop area, then went to downtown Sacramento, and then went to Seavey Circle. From there, it traveled back to the Northrop area.

When a call is placed from a cell phone, or handset, the phone is in contact with different cell sites.³ A radio link is established between the phone and typically the nearest tower. If a more efficient tower can be used, the link will change to that tower. The link can jump from tower to tower during the course of a phone call.

3 Sometimes a cell site is a tower, but not always. We use the term "tower" for consistency when referring to either a cell site or a cell tower.

From 5:22 a.m. to 5:46 a.m. the morning of the murder, calls and text messages to and from Garcia's phone pinged off towers nearest his home in the Northrop Avenue area.⁴ During this time period, calls were made to phones belonging to Holmes and Merrill's girlfriend Leangela Hazelwood.

4 On this court's request from the superior court, we have added to the appellate record exhibits 169, 172, and 173, which were admitted into evidence at trial. These exhibits consist of maps showing the locations of various cell towers and lists of phone calls and text messages.

After these calls, Garcia's phone began to move away from the Northrop area. At 5:49 and 5:51 a.m., five calls pinged off a cell tower near the intersection of Arden Way and Howe Avenue, about one mile northwest of Garcia's residence. These calls connected Garcia's phone with Merrill's and Hazelwood's phones.

At 5:58 a.m., a call from Garcia's phone pinged off two towers located near the Capital City Freeway portion of I-80 in East Sacramento. This call connected with a phone belonging to Garcia's friend, Tanisha Craven.

The next set of calls from Garcia's phone between 6:02 a.m. and 7:40 a.m. pinged off two towers located near Seavey Circle where Merrill lived, a neighborhood near the Interstate 5 and U.S. Route 50 interchange. Those calls connected with phones belonging to Holmes, Hazelwood, Craven, and one unidentified person. No calls were made to Merrill's phone during this timeframe. At 7:15 a.m., Garcia's phone received a text: "You all right, Baby?" This was followed by a "Yeah" from Garcia's phone to the phone belonging to his wife, Ebony.

Between 8:00 a.m. and 8:20 a.m., Garcia's phone was not in use. Sacramento Police Department Detective Kyle Jasperson, who investigated the phone records, determined the murder occurred between 8:10 a.m. and 8:14 a.m.

Garcia's phone then headed back to the Northrop area. At 8:20 a.m., a call made from Garcia's phone pinged off the Arden Way tower. At 8:27 a.m., Garcia's phone received a text from a person named "Mya Poo," the alleged mother of Hooker's children. The text asked, "Is Roman with you? Could you have him call me, please."

Between 8:28 a.m. and 8:37 a.m., the calls once again pinged off the towers closest to Garcia's home in the Northrop area. During this time period, three calls were made to a phone belonging to Jeff Miles, and one was made to a phone belonging to Parrish Smith.

At 8:47 a.m., a text from Garcia's phone to Ebony's read, "Baby, I love you so much on God." A return text from Ebony's phone read, "I love you so much too baby, just hope you know I stay solid."

Garcia's phone then traveled to downtown Sacramento. At 8:49 a.m., the phone received a call that pinged off a tower located near the Highway 160 and Capital City Freeway interchange. A text from his phone to Ebony's at 8:52 a.m. read, "I know, baby."

At 8:53 a.m., a call from Garcia's phone pinged off a tower located near Highway 160 and Del Paso Boulevard. This call connected with the location where Garcia had an appointment.

From 8:57 a.m. until 9:05 a.m., all of the calls or texts connecting with Garcia's phone pinged off a tower located downtown on E Street closest to the location of Garcia's appointment. Garcia's phone made or received calls or texts to or from phones belonging to Smith, Ebony, and a person known as Mama D.

The next set of calls showed Garcia's phone traveled to the Seavey Circle area, and then traveled back to the Northrop area. From 9:15 a.m. until 9:18 a.m., the calls pinged off the towers nearest Seavey Circle. These included connections with phones belonging to Craven and others.

From 9:29 a.m. until 9:56 a.m., the calls and texts moved from pinging off the Seavey Circle towers to one near U.S. Route 50 and Howe Avenue, and then to the towers closest to Northrop. During this time, Garcia's phone connected with, among others, phones belonging to Mama D. and Mya Poo. A message from Mya Poo's phone at 9:57 a.m. read, "When you get to Mama D's house can you have Roman call me please. It's important."

That night at 10:14, a text from Garcia's phone to Ebony's phone said, "I'm staying at Rome's house, baby. The feds been lurking around the house, baby. I'll be home in da morning." Ebony responded, "What? No, ain't nobody by the house. You need to come home, baby, for real."

On November 14, 2009, two days after the murder, Garcia's phone received a text from Mama D's number. It read, "What happened to you coming back to look out for your mama?" Garcia's phone responded, "Sweetheart on me. I got to handle something. Loose lips sink ships." A text that day from Hazelwood's number to Garcia's phone read, "Good morning. You talk to Briss yet?" Garcia's phone responded, "No. He's MIXTMIA."⁵

5 The record does not explain what "MIXTMIA" meant.

On November 27, Merrill texted to Garcia, "What up, solid on Omerta, code of silence. I love you." "Omerta" means code of silence.

CONVICTION AND SENTENCING

A jury found Garcia and Hooker guilty of felony murder with a special circumstance and attempted robbery. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17)(A), 664/211.)⁶ The jury found not true allegations that Garcia intentionally and personally discharged a firearm to kill Kirby (§ 12022.53, subd. (d)), and that Hooker was personally armed with a firearm in committing the crime (§ 12022, subds. (a)(1), (c)).

6 Undesignated references to sections are to the Penal Code.

The trial court sentenced each defendant on the felony murder conviction with a special circumstance to life in prison without the possibility of parole. It did not impose additional terms on the attempted robbery convictions.

DISCUSSION

I

Sufficiency of the Evidence Corroborating the Accomplices' Testimony

Garcia and Hooker contend insufficient evidence corroborated the testimony provided by accomplices Merrill and Holmes as required by Penal Code section 1111. They claim the evidence does not implicate or connect them to Kirby's murder and attempted robbery.

Garcia argues the evidence shows only a connection to the other alleged perpetrators or the opportunity to commit the crimes. It does not connect him to an act that was an element of either murder or attempted robbery. Indeed, he argues the only evidence of attempted robbery came from the accomplices. He asserts the independent evidence at most shows a possible drug deal gone bad.

Hooker argues the independent evidence shows even less concerning himself. He claims there were no cell phone records, physical evidence, or eyewitness identifications connecting him to the other three men or the shooting independent from the accomplices' testimony. He asserts the only direct evidence regarding himself—a text message the night of the murder from Garcia stating he was staying at Hooker's house, and text messages to Garcia after the shooting from Mya Poo asking him to have Hooker call her—does not corroborate anything Holmes or Merrill said about Hooker's involvement in the shooting or attempted robbery. He argues Jan Hamilton's testimony of seeing a smaller man have difficulty getting into the Chevy sedan corroborated only Merrill's statement to the same effect. It did not tend to connect Hooker to the shooting or robbery. He also argues his denials and subsequent reversals in his interview of having some contact with the three men cannot serve as corroboration because it was not properly admitted to show consciousness of guilt.

We disagree with defendants' contentions. Independent evidence sufficiently corroborated the accomplices' testimony to connect the defendants with the commission of the crimes.

A defendant may not be convicted solely upon accomplice testimony. Section 1111 directs: "A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. . . ."

The corroborating evidence need only tend to implicate the defendant. " ' "The corroborating evidence may be circumstantial or slight and entitled to little consideration when standing alone, and it must tend to implicate the defendant by relating to an act that is an element of the crime. The corroborating evidence need not by itself establish every element of the crime, but it must, without aid from the accomplice's testimony, tend to connect the defendant with the crime." ' [Citation.] 'The evidence is "sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth." ' (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 303.)" (People v. Williams (2013) 56 Cal.4th 630, 679.)

"[T]he entire conduct of the parties, their relationship, and their acts during and after the crime may be taken into consideration by the jury in determining the sufficiency of the corroboration of an accomplice's testimony. [Citations.]" (People v. Narvaez (2002) 104 Cal.App.4th 1295, 1305.) This includes the defendant's own conduct and declarations. (People v. Williams (1997) 16 Cal.4th 635, 680.) False or misleading statements made to authorities may also constitute corroborating evidence. (People v. Vu (2006) 143 Cal.App.4th 1009, 1022.)

Independent evidence establishing a defendant's motive and opportunity and discrediting a defense may be sufficient to corroborate an accomplice's testimony. (People v. Vu, supra, 143 Cal.App.4th at pp. 1021-1022.) Moreover, the independent evidence "need not corroborate the accomplice as to every fact on which the accomplice testifies." (Ibid.)

Our standard of review is deferential. " ' "The trier of fact's determination on the issue of corroboration is binding on the reviewing court unless the corroborating evidence should not have been admitted or does not reasonably tend to connect the defendant with the commission of the crime." ' [Citation.]" (People v. Williams, supra, 56 Cal.4th at pp. 678-679.)

The evidence submitted independent of the accomplices' testimony sufficiently tended to connect Garcia and Hooker to the attempted robbery and murder of Kirby. The prosecution's eyewitnesses corroborated much of Holmes's and Merrill's testimonies. Around 8:00 a.m. the morning of the shooting, Jan Hamilton saw a gold Chevy sedan pull up and park in front of her mother's home on 33rd Street. She saw four men associated with the sedan. One of them was wearing a camouflage jacket and had a small, flat backpack. Another also wore a backpack. This corroborates Holmes's testimony that he parked his gold Chevy Caprice near an alley, and Merrill's testimony that Holmes parked on 33rd Street. It supports Holmes's testimony that there were three men in his car and Garcia was wearing a camouflage jacket. It also corroborates Holmes's and Merrill's testimony that the men intended to rob Kirby, as the jury could reasonably infer the men intended to rob Kirby by force and stash their loot in the backpacks.

Hamilton saw three of the men smoking marijuana. She saw one of the men walk down the alley and return in 30 seconds or so before they all walked down the alley. This corroborates Merrill's testimony that the men were smoking marijuana. It also corroborates his testimony that he walked down the alley first to speak with Miles and then returned to the group before they left the car.

After Hamilton heard the shot, she saw the head of one person as he was getting into the Chevy. She saw three others run towards the car as it started to move forward. She saw a smaller man wearing a dark ski beanie struggle to get into the car's backseat. This corroborates both Holmes's and Merrill's testimony that a gunshot occurred during the attempted robbery, and that Hooker, who was the smallest of the four and was wearing a dark ski beanie or ski mask, had difficulty getting into the moving sedan.

Sean Lawrence was sitting outside his first floor apartment smoking and looked at the man at the bottom of the stairway. He saw the man walk up the stairway but heard the shot before the man could have reached the top of the stairs. He saw three men run down the stairway and towards the alley after he heard the shot. This corroborates Merrill's testimony that, while he was at the bottom of the apartment stairway, he looked at a man who was seated in front of an apartment smoking a cigarette, started walking up the stairs, and, after the shot, he, Hooker, and Garcia ran down the stairs and back to the car.

Christine Pair, after hearing the loud noise, came out of her apartment and asked what was going on up there. Merrill testified he heard a lady he had seen inside an apartment moments earlier ask what was going on up there. Both Pair and Lawrence heard the shot and saw the men run towards the alley leading to 33rd Street. Taken together, the testimony of Hamilton, Lawrence and Pair corroborated the accomplices' testimonies that Garcia, Hooker, and Merrill were the men at the apartment complex who attempted to rob Kirby.

Forensic evidence corroborated the accomplices' testimony. On 33rd Street where the gold Chevy had been parked, investigators found chewing gum that contained Holmes's DNA. They also found a burnt piece of rolling paper for marijuana. The .40-caliber Smith & Wesson casing found at Kirby's apartment was the same type and brand of ammunition officers found inside Garcia's apartment.

Phone records documenting the use of Garcia's cell phone the day of the murder consistently support the accomplices' general descriptions of the men's movements and actions that morning, and corroborate that Garcia and Hooker attempted to rob Kirby. From these records, the jury could reasonably conclude Garcia left his home that morning in the Northrop area with Holmes and Hooker, traveled to Seavey Circle and picked up Merrill, went to Kirby's apartment, went back to Garcia's home, went downtown for an appointment, went back to Seavey Circle to drop off Merrill, and then returned home, consistent with the accomplices' testimony and in the order and at the times those events occurred.

Prior to 5:58 a.m., Garcia's phone was connecting to others from the area where he then lived near Northrop Avenue, including with Holmes, Merrill, and Merrill's girlfriend, Hazelwood. At 5:58 a.m., the phone was on the move near the Capital City Freeway in East Sacramento. This supports Holmes's testimony that he picked up Garcia sometime around 6:00 a.m. in Northrop.

For roughly the next hour and a half, the phone was in the area of Seavey Circle where Merrill lived. During this time, Garcia's phone made no connections with Merrill's phone. This corroborates both Holmes's and Merrill's testimony that Garcia and they were at Seavey Circle before the murder. That Garcia's phone connected with Holmes's phone at 6:08 a.m. can reasonably support Holmes's and Merrill's testimony that Holmes stayed in the car while Garcia went inside other apartments.

Between 8:00 and 8:20 a.m., during the time the murder was committed, the phone was not used. This provides some corroboration of the accomplices' testimonies that during this time, the four men were together in Holmes's car and attempting to rob Kirby.

After the time of the murder, the phone was on the move back towards the Northrop area. It pinged off a tower near Arden Way, northeast of the murder scene, and then it pinged off the towers nearest to Garcia's home for about the next 30 minutes. Three of those calls were to a phone belonging to Miles, and one was to a phone belonging to Smith. This corroborates both accomplices' testimony that they returned to Northrop after the murder. It also corroborates Merrill's testimony that Merrill asked Garcia to call Smith, and, at Garcia's request, Merrill called Miles using Garcia's phone.

The next group of calls shows Garcia's phone was on the move again, this time headed towards downtown. Prior to 9:00 a.m., two calls pinged off towers located near Highway 160. Following those calls, the next set of calls pinged off the tower in the downtown area on E Street closest to Garcia's appointment. These calls corroborate Merrill's testimony that Smith took him and Garcia downtown to an appointment for Garcia somewhere near E Street.

From 9:15 until 9:18 a.m., Garcia's phone pinged off the towers nearest Seavey Circle. This evidence corroborates Merrill's testimony that after Smith took him and Garcia downtown, she took him home to Seavey Circle.

In addition to showing Garcia's likely locations and travels that morning, additional text messages that night and on November 14 show Garcia was aware of his guilt and was concerned about others talking. A text to Ebony's phone that night said he was staying at Hooker's house because "feds" had been "lurking around the house." On the 14th, a text from Garcia's phone responding to one from Mama D said, "I got to handle something. Loose lips sink ships." And a text that day to Garcia's phone asked if he had talked to Merrill. Garcia responded, "No. He's MIXTMIA." Apparently trying to assuage Garcia's concerns, on November 27, Merrill texted to Garcia, "What up, solid on Omerta, code of silence. I love you."

Other evidence showed Garcia was conscious of his guilt. Authorities apprehended Garcia on December 9, 2009, at a bus depot in Los Angeles. He later called Craven and told her he left quickly because he was leaving the country.

Recorded in-custody phone calls further corroborated the accomplices' testimony. On a December 10, 2009 call from jail, Smith told Garcia that Merrill was "singing in," and that he had given the authorities Garcia's name. This call occurred after Merrill first met with authorities and told them Garcia was the shooter.

In a November 2010 telephone call from jail, Garcia told Ebony he had been identified as the shooter, and authorities got him for "that hot one." Ebony also said something was "out of the way." Garcia said, "I know what you're saying, baby. My PlayStation 2?" Ebony said a particular person had it and was supposed to give it back. The jury could have reasonably inferred the two were talking about the murder weapon used in "that hot one."

Garcia also told Ebony it was time to stick to the code. He said, "So all you gotta do is just hold a nigga down, keep it solid, right, and that's it. [¶] . . . I kept it solid. . . . I kept it—kept my end of the bargain."

Other connections to Garcia's phone linked Hooker to the crime. Phone records tended to indicate the two were together the morning of the murder. In her closing argument, the prosecutor referenced a number of text messages between Mya Poo, whom the prosecutor argued was the mother of Hooker's children, and Garcia's phone that were referenced in the phone record exhibits. On November 10, 2009, two days before the murder, Mya Poo texted Garcia's phone at 12:57 a.m. saying, "If Roman is with you, can you have him call home, please." At 9:51 a.m. that same day, Mya Poo texted again, saying, "Can you call MC because I haven't talked to him since 9:00 p.m. last night. Very important." On November 11, the day before the murder, Mya Poo texted Garcia at 3:05 p.m., "Can you have Roman call me, please." At 4:13 p.m., she wrote, "Tell Roman we walked to Walgreen's. It's good." At 11:03 p.m. that evening, she wrote, "Tell my baby I said goodnight." From this last text, the jury could reasonably infer Hooker and Garcia were together the night before, and the morning of the murder.

At 8:27 a.m., after the killing, Mya Poo texted Garcia's phone and asked if Hooker was with them, and to have him call her. Mya Poo texted again at 9:57 a.m., after Smith and Garcia had dropped Merrill off at Seavey Circle and were headed back towards Northrop. This message said, "When you get to Mama D's house can you have Roman call me, please. It's important." From these messages, the jury could reasonably infer Hooker remained with Garcia the morning of the murder, and it could find this evidence corroborated what Holmes and Merrill said about Hooker's involvement.

Hooker argues the evidence in this case is similar to that ruled insufficient in People v. Pedroza (2014) 231 Cal.App.4th 635. There, the Court of Appeal ruled the independent evidence insufficiently corroborated an accomplice's testimony in a murder trial where the evidence showed only that the defendant was in the same gang as the victim and the accomplice, the gang was experiencing frequent in-gang murders, and the defendant was with the accomplice and other gang members some hours after the crime occurred. (Id. at p. 651.) The court wrote: " ' "[I]t is insufficient corroboration merely to connect a defendant with the accomplice or other persons participating in the crime, but evidence independent of the testimony of the accomplice must tend to connect a defendant with the crime itself, and not simply with its perpetrators. It is not with the thief that the connection must be had but with the commission of the crime itself." ' (People v. Robinson (1964) 61 Cal.2d 373, 400, fn. omitted.)" (People v. Pedroza, supra, 231 Cal.App.4th at p. 651.)

Unlike in Pedroza, here there is evidence, discussed above, that connects Hooker with the crime of murder committed during the commission of attempted robbery. In particular, the independent witnesses saw three men run out of Kirby's apartment immediately after the shooting, the shortest one had difficulty getting into Holmes's car, and Mya Poo called Garcia the night before the murder to tell Hooker goodnight and the morning of the murder to leave a message for Hooker. Taken together, all of the independent evidence sufficiently corroborates the essential components of the testimony of Merrill and Holmes. It tends to connect Garcia and Hooker to Kirby's murder during an attempted robbery in such a way as to reasonably satisfy the jury that Merrill and Holmes were telling the truth regarding the elements of the crime.

II

Prosecutorial Misconduct

Garcia and Hooker contend the prosecutor committed numerous incidents of misconduct in her jury argument, and that the cumulative effect of these incidents prejudicially violated their constitutional rights. We disagree. The remarks did not constitute prejudicial error individually or cumulatively.

" 'The applicable federal and state standards regarding prosecutorial misconduct are well established. " 'A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process." ' " [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves " ' "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." ' " [Citation.]' (People v. Samayoa (1997) 15 Cal.4th 795, 841.)" (People v. Hill (1998) 17 Cal.4th 800, 819.)

" '[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.' [Citation.]" (People v. Ochoa (1998) 19 Cal.4th 353, 427.) " ' "[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature." [Citation.]' " (People v. Williams, supra, 16 Cal.4th 153, 221.) However, a prosecutor may not misstate the law. (People v. Mendoza (2007) 42 Cal.4th 686, 702.) Also, a prosecutor " 'may not assume or state facts not in evidence [citation] or mischaracterize the evidence [citation].' [Citation.] 'Whether the inferences a prosecutor draws are reasonable is for the jury to decide.' [Citation.]" (People v. Harrison (2005) 35 Cal.4th 208, 249.)

"We review the trial court's rulings on prosecutorial misconduct for abuse of discretion. [Citation.]" (People v. Peoples (2016) 62 Cal.4th 718, 792-793.) We address each allegation of misconduct in turn.

A. Arguing facts not in evidence.

Garcia contends two comments by the prosecutor—that cell phone records supported the accomplices' testimony, and Garcia had an injury to his left eye in 2009—argued facts not in evidence. We disagree.

1. Background

Regarding the cell phone records, the prosecutor stated: "So your question is, is [Garcia's phone] there at those locations, because those are the things that the accomplices say, not realizing what's going to be borne out by phone records. They have no idea that detectives look at towers and can determine information when they're investigating this."

Garcia's counsel objected, claiming the statement assumed facts not in evidence. The trial court sustained the objection.

Later, the prosecutor referred to Jan Hamilton's testimony that the person she saw wearing a camouflage jacket had a droopy eye. The prosecutor stated: "And the other thing [Hamilton] noticed had to do with the guy in the camo jacket. Because from her vantage point upstairs on her mom's porch, she's a flight up, she said the male in the camo had droopy eyes. I said droopy left eye. And she saw something on the left side of his face, on the side—on the side of his left eye, kind of like smoosh [sic], like a scar or an old injury healing, like a healing injury, something, maybe a discoloration, maybe a remnant of a scar. That was not all.

"You'll see a couple of exhibits. One is Exhibit 188. It's a picture of Elias Garcia. When you see it up close, it's going to be very faint. You're going to see a couple of lines almost come down right on his eyebrow, very faint. And this particular exhibit, which is People's 188, is the photo taken of Elias Garcia on December 10th, 2009, almost a month after the killing. [¶] . . . [¶]

"Then you'll see another exhibit, one is folded up, it's People's 160, and another exhibit, 189. What you're going to see, and this is back in April of 2009, April 23rd, 2009, what you're gong to see, Mr. Garcia with what appears to be an injury on that side of his face.

"So Ms. Hamilton sees quite a bit accurately, and these are not coincidences. She sees something, whether it's a discoloration, whether it's a slight remnant of a scar, it's something on that left side of the face. That is not a coincidence. Mr. Garcia, in 2009, had an injury."

Garcia's attorney objected at this point, arguing the prosecutor's statement assumed facts not in evidence. She continued, "There's no testimony regarding anything in April of 2000 [sic].)" The trial court sustained the objection and reminded the jury to "remember what the attorneys say is not evidence."

Prior to judgment and sentencing, Garcia moved for a new trial based in part on prosecutorial misconduct for referring to facts not in evidence and on grounds now raised on appeal. Hooker joined in the motion. The trial court denied the motion as to prosecutorial misconduct. The court stated: "As to the claim that there should be a new trial granted because of prosecutorial misconduct, the Court admonished the prosecutor regarding the comments at issue that have been identified in the briefs and on the record during the trial. The Court quoted the prosecutor's comments and instructed the jury that they were not proper and to disregard the comments for any and all purposes.

"The Court further inquired if the jury could follow the Court's instructions, and the Court was assured that they could, indeed, follow the instructions and was assured that no one of the jury would have any difficulty following the Court's admonition. The Court felt sure at the time that they could follow the Court's specific instructions about the prosecutor's comments, and the Court feels confident now the jury, indeed, did do that. Any potential prejudice was cured, and the Court finds there was no prejudice to the defense."

2. Analysis

The trial court did not abuse its discretion in ultimately concluding the defendants suffered no prejudice due to the prosecutor's comments. By sustaining the objections, the trial court ruled there was no evidence in the record showing the accomplices did not know detectives would review cell phone records or that Garcia had an eye injury in 2009. However, there is no reasonable likelihood the jury construed or applied the prosecutor's remarks in a prejudicial fashion. The court adequately instructed the jury not to consider the attorneys' arguments as evidence. It also sustained Garcia's objections and admonished the jury not to consider the prosecutor's comment as evidence. Moreover, the jury, having viewed the photographs of Garcia, could determine for itself whether the prosecutor's inference that Garcia had an eye injury in 2009 was reasonable.

In any event, there was no prejudice under either a federal or state standard of error. The evidence against Garcia, including the accomplice testimony, which we have determined was sufficiently corroborated, was overwhelming. There is no reasonable doubt Garcia and Hooker would not have received a more favorable verdict had the prosecutor not made these comments.

B. Vouching

Garcia and Hooker contend the prosecutor committed misconduct when she said there were other reasons she could not disclose as to why the prosecution did not make a deal with Hooker. We conclude the trial court sufficiently cured the error to render it harmless.

1. Background

During her rebuttal, the prosecutor explained why she did not make a deal with Hooker. She said, "Now, I know Ms. Parisi [Garcia's counsel] alluded to why I made deals. Why I made deals. And she almost said something about Roman Hooker, he's not any different than—really, under the DA's theory, he's not any different than Calvin Holmes and Chris Merrill, under her theory. Well, number one, he doesn't cooperate. Number two, he lies to the cops. Number three, he stays solid. Number four, he's second on the stairs. Number five, he's armed.

"And there may be other reasons that are absolutely inappropriate for me to talk about in this argument."

Counsel for Garcia and Hooker objected to the argument as improper, and the trial court sustained the objections.

The prosecutor then continued, "When verdicts or cases are over, that's when we can talk to jurors. And we can't talk to jurors during a case. We're not supposed to say anything more than maybe hello to you or smile to you."

Counsel for Hooker moved for mistrial. He argued the prosecutor stated there was evidence the jurors did not know but would certainly use to convict Hooker if they did. Counsel for Garcia joined in the motion, claiming the prosecutor compounded the error by telling the jurors she would tell them all the evidence she had after trial.

The prosecutor stated her argument was in response to defense arguments that this was a trial by deal and the jury should question why deals of leniency were made. Her point was it was inappropriate for her to discuss why deals were made.

The court ruled the prosecutor's statement that she could not discuss other reasons for not making a deal with Hooker was improper. The statement invited the jury to speculate on reasons not in evidence why the prosecutor did not make a deal with Hooker. However, the court denied the motion for mistrial. It believed any prejudice could be cured by referencing the statement to the jurors, instructing them it was improper, and directing them to disregard the statement for any and all purposes. The court believed the jury would follow this instruction.

At the conclusion of the prosecution's rebuttal, the court instructed the jury on the improper statement as follows: "Before I instruct you on the law, I do want to refer to a comment Ms. Bagley [the prosecutor] made in her rebuttal. In discussing the differences between Mr. Hooker, Mr. Merrill and Mr. Holmes, Ms. Bagley stated [']there may be other reasons that are absolutely inappropriate for me to talk about in this argument.['] That statement was improper. You are to disregard it for any and all purposes. Counsel's personal feelings and personal opinions are not appropriate for them to discuss and are irrelevant. You are to evaluate this case solely based on the evidence presented during this trial and not based on any speculations, suggestions, suspicions or anything else, just solely based on the evidenced presented during this trial.

"Is there any one of you who does not understand the admonition I just gave you?

"Okay. I see no hands.

"Is there any one of you who would have any difficulty or hesitancy in following the instruction—the admonition I just gave you in full?

"Okay. Again, I see no hands.

"And then I'd like to see an affirmative response. Can you assure me that you can follow the admonition I just gave you?" The jury responded, "Yes."

2. Analysis

"[I]t is improper for a prosecutor to argue that he has a superior knowledge of sources unavailable to the jury." (People v. Williams, supra, 16 Cal.4th at p. 257.) The prosecutor here referred to facts not presented at trial to support her decision not to make a deal with Hooker, but the error was harmless. The prosecutor stated she did not make a deal with Hooker because he did not cooperate with police, he lied to police, stayed "solid," was the second person on the stairs, was carrying a gun, and possibly for other reasons she could not discuss. Had the prosecutor not made the last point, there is no doubt the jury would not have changed its opinion of Hooker's credibility, or of Holmes's or Merrill's credibility. Her stated legitimate reasons were unassailable.

In addition, the court instructed the jury the last point was inappropriate, admonished the jury not to consider it for any reason, asked the jurors if they understood the admonition, and asked the jurors if they would have difficulty complying with the admonition. These instructions and admonitions cured any possible harm from the prosecutor's comments. In light of this and the overwhelming evidence against Hooker, the prosecutor's comment did not deny him his rights to due process.

C. Personal opinion and speculation

Garcia claims the prosecutor committed misconduct by injecting her personal opinion into her argument on three occasions. We conclude any error was harmless.

1. Background

First, the prosecutor commented on why the jurors should believe the accomplices. She argued, "Why believe them? I remember when you were chosen as jurors, one of the things I said was, you don't have to like anybody, just have to believe them. We're going to elicit questions—answers from the questions. You have to believe them. Doesn't mean you have to feel that you like Mr. Merrill so much . . . that you want to invite him over for dinner, or you want him to be your neighbor who lives across the street from you.

"I thought about Mr. Merrill. I probably wouldn't want him to live across the street unless I helped raise him and he thought of me as his grandma and if I couldn't get around it. I probably wouldn't feel safe if I had to admit I like Mr. Holmes.

"MS. PARISI [counsel for Garcia]: Your Honor, I'm going to object. Personal opinion is not important.

"THE COURT: Sustained.

Second, the prosecutor argued in rebuttal that Merrill and Holmes participated in the crime because they trusted Garcia. She stated, "Why does Calvin Holmes trust Chris Merrill, who he's never met? Because he trusts Elias Garcia. After all, Elias Garcia is not going to hook me up with someone who is not going to stay solid, because I know Elias Garcia. [¶] You can listen to the jail calls and look at the text messages, the few that you happen to understand. This is the guy who lives by the code. Merrill knows it. Holmes probably thinks it. Why not

"MS. PARISI: Objection, speculation.

"THE COURT: Sustained."

"MS. BAGLEY: —why not trust who Elias Garcia introduces me to that day. [¶] Garcia's the one who knew Kirby. This is Garcia's gig."

Third, responding in rebuttal to defendants' argument that Merrill and Holmes are not believable, the prosecutor argued, "Anyone come in and ID—any of these independent witnesses come in and ID these two men at the table? Well, that would be a really difficult thing to do, very difficult. They're dressed like alter boys. One is wearing goggles. It would be a very difficult thing to do. The witnesses were very clear. At the scene, they did not see them well enough to ID anyone, no one.

"They said believe [Hooker's brother] that Elias Garcia wears glasses. I'm telling you he doesn't wear glasses.

"MS. PARISI: Your Honor, I'd object.

"THE COURT: Sustained.

"MS. BAGLEY [the prosecutor]: The testimony from the detective, after seeing him a half dozen times, was he doesn't wear glasses. The testimony from Chris Merrill, who has known him since 6th grade, is he doesn't wear glasses. Testimony from Calvin Holmes is he's never seen him in glasses. Yet he's honest enough to tell you that on occasion he's seen Roman Hooker wearing glass[es]. However, you don't see Roman Hooker wearing glasses during his interview in 2010. And you don't see him wearing glasses when he's arrested and having the booking photos taken."

2. Analysis

"[P]rosecutors should not purport to rely in jury argument on their outside experience or personal beliefs based on facts not in evidence." (People v. Medina (1995) 11 Cal.4th 694, 776.) However, the prosecutor's expression of opinion in the three incidents just mentioned did not rise to the level of prejudicial error.

The prosecutor's first comment that she would not feel safe if Merrill lived by her or if she had to admit she liked Holmes was not prejudicial error. The prosecutor was commenting on her earlier statement that jurors did not need to like the accomplices in order to believe them. Her comment was likely based on the accomplices' criminal records as presented at trial. If anything, the comment more likely hurt the prosecution in its attempts to have the jury believe Merrill and Holmes.

In the second comment, the prosecutor speculated Holmes thought Garcia lived by the code. This speculation was error, as it lent credence, without evidentiary support, to the prosecutor's argument that Garcia was the mastermind behind the crimes. But the statement was harmless given the extensive amount of evidence that demonstrated Garcia was in fact the mastermind.

Third, the prosecutor's statement that Garcia did not wear glasses was a comment based on the evidence at trial that Garcia in fact did not wear glasses. The jury would have interpreted the statement as argument based on evidence, not speculation or opinion.

In any event, the trial court cured any prejudice resulting from these statements. It repeatedly told the jurors attorney remarks were not evidence and that counsel's personal feelings and opinions were irrelevant and not to be considered. The court specifically instructed, "Counsel's personal feelings and personal opinions are not appropriate for them to discuss and are irrelevant. You are to evaluate this case solely based on the evidence presented during this trial and not based on any speculations, suggestions, suspicions or anything else, just solely based on the evidence presented at trial." In light of the admonitions and instructions, any potential error was harmless.

D. Commenting on Garcia's silence

Garcia contends the prosecutor made a veiled comment on his failure to testify. He claims she did this by suggesting he knew where the gun was located. We conclude the prosecutor's comment did not concern Garcia's failure to testify.

1. Background

Garcia's counsel argued Garcia and his wife were not talking in code when he spoke with her by telephone from jail about a PlayStation 2. In rebuttal, the prosecutor argued, "Ms. Parisi says that there's no code talk in that phone call between Ebony Garcia and Elias Garcia. You listen to it again. You tell me. You tell me. Figure it out yourself. You're the finders of the facts. If Ebony is not talking about a gun, and it's not even this gun, this is a year later.

"MS. PARISI: You Honor, object, improper argument.

"THE COURT: So I'm gong to remind you that what the attorneys say is not evidence. This is just their interpretation of what the evidence has shown. You are the only determinators of what the evidence has shown in this case.

"MS. BAGLEY: That phone call takes place on November 11^th, 2010, about a year after the homicide. Mr. Merrill indicates that Garcia told him he got rid of the gun and sold it to someone in Stockton. During this jail call, if you hear it again, you will hear that it's very clear, Ebony is anxious to discuss getting rid of something. He then segues right into Play Station. Did you get rid of my Play Station, you feel me? It goes on and on. It's not going to be that gun. The gun is gone by then."

2. Analysis

Garcia claims the prosecutor made a veiled comment on his failure to testify by suggesting he alone knew where the murder weapon was located and that he was involved in other crimes. The Attorney General argues the prosecutor was only commenting on the evidence by drawing an inference from the phone conversation that Garcia was concerned about the murder weapon. While the prosecutor's statement is unclear, we agree with the Attorney General it at most was a comment on the evidence, not on Garcia's failure to testify.

The Fifth Amendment prohibits a prosecutor from commenting, either directly or indirectly, on a defendant's failure to testify. (Griffin v. California (1965) 380 U.S. 609, 615 [14 L.Ed.2d 106, 110]; People v. Medina, supra, 11 Cal.4th at p. 755.) "It is well established, however, that the rule prohibiting comment on defendant's silence does not extend to comments on the state of the evidence, or on the failure of the defense to introduce material evidence or to call logical witnesses. [Citations.]" (People v. Medina, supra, at p. 755.)

The prosecutor's comment concerned the state of the evidence. During the jailhouse call, Ebony said, "[Y]ou already know, it's already, you know, out of the way." Garcia said, "I know what you're saying, baby. My PlayStation 2? [¶] . . . [¶] Um, where you take my PlayStation 2 at? You threw it away?" Ebony said "Kay Ray" had it, and he was supposed to give it back. Commenting on this evidence, the prosecutor seemed to say Garcia and Ebony spoke in code about a different gun that was not used in the Kirby murder. The Attorney General interprets the prosecutor's statement to concern the location of the murder weapon. In either case, the statement was not a veiled comment on Garcia's failure to testify. The prosecutor was making an argument of fact, and she reminded the jurors they would decide that argument.

The statement also cannot be interpreted as suggesting Garcia alone knew where the murder weapon was located. The prosecutor stated Garcia told Merrill he sold the gun to someone in Stockton, and she asserted Garcia and Ebony talked in code about the location of a gun. Neither statement suggests Garcia alone knows anything about the location of a gun.

Under these circumstances, there is no reasonable likelihood the jury understood the prosecutor's comments to refer to Garcia's decision not to testify.

E. Shifting the burden of proof

Garcia contends the prosecutor improperly shifted the burden of proof to the defense by suggesting defense counsel bore the burden of subpoenaing witnesses who would corroborate the accomplices' testimony. The prosecutor's argument did no such thing.

1. Background

Merrill testified that a few days after he sent a text to Garcia, he and Garcia had a confrontation. Standing outside at Seavey Circle with a group of people, Garcia threatened Merrill because Merrill had talked to a friend about the crime. He had brought a gun with him, but Ebony convinced him to give it to her.

Responding to defense counsel's closing argument that no physical evidence was discovered, the prosecutor stated, "Ms. Parisi mentioned the cops come up empty. Where's the camo jacket? Where's the beanie? Where's the gun? Well, we know the gun's gone. They come up empty. They searched his house. They searched his house three weeks later on 12/3, the afternoon after Chris Merrill names him as the gunman. But what else do we know? We know that on the 1st, two days later, he is confronting Chris Merrill, that Chris Merrill is talking too much about this crime.

"Now, why in the world would someone like Elias Garcia hang onto a camo jacket, the beanies and the gun when he knows his good friend is talking about the crime and feels he's talking about the crime enough to go confront him and pull a gun on him at Seavey Circle.

"Did it happen? They're telling you, oh, no, the prosecution hasn't proved it happened, no corroboration of that. That's not what he's being charged with. Understand that. Again, there's Chris Merrill telling you, Leangela was there, [someone named] Sean Lim was there, naming people who could come in, if they're willing to come in, as easily for him as they would for Chris Merrill.

"MS. PARISI: Your Honor, I'm going to object. It's an attempt to shift the burden.

"THE COURT: I want to make sure that you understand you'll be instructed. And you've heard, repeatedly, that the burden of proof is on the prosecutor, and the prosecutor only. The defense has no burden of producing any evidence. However, the law does allow the DA to comment on any failure to call logical witnesses. But please be clear that the only burden of proof is on the prosecutor, and prosecutor only. And that burden is proof, every charge, all the elements of the charge, beyond a reasonable doubt.

"MS. BAGLEY: Absolutely. And the defense has subpoena powers just like I do."

2. Analysis

A prosecutor may not attempt to shift or lower the burden of proof. (People v. Hill, supra, 17 Cal.4th at p. 829.) However, a prosecutor may comment on a defendant's failure to call a logical witness where the witness has not exercised his privilege against self-incrimination. (People v. Bell (1989) 49 Cal.3d 502, 539; People v. Ford (1988) 45 Cal.3d 431, 449.)

Here, the prosecutor exercised her prerogative to comment on Garcia's failure to call logical witnesses. Garcia could have called Leangela Hazelwood or Sean Lim to impeach Merrill's testimony, but he did not. There is no evidence either of these potential witnesses would have exercised their Fifth Amendment right if called to testify. The prosecutor thus was well within her discretion to comment as she did.

And there is no doubt the jury understood the prosecution solely bore the burden of proof on each element beyond a reasonable doubt. Defense counsel and the trial court admonished and instructed the jury on that point.

In summary, none of the various complained-of remarks constitute prejudicial misconduct, either individually or cumulatively.

III

Not Instructing on Lesser Included Offenses

Hooker contends that the trial court erred by not instructing the jury sua sponte on the lesser included offenses of second degree murder, voluntary manslaughter, and involuntary manslaughter. Garcia joins the argument. The contention is without merit. Even if the instructions should have been given, any error was harmless.⁷

7 Because Hooker did not present any argument in his brief supporting his claim for instructions on involuntary manslaughter, that contention is forfeited as to both defendants.

A. Background

The information charged defendants with violating section 187, subdivision (a), by murdering Kirby unlawfully and with malice aforethought. It also accused defendants of murdering Kirby while attempting to rob him, a special circumstance under section 190.2, subdivision (a)(17)(A). The information further alleged, as a separate count, the defendants committed attempted robbery in violation of sections 664 and 211. The prosecutor proceeded from the beginning of trial solely on the basis of felony murder.

Garcia asked the court to instruct the jury on justifiable homicide—self-defense or defense of another (CALCRIM No. 505) and excusable homicide—accident in the heat of passion (CALCRIM No. 511). He also sought an instruction on imperfect self-defense.

The court denied the requests. It denied the request for instructions on self-defense and imperfect self-defense because defendants were not entitled by law to instructions on self-defense or imperfect self-defense in a felony murder. It denied the request for instructing on accident in the heat of passion because there was not substantial evidence to justify giving the instruction.

Defendants' counsel argued Merrill and Holmes were not credible witnesses, their testimony was not corroborated by independent evidence, and insufficient evidence connected defendants to the crime. They did not contend their clients were justified in, or excused from killing Kirby or that they acted in the heat of passion or in imperfect self-defense. Instead, they argued Merrill killed Kirby.

After the verdict, Garcia moved for a new trial alleging the trial court erred by, among other things, not instructing the jury on voluntary manslaughter and involuntary manslaughter. The court denied a new trial, concluding there was no evidence suggesting manslaughter was committed instead of murder.

B. Analysis

"In criminal cases, even absent a request, a trial court must instruct on the general principles of law relevant to the issues the evidence raises. (People v. Breverman (1998) 19 Cal.4th 142, 154.) ' "That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.]" ' (Ibid.) '[T]he existence of "any evidence, no matter how weak" will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is "substantial enough to merit consideration" by the jury. [Citations.]' (Id. at p. 162.)" (People v. Taylor (2010) 48 Cal.4th 574, 623, original italics.) We review independently whether the trial court improperly failed to instruct on a lesser included offense. (People v. Banks (2014) 59 Cal.4th 1113, 1160, overruled on another ground in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.)

" ' "[A] lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." ' ([People v. Smith (2013)] 57 Cal.4th [232,] 240, italics [omitted].) When applying the accusatory pleading test, '[t]he trial court need only examine the accusatory pleading.' (Id. at p. 244.)" (People v. Banks, supra, 59 Cal.4th at p. 1160.)

The information here alleged malice murder. The prosecutor was free to try the case as felony murder because malice murder and felony murder are not two separate offenses. (People v. Carpenter (1997) 15 Cal.4th 312, 394, disapproved on another ground in People v. Diaz (2015) 60 Cal.4th 1176, 1190.) However, under the accusatory pleading test, the defendants were entitled to instructions on first degree murder's lesser included offenses if sufficient evidence indicated not all of the elements of felony murder were present. (People v. Campbell (2015) 233 Cal.App.4th 148, 162 (Campbell).) There is no dispute second degree murder, voluntary manslaughter, and involuntary manslaughter are lesser included offenses of first degree murder. (People v. Thomas (2012) 53 Cal.4th 771, 813; People v. Taylor, supra, 48 Cal.4th at p. 623.)

To determine whether the trial court was required to instruct on any of these lesser offenses, we would examine the record to see if there was substantial evidence that Hooker and Garcia did not commit felony murder. Specifically, we would determine whether there is substantial evidence that defendants did not intend to commit robbery, did not attempt to commit robbery, or that while they attempted to commit robbery, one of them did not cause Kirby's death. (See Campbell, supra, 233 Cal.App.4th at p. 162 [court determines whether there is substantial evidence that defendant did not commit felony murder to decide whether instructions on lesser included offenses of malice murder were required].)

We need not engage in this analysis, however, because even if the trial court erred by not instructing on the lesser included offenses—a point assumed for purposes of argument only—we would find the error harmless. "[E]vidence sufficient to warrant an instruction on a lesser included offense does not necessarily amount to evidence sufficient to create a reasonable probability of a different outcome had the instruction been given." (People v. Banks, supra, 59 Cal.4th at p. 1161.)

"[T]he failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility." (People v. Breverman, supra, 19 Cal.4th at p. 165.) Under the state standard, "such misdirection of the jury is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome." (Ibid., citing Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.)

The California Supreme Court is currently considering whether a trial court's failure to instruct on the lesser included offenses of malice murder was rendered harmless by the jury's finding of a felony murder special circumstance. (People v. Gonzalez (2016) 246 Cal.App.4th 1358, review granted July 13, 2016, S234377 (Gonzalez).) Gonzalez held the trial court's failure to instruct on malice murder, its lesser included offenses, and the defenses of accident and self-defense was at most harmless error where the jury convicted the defendant of felony murder. (Gonzalez, supra, 246 Cal.App.4th at p. 1380, review granted.)

In Gonzalez, the Second Appellate District, Division Four, disagreed with Campbell, in which the Fourth Appellate District, Division Two, held a true finding on a robbery-murder special circumstance and a guilty verdict on a robbery count were insufficient by themselves to show the failure to instruct on the lesser included offenses of malice murder was harmless. According to Campbell, harmless error in this situation must be determined "based on the facts, the defenses presented, the jury instructions given, and the verdicts returned." (Campbell, supra, 233 Cal.App.4th at p. 172.)

The record here demonstrates any error was harmless under the tests announced in both cases.

It is not reasonably probable defendants would have obtained a more favorable outcome had the court instructed the jury on second degree murder or voluntary manslaughter for at least three reasons. First, both of those crimes required proof the killing resulted from an intentional act, and the jury determined Garcia did not intentionally shoot Kirby.

To convict a defendant of second degree murder, the jury must find he intentionally acted with malice aforethought. (§ 187.) Malice may be express or implied. It is express if he unlawfully intended to kill. (§ 188.) Implied malice cannot be found unless the defendant intentionally committed the act that caused the victim's death. (People v. Blakeley (2000) 23 Cal.4th 82, 87.)

To convict a defendant of voluntary manslaughter, the jury must find the defendant intentionally killed another person by acting in a sudden quarrel or heat of passion or in unreasonable self-defense. (People v. Rios (2000) 23 Cal.4th 450, 460-461.)

The jury found Garcia did not shoot Kirby intentionally. Its findings on the firearm enhancements and the special circumstance show the jury determined Garcia shot Kirby unintentionally. The instruction on the gun use enhancement required the jury to find Garcia "personally and intentionally" discharged a firearm during the attempted robbery. The instruction on proving the special circumstance required the jury to find Garcia "did an act that caused the death of another person." By finding Garcia did not intentionally discharge a firearm but he nonetheless did an act that killed Kirby, the jury concluded Garcia unintentionally shot Kirby.

The jury's finding is fully consistent with defendants' convictions of first degree felony murder, an unlawful homicide "even if the killing was unintentional, accidental, or negligent." Because the jury found beyond a reasonable doubt that Garcia shot Kirby unintentionally, there is no reasonable probability it would have found Garcia intended to shoot Kirby had the court instructed it on second degree murder or voluntary manslaughter.

The jury did reject the prosecution's theory that Hooker was armed, but Hooker did not need to be armed in order to have been found guilty of aiding and abetting a first degree felony murder based on attempted robbery. The evidence shows he participated in executing the robbery by being on the stairway as Garcia knocked on Kirby's door and by pushing Garcia into Kirby's apartment while those two wrestled with Garcia's gun. Because the jury found Hooker aided and abetted Garcia in the attempted robbery and Garcia unintentionally shot Kirby, it is not reasonably probable the jury would have found the defendants guilty of second degree murder or manslaughter.

Hooker contends a question the jury sent out during deliberations and the jury's findings on the firearms enhancements show it rejected the prosecution's theory that Garcia shot Kirby, and showed the jury believed Merrill shot Kirby. We disagree. The prosecution's theory was that Garcia and Hooker intended to, and attempted to rob Kirby, and that Garcia shot Kirby as part of that attempt. As just discussed, the jury's finding that Garcia unintentionally committed an act that caused Kirby's death shows the jury concluded Garcia was the shooter. The only act Garcia did that could cause death was fire his gun.

During deliberations, the jury asked the court whether it had to find the "act" that resulted in Kirby's death was the act of pulling the trigger, or whether there were other potential actions that could qualify. The court responded that the jury was not limited to the pulling of the trigger as the act that caused death, but it had to find an act that caused death and whether any defendant was responsible for that act. Hooker claims this question shows the jury did not believe he or Garcia pulled the trigger.

The question cannot be read to imply the jury found Merrill was the shooter in light of the evidence and the jury's actual findings. There is no evidence Merrill shot Kirby or took any action that resulted in Kirby's death. The evidence shows only that Garcia shot Kirby, and this act resulted in Kirby's death. And, again, the jury's finding that Garcia's act resulted in Kirby's death shows the jury concluded beyond a reasonable doubt that Garcia unintentionally shot Kirby during an attempted robbery. These findings show the jury would not have returned a more favorable verdict had the court instructed it on second degree murder or voluntary manslaughter.

A second reason the asserted instructional error was harmless is that the jury found defendants guilty of felony murder and the special circumstance to be true. In this regard, we find the reasoning of Gonzalez persuasive. Gonzalez stated: "In determining whether appellants were guilty of murder under the felony-murder theory, the jury was required to determine first whether appellants committed or attempted to commit robbery, and only thereafter whether a death occurred during the commission of the robbery or attempted robbery. Thus, it is not reasonably probable that appellants would have obtained a more favorable outcome had the jury been instructed on the lesser included offenses of murder. [Citations.]" (Gonzalez, supra, 246 Cal.App.4th at p. 1381, review granted.) By first finding defendants attempted to commit robbery, the jury ended its analysis of defendants' malice or intent. As a result, even if the court had instructed the jury on the lesser included offenses, it is not reasonably probable the jury would have reached them, having first determined defendants committed felony murder.⁸

8 Campbell distinguished earlier Supreme Court cases that held the special-circumstance finding rendered the instructional error harmless because in those cases, the trial court also instructed on first degree malice murder. (Campbell, supra, 233 Cal.App.4th at pp. 166-167; see, e.g., People v. Casteneda (2011) 51 Cal.4th 1292, 1328; People v. Elliot (2005) 37 Cal.4th 453, 476; People v. Koontz (2002) 27 Cal.4th 1041, 1086-1087.) Gonzalez found the distinction unpersuasive, as "an instruction on premeditated and deliberate murder would have done no more than allow the jury to convict appellants under another theory of first degree murder." (Gonzalez, supra, 246 Cal.App.4th at pp. 1381-1382, review granted.)

A third reason the failure to instruct on the lesser included offenses is harmless error as to Hooker is there was no evidence on which the jury could find him guilty of the lesser offenses. Hooker argued he was not involved in the crime. Although Hooker did not testify at trial, he consistently denied to police he participated in the crime or was present at the scene. The jury received this evidence, and his attorney argued he was not at the crime. His denials of participating in the crime or being present at the scene so directly contradicted the prosecution's theory they preempted any instruction on lesser included offenses as to him.

The evidence regarding Hooker indicates he either aided and abetted Garcia's attempted robbery or, as he said to police, he was not involved. Given this evidence, there is no evidence on which a court could base instructions on aiding and abetting second degree murder or voluntary manslaughter. (See People v. Chestra (2017) 9 Cal.App.5th 1116, 1120-1123 [defendant not entitled to instructions on lesser included offenses of murder where only evidence indicates he either intentionally killed the victim or, according to his testimony, he did not participate in the homicide]; People v. Sinclair (1998) 64 Cal.App.4th 1012, 1019-1022.) Had the court instructed on second degree murder and voluntary manslaughter, it is not reasonably probable the jury would have returned a more favorable verdict for Hooker, as there was no evidence on which the jury could find him guilty of the lesser offenses.

IV

CALCRIM No. 362

Hooker contends the trial court erred by instructing the jury with CALCRIM No. 362. That instruction informed the jury that a defendant's knowingly false or misleading statement made before trial relating to the charged crime could show the defendant was aware of his guilt, and the jury could consider it in determining his guilt.⁹ Over Hooker's objection, the trial court determined there was sufficient evidence to support giving CALCRIM No. 362. Hooker first informed the detectives he had seen Garcia before but had never ridden in a car with him. He denied calling Garcia on the phone or having Garcia at his house. He also said he had not hung out with Holmes and had not been in a car with him. Later in the interview, Hooker said he had spoken with Garcia by phone, Garcia had been to his house on occasion, and he had been in a car with Holmes before. He also denied being at the crime scene.

9 The instruction read: "If defendant Roman Hooker made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. You may not consider the statement in deciding any other defendant's guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself."

Before us, Hooker contends CALCRIM No. 362 violated his due process rights because it raised an irrational permissive inference. He contends guilt is not a reasonable inference from making a false statement, but the instruction allowed the jury to consider the statement not just to indicate consciousness of guilt, but also to consider it in determining guilt.

We and the Supreme Court have rejected similar constitutional challenges to CALCRIM No. 362 and its predecessor, CALJIC No. 2.03, and we see no reason to reconsider those rulings here. (People v. Moore (2011) 51 Cal.4th 386, 413-414; People v. McGowan (2008) 160 Cal.App.4th 1099, 1104.) " 'A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury. [Citation.]' [Citations.]" (People v. Mendoza (2000) 24 Cal.4th 130, 180, superseded by statute on another ground as stated in People v. Brooks (2017) 3 Cal.5th 1, 62-63 & fn. 8.) Hooker's consciousness of guilt reasonably follows from his contradictory statements, and authorizing the jury to consider his consciousness of guilt did not violate his due process rights. (People v. McGowan, supra, 160 Cal.App.4th at p. 1104.)

Alternatively, Hooker contends the evidence did not support giving the instruction because his inconsistent statements did not concern the actual crime. We disagree. They related directly to the crime, not to some unrelated past crime or activity. With his statements, Hooker denied being present at the scene and distanced himself from the accomplices, negating his participation in this crime. That connection to this crime was sufficient evidence to justify instructing the jury with CALCRIM No. 362.

V

Cumulative Error

Garcia contends, and Hooker joins in the argument, that the combination of individual errors resulted in a violation of due process. We disagree. Garcia was entitled to a fair trial, not a perfect trial. (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) The few remarks by the prosecutor we concluded were error were not prejudicial, nor were they significant enough to create cumulative error. Had the prosecutor not made those comments, there is no reasonable doubt the jury would have reached the same verdict. Any cumulative impact was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18 .)

VI

Parole Revocation Fines

Garcia claims, and Hooker joins in the argument, that the parole revocation fine imposed on him should be stricken because he was sentenced to life without the possibility of parole. The Attorney General agrees with Garcia on this point, and he asks us also to strike the same fine the court imposed on Hooker. We agree with the parties.

The abstracts of judgment record a $300 restitution fine pursuant to section 1202.45 that is suspended unless parole is revoked. However, a parole revocation restitution fine pursuant to section 1202.45 cannot be imposed where the sentence does not include a period of parole. (People v. McWhorter (2009) 47 Cal.4th 318, 380.)

DISPOSITION

The parole revocation restitution fine imposed on defendants pursuant to Penal Code section 1202.45 is hereby stricken. The clerk of the trial court is ordered to prepare amended abstracts of judgment that do not include those fines and to deliver them to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NICHOLSON, J.^* We concur: RAYE, P. J. RENNER, J.

* Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.