Gaut

Following a joint trial, defendants Daniel David Lopez and Luis Armando Gonzalez (defendants) were convicted of attempted premeditated murder of Shane Daniels (Pen. Code, §§ 187, 664); residential robbery of Rachel Eatmon (§ 212.5, subd. (a)); and grand theft of a firearm from Eatmon (§ 487, subd. (d)(2)) (counts 1, 2 & 3, respectively). As to each of these crimes, the jury found true that Lopez personally used a firearm (§ 12022.53, subd. (b)) and Gonzalez participated in the crimes knowing Lopez was armed with a gun (§ 12022, subd. (a)(1)). Lopez was also convicted of possession of a firearm as a felon (§ 12021, subd. (a)(1); count 4).

In addition, Lopez was convicted of committing a second robbery during a separate incident, which did not involve Gonzalez (§ 211; count 5). The jury found Lopez used a dangerous, deadly weapon, a knife, when committing the count 5 robbery (§ 12022, subd. (1)).

Defendants were each sentenced to life in prison for attempted murder. As to Lopez, the trial court also imposed a consecutive term of 23 years on the other counts. As to Gonzalez, the trial court imposed a consecutive term of four years in state prison on the other counts.

Defendants contend the trial court erred in not severing count 5 and trying it separately. Gonzalez also argues that the trial court erred in refusing to admit Eatmons pretrial statements to a defense investigator, and challenges a modified instruction on the natural and probable consequences doctrine. Gonzalez further argues count 3 is a lesser included offense of count 2 and therefore must be reversed. In addition, sentencing on counts 2 and 3 should have been stayed.

Lopez contends the trial court erred in allowing the jury to hear Eatmons preliminary hearing testimony and in failing to redact from her testimony references to his nickname, "Wicked," and testimony that he was on the run from the police. Lopez also asserts the trial court erred in failing to sua sponte instruct on accomplice testimony. In addition, he argues the photographic lineup procedure used to identify him was unduly suggestive.

Both defendants filed supplemental briefs arguing that the trial court erred in not sua sponte instructing on the claim-of-right defense. Both defendants also argue cumulative error and join in each others contentions to the extent they are applicable.

The People agree count 3 is a lesser included offense of count 2 and therefore the conviction must be stricken. Accordingly, we reverse defendants convictions for grand theft of a firearm (count 3). As to the remainder of defendants contentions, we conclude there was no prejudicial error, individually or cumulatively. We therefore affirm defendants judgments as to all counts, with the exception of count 3.

1. Facts

Eatmon Incident

On June 24, 2004, Shane Daniels was living with Rachel Eatmon, her husband, Bill Eatmon, Eatmons son, Michael, and his wife, Jennifer. The Eatmons son, Jason, and his girlfriend, Ashley Rodolf, were at the Eatmons home at the time of the charged offenses. Eatmons husband was not home.

Danielss Testimony

Eatmon was suffering from terminal brain cancer at the time of the incident. Daniels was Eatmons caretaker and a good friend. A couple of days before the charged offenses, Lopez and Daniels had an altercation over payment for marijuana. Lopez grabbed Daniels by the throat and threw him off a chair.

Around 11:00 a.m., on the day of the charged offenses, June 24, 2004, defendants arrived at Eatmons home in a speeding van. Daniels was outside in front talking with a friend who left when defendants arrived. Daniels suspected something was wrong. It appeared that Lopez was in the van pointing a gun at him. The gun barrel was wrapped in a shirt or towel.

Defendants got out of the van. As they approached Daniels, Lopez said, "Im not here for you, Shane. Dont run. Dont do nothing stupid." Daniels believed Gonzalez had a knife because, when Daniels could not open the front door, Lopez told Gonzalez to "do [Daniels] in." Gonzalez reached for something in his front pocket. Daniels thought it was a knife but did not see Gonzalez pull anything out. With a gun still pressed into Danielss back, Lopez directed Daniels to enter a side door.

As Daniels and defendants walked down the hallway to Eatmons bedroom, Daniels heard Eatmon cocking her gun. When Daniels and defendants entered Eatmons bedroom, Daniels saw Eatmon trying to hide her gun under a blanket. The gun was a silver, loaded .45-caliber semiautomatic pistol. She had purchased it from Lopez because around six months earlier the Eatmons had been robbed.

Lopez pointed his gun at Eatmon and ordered her to give him her gun. At first Eatmon refused. Daniels, who was still being held at gunpoint, told her to give the gun to Lopez. Eventually she did so.

Lopez took Eatmons gun, pointed it at Daniels, and ordered him into the bathroom. When Daniels went into the bathroom, Lopez pushed the gun barrel into Danielss neck and ordered him to tell him where Eatmons coin jars were. Daniels said he did not know where they were. Lopez got angry and yelled at Daniels to "stop bullshitting" him. Lopez ordered Daniels out of the bathroom.

While in the bedroom, at gunpoint, Lopez again demanded Daniels tell him where the coin jars were. Lopez said, "[W]e are taxing you $200." Lopez put the barrel of the gun between Danielss eyes and slowly pulled the trigger. Daniels heard the gun click. The pistol jammed. Lopez was infuriated. He punched Daniels in the mouth. Lopez told Gonzalez to grab Bill Eatmons shotgun in the corner, wrap it in a blanket, and then take it to the living room.

Lopez then ordered Eatmon to open her safe in the bedroom closet. After Eatmon opened the safe, defendants fled when the police arrived. Several minutes after the police arrived, the police took Daniels to the next street over to identify a suspect, whom Daniels identified as Gonzalez.

Eatmons Preliminary Hearing Testimony

Because Eatmon died before the trial, her preliminary hearing testimony was admitted into evidence at the trial. Eatmon testified that she normally referred to Lopez by his nickname, "Wicked." She met Lopez 10 years before the incident and saw him every couple of months. He did not stay long when he visited. Eatmon had never met Gonzalez before the incident although she had seen him walking in the neighborhood with his friends and she knew his name.

Eatmon was suffering from brain cancer and confined to a wheelchair when she gave her preliminary hearing testimony. At the time of the incident in June 2004, she had brain cancer but was not using a wheel chair. She also had degenerative disk disease and fibromyalgia. Eatmon self-medicated with non-pharmaceutical marijuana for her chronic pain. Eatmon smoked marijuana at least four times a day. She also took a lot of medications which altered her perception of events. She could not recall whether she had smoked marijuana the morning of the incident. Eatmon sold marijuana to help pay for her own use of the drug.

Lopez had purchased marijuana from Eatmon four or five times and had smoked it with her. Two days before the incident, Lopez came over to her house to get marijuana. When it was handed to him, he grabbed it, said "I am not paying for this," and left. As he was leaving, he knocked Daniels off a chair and punched him. Eatmon told others she feared that Lopez wanted her gun back and would come get it. Lopez had previously sold her his gun in payment for marijuana.

On the day of the incident, Lopez forcefully entered Eatmons home with Gonzalez. Eatmon heard her daughter-in-law, Jennifer, say Lopez had arrived and wanted the gun. Eatmon then heard Lopez say, "Dont be stupid," "[d]ont get shot." Right after that, defendants appeared at the foot of Eatmons bed. Lopez was holding a gun.

Lopez pointed a silver .45-caliber pistol at her and Daniels, who was standing at the foot of her bed. Lopez told her to give him her gun, which looked like the gun Lopez was holding. When she did not immediately hand it over out of fear he would use it against her, Lopez told her, "Dont be stupid. Give me the gun." Lopez thrust his gun into Daniels neck and said, "Give me the fucking gun." Eatmon removed the loaded gun from under her bed covers and gave it to Lopez.

After Lopez took Eatmons pistol, he grabbed Daniels and shoved him toward the master bathroom, with a gun pressed against the back of Danielss head and shut the door. Eatmon screamed, "Dont kill him. Please dont kill him."

When Eatmon attempted to leave her bedroom, Gonzalez put his hand up a couple of times, causing her to stop. Eatmon began to pull out a bat from underneath her covers. Gonzalez reached for his waistband and told her to put it back. He warned her not to let Lopez see the weapon. Although Eatmon did not see Gonzalez holding a weapon, she construed his gesture of grabbing his waistband as indicating he had a weapon in his waistband.

A couple of minutes later Eatmon slipped out of her room. She ran out the back door. She realized there was nowhere for her to go and walked back to her bedroom. Gonzalez and Lopez were walking down the hallway towards the front of the house. Lopez grabbed Daniels in the hallway, put a gun to his neck, and demanded money again. Eatmon heard the gun click but the gun jammed and did not fire. Lopez became infuriated and punched and shoved Daniels backwards.

When Lopez discovered Eatmons safe was in her bedroom, he returned to Eatmons bedroom. Lopez ordered Eatmon to come with him. Tapping Eatmons forehead with the barrel of a gun, Lopez told Eatmon to open the safe. She told Lopez she could not do the combination to open it. He said, "Dont make me kill you" and demanded she open it or he would shoot her. Eatmon feared Lopez would shoot her if she did not open the safe.

Eatmon explained she had difficulty opening the safe because brain cancer impeded her ability to use the left side of her body. Lopez replied, "I know, Darling, but if you dont get that safe open and give me money, I am going to have to shoot you." Lopez said he wanted $200. He called it "a taxation."

Eatmon eventually opened the safe. Lopez found in the safe only $20 and half an ounce of marijuana. Lopez ordered Eatmon to come up with the rest of the $200 or he would shoot her.

Within seconds of Lopez taking the money and marijuana, Gonzalez came running down the hall, saying "La jura, fool, la jura," meaning "the police." Lopez and Gonzalez fled. As Lopez ran out of the house, he said, "If any one of you have called the cops, I am going to come back and kill everybody here."

After the police arrived, they took Eatmon to identify one of the suspects, whom she identified as Gonzalez.

Lopezs Trial Testimony

Lopez testified at trial that prior to the incident, Lopez got marijuana from the Eatmon family. He had lived on their street for about 12 years but no longer was living there. He used to go to the Eatmons a lot when he was living on their street. He was friends with the family. Lopez had also known Daniels for a couple of years before the incident. They were friends and Lopez also bought marijuana from him as well.

About five months before the incident, Lopez loaned Eatmon a .45-caliber Colt pistol. Eatmon gave him marijuana for letting her borrow the gun. Lopez was not supposed to have a gun because he was on parole for a burglary conviction and petty theft with a prior offense.

A couple of days before June 24, 2004, Lopez learned that Daniels had stolen Lopezs truck stereo and tried to sell it. Lopez confronted Daniels about the theft at Eatmons house. Daniels denied taking the stereo. While arguing, Lopez pushed down Daniels by the neck, took some marijuana that he thought belonged to Daniels, and said the marijuana was partial payment for the stereo. Later, he discovered it was Eatmons marijuana.

The day before the incident, Lopez went to his sisters house a little before midnight and found Gonzalez there. Lopez had never met Gonzalez before. Lopez wanted to beat up Gonzalez because Lopez did not want his sister, Sheila Lopez, having male guests while her husband was in prison. He told Gonzalez to either leave or sleep in the van. Lopez spent the night at his sisters house and Gonzalez slept in the van in the front yard.

The following morning, June 24, 2004, Lopez left with Gonzalez, whom Sheila had asked Lopez to take home. Lopez was still irritated at Gonzalez and did not like Gonzalez. They did not converse much. Lopez mentioned that he was going to stop and get some marijuana. Before dropping off Gonzalez, Lopez stopped at Eatmons home to pick up some marijuana and his gun. Lopez denied Gonzalez was with him for backup. Lopez was not worried about a confrontation because Daniels was a coward.

When Lopez arrived at Eatmons house, he got out of the van, approached Daniels, and told him he was not there for him. Rather, he had come for his gun. Gonzalez followed Daniels and Lopez into the house. Lopez did not have a gun when he went into the house. Lopez claimed he never had a gun there. Lopez denied forcing Daniels into the house with a gun or pointing a gun at him. Lopez denied having a gun wrapped with a towel.

Lopez assumed Eatmon knew she had his gun and would return it to him. Lopez told Daniels to get Lopezs gun from Eatmon and followed behind Daniels through Eatmons house to Eatmons bedroom. Lopez did not use any force or a gun.

When Lopez entered Eatmons bedroom, Eatmon was pointing a gun at him. Eatmon screamed at Lopez, asking him why he stole her marijuana. Lopez told Eatmon to put down the gun and denied stealing her marijuana. Lopez stood behind Daniels. Daniels told her to give Lopez his gun. Eatmon threw it on her bed. Lopez picked it up, popped out the clip, and ejected the round. Lopez commented that there were hollow points in his gun but was not upset about it. He was upset about Eatmon having pointed the gun at him with a round in the chamber. Eatmon was crying and started to leave the room.

Lopez yelled at Daniels because Lopez thought Daniels had set him up by taking him to Eatmons bedroom, with Eatmon pointing a gun at him as he entered the bedroom.

After Lopez retrieved his gun, Eatmon said, "Dont shoot nobody." Lopez yelled at Daniels and hit him in the jaw two or three times. Lopez told Daniels, "Better get my stereo back." Meanwhile Eatmon left the bedroom.

Lopez heard Eatmon crying outside on the back patio. He went out there by himself with his gun in his pocket. Jennifer was with Eatmon. Eatmon was hysterical, asking him why he had stolen her marijuana. He told her he had not taken it. They all went back inside to Eatmons bedroom. Eatmon continued asking Lopez why he had taken her marijuana a couple of days before. Lopez had thought it was Danielss marijuana. Lopez told Eatmon he would pay for it.

After Lopez and Eatmon returned to Eatmons room, Lopez heard someone say "jura" (police). Lopez ran outside, jumped the back fence, and went to his friends house. He fled because the police had arrived and he was a parolee-at-large and was not supposed to have a gun. Lopez was arrested on June 30, 2004, after the police shot him while running from the police.

Lopez claimed that after defendants entered Eatmons house, he did not see Gonzalez during the entire incident. Lopez later testified he saw Gonzalez only once inside, when Gonzalez was sitting on the couch as Lopez was going outside to the patio. Gonzalez was still on the couch when Lopez walked back inside with Eatmon. Lopez also denied seeing or knowing there was a shotgun in the house. He denied giving Gonzalez a shotgun or telling Gonzalez to order Daniels out of Eatmons room. Lopez also claimed he did not hear or see Gonzalez ripping out any phone lines.

Lopez denied taking any money out of Eatmons safe.

Jennifer Eatmons Trial Testimony

Eatmons daughter-in-law, Jennifer Eatmon testified that during the morning of June 24, 2004, she heard yelling coming from the front of Eatmons house and heard Lopez say he wanted his gun back. She saw Gonzalez with Lopez. Jennifer rushed back to Eatmons bedroom and told her Lopez had come to get his gun. Jennifer then went to the kitchen.

Gonzalez came into the kitchen and asked for the phone. Jennifer told him the phones were all in the back of the house. After Gonzalez left the kitchen, Jennifer called the police. Jennifer heard the phone in the living room being removed from the wall and the snap of the phone cord as it was being pulled out of the wall.

Several times Gonzalez returned to the living room, looked out the front window, and then went back to Eatmons bedroom. At one point Eatmon and Jennifer went out to the patio and talked briefly. As they were going back inside, Lopez met them at the back door and told Eatmon to come with him. Eatmon and Lopez went back to her bedroom. Gonzalez returned to the living room and looked out the window. He yelled the police had arrived.

Jason Eatmons Testimony

Jason testified that on June 24, from inside Eatmons house, he observed defendants arrive. Defendants got out of a van. Lopez was holding a handgun partially covered with a towel. Defendants quickly approached Daniels, who was outside, and asked him, "Wheres the gun?" Lopez held a gun to Danielss neck and head and walked him toward the house. Gonzalez followed. Jason and Jennifer went to Eatmons bedroom and warned her that Lopez had arrived. Jason and his girlfriend, Ashley, then went to Jasons bedroom and locked the door. Later, Jason heard what sounded like phones being ripped off the walls and Eatmon begging for her life.

Sergeant Weaver and Deputy McQueeneys Testimony

Sergeant Weaver testified that he searched Eatmons home on June 24, 2004, and did not observe any phones ripped off the wall or any damaged telephone devices. He believed deputies found a shotgun in one of the back bedrooms.

Deputy McQueeney testified that officers found a shotgun and a green blanket in the living room. He interviewed Eatmon on June 24, 2004, and she told him Lopez had taken a handgun she had purchased from him for $400.

The Motel Incident (Count 5)

Juan Sanchezs Trial Testimony

Sanchez testified that during the afternoon and evening of June 19, 2004, he stayed at Motel 7 because he had been drinking that afternoon after work and did not want to go home and have his wife and children see him intoxicated. Between 4:00 and 5:00 p.m. he had drunk a six-pack of beer. Using his own car, Sanchez arrived at the motel at 5:00 p.m. He met two African-American women and an African-American man at the motel. He had never met them before. The three people went to Sanchezs room and drank and smoked cocaine and methamphetamine with Sanchez for an hour or two, until about 10:40 p.m.

Sanchez lent his car to the African-American man, Michael Wofford, because they had run out of drugs and Wofford said he was going to get more. One of the two women, Shebra Mitchell, who was Woffords girlfriend, went with him. The other woman stayed with Sanchez. Mitchell and Wofford never returned with Sanchezs car.

Later that evening, a Hispanic man knocked on Sanchezs motel room door. The woman who had stayed with Sanchez answered the door and let the man inside. The woman and man talked to each other in English for 10 or 15 minutes. Sanchez did not know what they were saying because he did not speak English. At trial, Sanchez identified Lopez as the Hispanic man. When Lopez and the woman stopped talking, Lopez told Sanchez that if Sanchez wanted his car back, Sanchez would have to give him $50. Sanchez did so. Lopez and the woman then left.

About an hour later, Lopez returned and told Sanchez to come with him to the bathroom. Sanchez thought Lopez was going to give him information about his car. When Sanchez went with Lopez into the bathroom, Lopez shut the door, pulled out a knife, and told Sanchez to give him his wallet, which contained about $300. With the knife, Lopez tore Sanchezs pants pocket containing Sanchezs wallet and grabbed the wallet. Lopez then beat up Sanchez and cut him with the knife from next to Sanchezs right eye down to his nostrils. Then Lopez fled with the woman. Ten minutes later the police arrived.

Sanchez lied to deputies that Wofford forcibly took his car keys because Sanchez did not want to tell the officers that he had loaned his car to Wofford so he could buy more drugs. Sanchez also did not initially tell Deputy Lewis that a Hispanic man was involved in the robbery.

Shebra Mitchells Testimony

Shebra Mitchell testified that on June 19, 2004, she and her boyfriend, Michael Wofford, were partying with Sanchez in a room at Motel 7. Mitchell, Wofford and Sanchez took drugs, drank, and socialized. There was no one else there. They partied for a couple of hours. Later in her testimony, Mitchell stated that there might have been another Black woman there.

Mitchell had met Sanchez once before. She recognized his car from the first time they had met. When she saw his car, she and Wofford found his motel room.

While partying, Wofford, who is bilingual, told Sanchez in Spanish that he was going to go pick up more drugs and needed to use Sanchezs car. He said he would be right back. Sanchez gave Wofford his car keys and Wofford and Mitchell left in Sanchezs car.

Later, around 8:00 or 9:00 p.m., Mitchell and Wofford went to meet Lopez, whom Mitchell had known for about a month. Mitchell and Wofford drove Lopez in Sanchezs car somewhere else to purchase drugs. While Mitchell, Wofford and Lopez were in the car, Lopez told Mitchell and Wofford that he had gone to Motel 7 and robbed Sanchez of $200 with a knife, in the bathroom. Mitchell saw Lopez hand Wofford money and heard Lopez say he was giving Wofford $200 for drugs.

After driving Lopez to purchase drugs, they dropped him off where they had picked him up. Mitchell and Wofford then left. This was the last time Mitchell saw Lopez until after Mitchell was arrested and she saw him in court.

Mitchell admitted she was high on cocaine the night of the motel incident. She was a drug addict.

The police stopped Wofford and Mitchell in Sanchezs car. Mitchell was driving. She pled guilty to theft of Sanchezs car. Mitchell claimed she and Wofford borrowed Sanchezs car, although they never returned it. Mitchell gave Sanchez some drugs and money in exchange for borrowing his car so Wofford could get some more drugs, but she and Wofford never returned with the drugs or the car. Mitchell kept the car for about three weeks. She was not present when Sanchez was robbed.

Wofford died in July 2005.

Deputy Lewiss Testimony

Deputy Lewis interviewed Sanchez right after the incident. Sanchez told Lewis he and some others had been taking drugs and partying at Motel 7, and then his car was stolen. One of the partiers stole Sanchezs wallet at knife-point, cut his face, and stole his car.

Sheriffs Detective Brian Mehlbrechs Testimony

Mehlbrech testified that in July 2004 he interviewed Mitchell in jail. Mitchell told him that she and Wofford partied with Sanchez at Motel 7 and then borrowed Sanchezs car but failed to return it. Later, around 10:00 p.m. that same evening she and Wofford met a person named Daniel, whom she identified in court as Daniel Lopez. She overheard Lopez telling Wofford that he had gone to Sanchezs motel room and had taken Sanchezs wallet and cut his face with a knife.

Lopezs Testimony

Lopez denied being at Motel 7 on June 19, 2004, and denied seeing Sanchez. He claimed the first time he met Mitchell was in court during their arraignment.

2. Joinder of the Motel Robbery Charge (Count 5)

Defendants contend the trial court erred in denying their motion to sever count 5 and try it separately from the remaining counts. Lopez further argues that the trial court erred in initially consolidating count 5 with the other charges. Defendants claim that even if there was no abuse of discretion in consolidating the cases and denying severance, joinder of count 5 resulted in gross unfairness amounting to a denial of due process because the joinder allowed the prosecution to bolster the weaker counts with the stronger counts, resulting in guilt by association.

A. Procedural Background

The district attorney originally filed an information jointly charging defendants with crimes arising from the incident at the Eatmons home (Eatmon case). Both defendants were charged with committing attempted murder of Daniels (count 1), robbing Eatmon (count 2), and theft of Eatmons gun (count 3). Lopez was also charged in count 4, for being a felon in possession of a gun.

A few days later, the district attorney filed a second information against Lopez for robbery at the Motel 7 (motel case). In the motel case, the district attorney charged Lopez with robbing Sanchez with a knife (count 5).

The prosecution filed a motion to consolidate the two cases on the ground they involved the same class of crime. The prosecution argued both cases involved robbery, use of a weapon, and the felonious taking of property. In addition, the prosecution claimed the evidence in the cases was cross-admissible under Evidence Code section 1101, subdivision (b).

At the hearing on the motion to consolidate, defense counsel for Lopez objected to consolidation but acknowledged that the two cases "are the same class of crimes" and "neither looks necessarily stronger than the other." Counsel added he might later move to sever should he find supporting case law. Defense counsel for Gonzalez also objected during the hearing, noting that Gonzalez was not charged with any crime in one of the cases.

About a month and a half after consolidation, Gonzalez filed a motion to sever the two cases. Lopez joined in the motion. Gonzalez stated in his motion that, although joinder of the charges was permissible because the charges were of the same class, joinder would severely prejudice Gonzalez and deprive him of his constitutional rights to a fair trial and due process. The People filed opposition. In May 2006, the trial court denied severance of the cases.

In August 2006, Lopez orally renewed his motion for severance of count 5 and Gonzalez filed another motion requesting severance of the counts unrelated to him. The trial court denied the motions, concluding that there would be no injustice in trying count 5 along with the other counts. The court further stated that it would give instructions addressing defendants concerns of possible guilt by association arising from jointly trying the two cases.

B. Applicable Law

Section 954 permits joinder of two or more offenses of the same class of crime: "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated." (§ 954.)

Offenses are of the same class of crime if they possess common characteristics or attributes. (People v. Kemp (1961) 55 Cal.2d 458, 476.) Here, both cases involved robbery, theft of money and personal property, and assault with a weapon.

"Even where the offenses are not in the same class, they may be joined if they contain `a common element of substantial importance in their commission. [Citation.] This is true even though the crimes do not relate to the same transaction and were committed at different times and places against different victims. [Citations.]" (Coleman v. Superior Court (1981) 116 Cal.App.3d 129, 135.) Here, the court joined two cases, one of which contained charges solely against Lopez for a crime unrelated to the crimes committed in the other case.

Section 954 also provides that the court may in its discretion order offenses in the same case tried separately if "in the interests of justice and for good cause shown . . . order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately." (§ 954.) The party seeking severance must show "`that joinder actually resulted in "gross unfairness," amounting to a denial of due process. [Citation.]" (People v. Ochoa (1998) 19 Cal.4th 353, 409.)

Because consolidation and joinder of charged offenses ordinarily promote efficiency, such courses of action are preferred by the law. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220 (Alcala).) In order to establish error in denying severance of count 5 from the remaining counts Gonzalez must make a clear showing of prejudice amounting to an abuse of discretion. (Ibid.) A prejudicial abuse of discretion exists if the ruling falls outside the bounds of reason. (Ibid.)

In assessing whether there has been an abuse of discretion in denying severance of charges, "we consider the record before the trial court when it made its ruling. [Citation.] `The factors to be considered are these: (1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case. [Citations.] `The states interest in joinder gives the court broader discretion in ruling on a motion for severance than it has in ruling on admissibility of evidence. [Citations.]" (Alcala, supra, 43 Cal.4th at p. 1221.)

(1) Cross-admissibility of Evidence in Separate Trials

While the trial court concluded there was no cross-admissibility of evidence, it appears this is not necessarily the case. And even if there was no cross-admissibility, the trial courts ruling denying severance of count 5 was not an abuse of discretion.

Gonzalez argues there was no cross-admissibility since the Eatmon incident and motel robbery were unrelated crimes and the motel robbery did not include any modus operandi which resembled the Eatmon incident. But even though the incidents were unrelated and occurred on different days, the manner in which Lopez committed the crimes at the motel and at the Eatmon residence was similar in part. During both incidents, Lopez separated the victims from others in the room by moving the victims to a nearby bathroom, closing the bathroom door so that there would not be any witnesses, and then at gunpoint or knifepoint demanding the victims give him money or tell him where to find it. Such evidence of common features showed a similar modus operandi or common design or plan.

Even assuming there was no cross-admissibility, "the complete absence of cross-admissibility does not, by itself, demonstrate prejudice from a failure to order a requested severance." (Alcala, supra, 43 Cal.4th at p. 1221.) The California Supreme Court has repeatedly found that "a trial courts denial of a motion to sever charged offenses to be a proper exercise of discretion even when the evidence underlying the charges would not have been cross-admissible in separate trials." (Ibid.; italics in original.) As noted by our high court in People v. Arias (1996) 13 Cal.4th 92, 126-127, "Joinder is generally proper when the offenses would be cross-admissible in separate trials, since an inference of prejudice is thus dispelled. [Citations.] However, joinder is often permissible even when cross-admissibility is not present."

(2) Inflammatory Facts

Gonzalez argues the second factor, inflammatory facts, also supports severance of count 5 from the other charges. Gonzalez asserts that the facts in the motel incident were inflammatory and prejudicial because they conveyed a sadistic, violent criminal image of Lopez. In the motel incident, Lopez took advantage of an intoxicated, unarmed victim, stole his money, beat him up, and sadistically slashed his face with a knife.

Lopez, on the other hand, argues the Eatmon case involved more egregious, inflammatory facts than the motel case because the Eatmon case involved a home invasion and attempted premeditated murder.

We conclude the facts in both cases were essentially equally egregious and inflammatory. In the Eatmon case, Lopez terrorized a terminally ill woman, Eatmon, and her caretaker, Daniels. Lopez held them at gunpoint and threatened to kill them. He beat up Daniels, who was unarmed, held a gun to Danielss head, and pulled the trigger. Fortunately, the gun jammed. Also at gunpoint, Lopez ordered Eatmon to open her safe and threatened to kill her.

In the motel incident, Lopez terrorized Sanchez, also a vulnerable victim who was intoxicated, unarmed, and unable to speak or comprehend English. Lopez robbed Sanchez at knifepoint, grabbing Sanchezs wallet and then sadistically slashing Sanchezs face with his knife.

Gonzalez argues that Sanchez was a far more sympathetic victim than Eatmon and Daniels. We disagree. While Eatmon admitted using and selling marijuana to friends, Eatmon testified she did so to cope with her cancer-induced pain. Eatmon was portrayed as a very sympathetic figure. While a jury might have also sympathized with Sanchez because Lopez mercilessly victimized him as well, the jury likely found him a less sympathetic victim because he was responsible to some extent for his predicament by becoming drunk, taking drugs, and partying with strangers at a motel.

Citing Calderon v. Superior Court (2001) 87 Cal.App.4th 933 (Calderon), Gonzalez argues that the motel incident facts were inflammatory because he was prejudicially associated with Lopez, who displayed a high degree of callousness, and thus Gonzalezs convictions were a result of guilt by association. Calderon is factually distinguishable. In Calderon, the trial court consolidated a case against the defendant and codefendant charged with attempted murder with a case solely against the codefendant for murder involving a separate incident. (Id. at p. 935.)

The Calderon court concluded the murder incident was highly inflammatory because it involved, not only a gratuitous shooting of one victim, but more significantly, the execution-style murder of the other victim. (Calderon, supra, 87 Cal.App.4th at p. 937.) The other consolidated case, in comparison, was not nearly as inflammatory. (Id. at p. 941.) The attempted murder incident arose from exchanged insults, with the implication of a challenge, resulting in the defendants shooting at the victims. (Id. at p. 936.)

Here, it is not likely that the jury would find the motel incident any more inflammatory than the Eatmon incident. Any possibility of guilt by Gonzalezs association with Lopez would already exist in the Eatmon case. Furthermore, unlike in Calderon, the trial court repeatedly instructed the jury not to consider the motel incident evidence in deciding count 5 against Lopez.

Lopez complains that, had count 5 not been tried with the other offenses, the jury would not have learned during the trial of the motel case of Lopezs prior criminality. Count 4, unlawful possession of a firearm by a convicted felon, would have been tried separately and prejudicial testimony revealing Lopezs criminal history and nickname, "Wicked," would not have been presented in the motel incident trial (count 5). Furthermore, defendant would not have testified in the motel case trial, and thus would not have been subjected to cross-examination and impeachment with prior convictions in the motel case.

While this evidence may not have been presented had count 5 been tried separately, this was not sufficiently prejudicial to constitute gross unfairness amounting to a denial of due process, particularly since the evidence presented in connection with the Eatmon charges was no more inflammatory overall than the evidence in the motel case, and there was overwhelming evidence in both cases implicating defendants.

E. Whether One Case Was Weaker Than the Other

As to the third factor, Gonzalez argues "[t]his factor requires only a brief discussion, because there is no such thing as a weaker case than one in which the prosecution concedes a party has no culpability." Gonzalez argues the motel case was obviously weaker because Gonzalez was not involved in the motel incident. Gonzalez notes that the prosecutor acknowledged that Gonzalez had nothing to do with the motel incident and that the motel incident was unrelated to the Eatmon incident.

Lopez argues the motel incident evidence was significantly weaker than the evidence in the Eatmon case. In the Eatmon incident, the victims and witnesses knew Lopez and lived in the same neighborhood as Lopez. The motel case, on the other hand, was an identity case involving perpetrators whom Sanchez did not know.

Even though Gonzalez was not charged in the motel incident, this does not necessarily require a finding the case was weaker. For instance, in Calderon, the court concluded the attempted murder case against the defendant and codefendant was weaker than the case that was solely against the codefendant. The Calderon court compared the attempted murder case against both defendants with the murder case solely against the codefendant and concluded such circumstances supported severing the two cases because of the strength of the murder case evidence against the codefendant.

Here, both cases were equally strong. In the Eatmon case, there was substantial evidence that Gonzalez actively participated with Lopez in the attempted murder, robbery and firearm theft offenses either directly or as an aider and abettor. Such compelling evidence included testimony by Daniels, Eatmon, Jason, and Jennifer. Although Gonzalez was not involved in the motel incident, the case was equally strong against Lopez based on testimony by Sanchez and Mitchell. This is not a case like Calderon in which a strong case, involving far more heinous conduct against a codefendant, was joined and tried with a weak case. (Calderon, supra, 87 Cal.App.4th at p. 941.)

It therefore is not likely that joining count 5 with the Eatmon charges unfairly altered the outcome of the other charges against defendants. (Alcala, supra, 43 Cal.4th at p. 1227.) We thus conclude the trial court did not commit prejudicial error by consolidating the Eatmon and motel cases and denying severance of count 5.

3. Admissibility of Eatmons Pretrial Statements to Defense Investigator Railsback

Gonzalez contends the trial court erred in refusing to admit Eatmons pretrial statements made to defense investigator Joe Railsback. We disagree.

A. Background Facts

During the trial, Gonzalezs attorney sought to introduce testimony by defense investigator Joe Railsback, regarding statements Eatmon had made to Railsback on March 1, 2005, after her preliminary hearing on December 20 and 21, 2004. Railsback did not record the telephonic interview, even though it was known that Eatmon had terminal brain cancer. Eatmon died a month later. Railsback summarized the interview in a report dated March 2, 2005, containing about a page of information. The report did not contain Eatmons exact words.

Gonzalezs attorney argued Eatmons statements to Railsback were admissible to show her state of mind and to rehabilitate her preliminary hearing testimony as to any inaccuracies or inconsistencies. The prosecutor objected to the evidence on the grounds the evidence constituted hearsay and inadmissible speculation. Lopezs attorney agreed with the prosecutions objections.

After reviewing Railsbacks report, the trial court ruled that Railsback could not testify to most of Eatmons statements summarized in Railsbacks report on the grounds such testimony would constitute inadmissible hearsay and speculation as to Gonzalezs state of mind and personal opinion. The court also excluded Eatmons statement that Lopez was a gang member on the ground it constituted hearsay and there was no opportunity to cross-examine Eatmon on the matter. The court further ruled that Railsback could testify only as to Eatmons factual statements relating to her prior knowledge of Gonzalez; that defendants arrived together at her home on June 24; that she attempted to pick up a lead pipe to hit Lopez; and Gonzalez told her to put it down and not let Lopez see it.

In response to the ruling, Gonzalezs attorney stated that he would not elicit testimony from Railsback concerning Railsbacks telephone conversation with Eatmon.

On appeal Gonzalez argues that the trial court erred in excluding Eatmons statements summarized in paragraphs 5 and 6 of Railsbacks report. In paragraph 5, Railsback reports that Eatmon stated she believed Gonzalez participated with Lopez in the incident because Gonzalez felt threatened by Lopez. Gonzalez only did what Lopez told him to do. Eatmon believed Gonzalez may have had a machete in his pants but she never saw Gonzalez with any weapon. She believed Gonzalez did not want to be at Eatmons home or involved in the incident. Gonzalez acted as if he were afraid of Lopez.

The trial court ruled that "[t]he fifth paragraph, which deals with her interpretation of events and her speculation about the motivation of Mr. Gonzalez, is inadmissible. It would probably be inadmissible were she alive and asked to testify about it. She could testify as to what she observed but not her speculation as to his motivation or mental state."

In paragraph 6, Railsback reported that Eatmon told him that she had a hidden lead pipe she was going to grab and use to hit Lopez. Gonzalez told her not to let Lopez see it because, if he did, he would hurt her. Eatmon told Railsback she believed Gonzalez was protecting her.

The trial court ruled that this paragraph "is probably admissible. The last sentence of that, that she interpreted that as his attempt to protect her, would be not admissible."

B. Lay Witness Opinion Evidence

Citing People v. Hinton (2006) 37 Cal.4th 839, 889 (Hinton) and Evidence Code section 800, Gonzalez argues that Eatmons statements in paragraph 5 of Railsbacks report constituted admissible lay opinion relevant to establish that Gonzalez and Lopez were not friends and Gonzalez did not want to participate in the crime but did so because he feared Lopez.

Evidence Code section 800 allows a lay witness to testify to opinion that is "(a) Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear understanding of his testimony." (Evid. Code, § 800.) The court in Hinton explained that "A lay witness may express an opinion based on his or her perception, but only where helpful to a clear understanding of the witnesss testimony (Evid. Code, § 800, subd. (b)), `i.e., where the concrete observations on which the opinion is based cannot otherwise be conveyed. [Citation.]" (Hinton, supra, 37 Cal.4th at p. 889.)

The instant case does not involve circumstances in which Eatmons speculative opinion concerning Gonzalezs relationship with Lopez and motivation for his participation in the crimes was necessary. Concrete observations on which such an opinion was based could have been conveyed. By the time of trial, it was simply too late to obtain from Eatmon the facts upon which she based her opinions because Eatmon had died. The trial court appropriately excluded Eatmons speculative opinion testimony since there were no foundational facts presented as to the basis for Eatmons opinions and it was not possible to cross-examine her at trial as to the basis for her opinions.

Furthermore, even assuming the statements concerning Gonzalezs relationship with Lopez were relevant and admissible, it is not reasonably probable Gonzalez would have obtained a more favorable outcome had the statements been permitted. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)

C. State of Mind Evidence

Gonzalez argues that Eatmons statements were also admissible under Evidence Code section 1251 as circumstantial evidence of Eatmons state of mind. We disagree.

When a witness is unavailable, evidence of a statement by that witness of the declarants state of mind is admissible if "[t]he evidence is offered to prove such prior state of mind, emotion, or physical sensation when it is itself an issue in the action and the evidence is not offered to prove any fact other than such state of mind, emotion, or physical sensation." (Evid. Code, § 1251, subd. (b).)

Eatmons excluded statements were inadmissible under Evidence Code section 1251 because they primarily consisted of statements by Eatmon speculating as to Gonzalezs state of mind, not her own. The trial court appropriately permitted Railsback to testify as to Eatmons statements of her observations, but excluded statements concerning her beliefs as to what Gonzalez was thinking and his motivation for his conduct.

Gonzalez argues that Eatmons statements reflected her own state of mind during the robberies. Gonzalez claims the statements in paragraph 6 of Railsbacks report indicated that Eatmon was not afraid of Gonzalez during the robbery. This was relevant to the robbery charge (count 2) in that it refuted that Gonzalez used force or fear during the robbery.

But the excluded statements were not relevant. While Eatmon may have thought Gonzalez was protecting her when he told her not to let Lopez see the lead pipe, this did not establish her state of mind when Lopez, whom Gonzalez was aiding and abetting, took her gun and property from her safe.

Furthermore, Eatmons statements were inadmissible under Evidence Code section 1252, due to a lack of trustworthiness. Admissibility of statements of an unavailable declarants previously existing state of mind under Evidence Code section 1251, is subject to Evidence Code section 1252, which provides: "Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness." As the trial court noted, even though it was known at the time of Railsbacks telephone interview of Eatmon that she was dying of brain cancer, Railsback did not record Eatmons statements and his report did not contain Eatmons actual statements. Thus the accuracy of any representation as to what Eatmon actually said was questionable. Accordingly, the court did not abuse its discretion in excluding Eatmons statements to Railsback.

Even if Eatmons statements that she believed Gonzalez was trying to protect her were admissible to show she was not fearful of Gonzalez, exclusion of the statements was harmless error since there was ample evidence Gonzalez aided and abetted Lopez in committing the robbery and Eatmon was afraid of Lopez. It is not reasonably probable that allowing such statements would have resulted in a more favorable outcome since there was substantial evidence supporting defendants convictions. (Watson, supra, 46 Cal.2d at pp. 835-836; People v. Alvarez (1996) 14 Cal.4th 155, 216.)

4. Pinpoint Instruction on the Natural and Probable Consequences Doctrine

Gonzalez contends that the trial court erred in giving the jury instruction CALCRIM No. 402, as modified, on the natural and probable consequences doctrine. The court modified CALCRIM No. 402 by adding a reference to the presence of firearms. Gonzalez argues this modification unfairly directed the jury to consider the prosecutions evidence and advocated that the presence of firearms supported a finding that Gonzalez was vicariously liable for attempted murder (count 1) as a natural and probable consequence of the robbery and stealing Eatmons gun.

Upon request, a party is entitled "to a nonargumentative instruction that pinpoints his or her theory of the case. [Citation.] An instruction that directs the jury to `"consider" certain evidence is properly refused as argumentative. [Citation.] `In a proper instruction, "[w]hat is pinpointed is not specific evidence as such, but the theory of the [partys] case." [Citations.]" (People v. Ledesma (2006) 39 Cal.4th 641, 720 (Ledesma).)

Gonzalez argues he did not forfeit his objection by not raising it in the lower court because the improper instruction affected his substantial rights to due process and a fair trial. (§ 1259.) As Gonzalez asserts, an appellate court may review "any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby." (§ 1259.) Because Gonzalezs instruction challenge concerns deprivation of rights to a fair trial and due process, we will address his objection on the merits.

While the court may give a pinpoint instruction on a theory of the case, the court cannot give a pinpoint instruction highlighting evidence in the case. Giving a pinpoint instruction highlighting evidence is improper because it is argumentative and one-sided. (Ledesma, supra, 39 Cal.4th at p. 720.)

Here, the courts modification of CALCRIM No. 402, adding reference to the presence of firearms as a basis for finding that attempted murder was a natural and probable consequence of committing the robbery, was improper because the instruction directed the jury to consider certain evidence. Nevertheless, this was by no means prejudicial error since there was overwhelming evidence of the presence of guns and Lopezs possession and use of guns during the commission of the crimes. The jury was also given several jury instructions mentioning firearms and defendants charges and enhancements referred to the presence of guns.

Since the presence of guns was inextricably intertwined with the charges against defendants and there was overwhelming evidence of the presence of guns during the commission of the attempted murder offense, the brief single reference to the presence of firearms in CALCRIM No. 402, as modified, constitutes harmless error under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), as well as Watson, supra, 46 Cal.2d at pp. 835-836.)

5. Count 3 Is a Lesser Included Offense of Count 2

Gonzalez contends that count 3, grand theft of a firearm from Eatmon (§ 487, subd. (d)(2)), is a lesser included offense of count 2, residential robbery of Rachel Eatmon (§ 212.5, subd. (a)). Gonzalez argues that because the jury instructions and the prosecutors argument stated that the possible discrete acts for committing robbery included theft of "money, firearms and/or marijuana," and count 3 was also for theft of a firearm, Gonzalezs conviction for count 3 was duplicative of his conviction for count 2. It was possible that the jury convicted Gonzalez in both counts based on theft of the same gun. Therefore defendants count 3 conviction must be reversed. The People concede this error.

It is well established that multiple convictions may not be based on necessarily included offenses. (People v. Ortega (1998) 19 Cal.4th 686, 692, citing People v. Pearson (1986) 42 Cal.3d 351, 355.) If the jury finds a defendant guilty of both the greater and the lesser offense, and "the evidence supports the verdict as to [the] greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed." (People v. Moran (1970) 1 Cal.3d 755, 763; People v. Cole (1982) 31 Cal.3d 568, 582.)

Because the jury could have convicted defendants in count 3 of theft of the same property that formed the basis of the robbery conviction (count 2), count 3 constitutes a lesser included offense of the robbery and must be reversed. (People v. Moran, supra, 1 Cal.3d at p. 763; People v. Cole, supra, 31 Cal.3d at p. 582.)

6. Claim-of-Right Instruction

Although defendants count 3 conviction must be stricken because it is a lesser included offense of count 2, robbery, we nevertheless address defendants claim-of-right contention because defendants argue it not only requires reversal of count 3, but also counts 1 and 2, which defendants argue are premised on the conviction for theft of the gun.

Defendants filed supplemental appellate briefs arguing that the trial court failed to instruct sua sponte on their claim-of-right defense to the theft of the gun and robbery charges relating to the Eatmon incident (counts 2 and 3). Defendants claim there was substantial evidence supporting their claim-of-right defense. Lopez testified he believed he was retrieving his gun from Eatmon, who borrowed it from him for several months. In addition, several witnesses testified that immediately upon defendants arrival at Eatmons home, Lopez demanded the return of his gun, indicating he believed he owned the gun.

Also, the prosecutor acknowledged during closing argument that the jury might "have some questions as to whether it was really Rachels gun, . . ." as opposed to Lopezs gun. The prosecutor went on to argue that Eatmon did not borrow the gun; she purchased it from Lopez. The prosecutor further stated that "even if you believe that the gun somehow was Mr. Lopez, you still have a robbery, because he took $20, and he took the marijuana from the safe. Thats property that clearly was not his."

Defendants contend the trial court had a sua sponte duty to instruct the jury on the claim-of-right defense. We disagree.

"`[E]ven in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jurys understanding of the case. [Citations.]" (People v. Whitehurst (1992) 9 Cal.App.4th 1045, 1049.) The trial court "is further obligated to instruct on defenses if it appears the defendant is relying on the defense or if there is substantial evidence to support the defense and it is not inconsistent with defendants theory of the case." (Ibid.; see also People v. Stewart (1976) 16 Cal.3d 133, 140 (Stewart).)

A. Applicable Law

Gonzalez and Lopezs theory of the case, as presented based on Lopezs testimony, was that he believed Eatmon had merely borrowed the gun from him and, since it belonged to him, he was entitled to take it back.

A mistake-of-fact or claim-of-right defense to theft may be established based on a defendants good faith belief the property in question is not stolen, regardless of whether the belief is reasonable. (People v. Tufunga (1999) 21 Cal.4th 935, 943, 954, fn. 5 (Tufunga); People v. Romo (1990) 220 Cal.App.3d 514, 518-519 (Romo); People v. Navarro (1979) 99 Cal.App.3d Supp. 1, 10-11.) In other words, the defendant must have an actual belief he has a bona fide right to the property. (Romo, supra, 220 Cal.App.3d at p. 518.)

Instruction on the claim-of-right defense is not required "unless there is evidence to support an inference that [defendant] acted with a subjective belief he or she had a lawful claim on the property." (Romo, supra, 220 Cal.App.3d at p. 519.) "Whether or not a given set of facts provides the necessary support for drawing a particular inference is a question of law." (Ibid.) In evaluating the evidence to determine whether an instruction should be given, the trial court should not measure its substantiality by weighing the credibility of witnesses. (People v. Barnett (1998) 17 Cal.4th 1044, 1145.) It is not necessary for the trial court to give an instruction if the supporting evidence is minimal and insubstantial. (Ibid.) "Doubts as to the sufficiency of the evidence should be resolved in the accuseds favor." (Ibid.)

B. Discussion

Applying the above principles to the instant case, we conclude that the trial court was not obligated to give, sua sponte, an instruction on the claim-of-right theory, such as CALCRIM No. 1863.

Defendants reliance on the claim-of-right defense was made clear to the trial court. Lopez testified and defense counsel argued that Lopez believed he owned the gun but had lent it to Eatmon and therefore was entitled to take it back. "Thus, the asserted defense was a principle `closely and openly connected with the facts before the court within the meaning of People v. St. Martin [(1970) 1 Cal.3d 524], and People v. Sedeno [(1974) 10 Cal.3d 703], in which event defendant was entitled to have the question presented to and determined by the jury." (Stewart, supra, 16 Cal.3d at page 140.)

The People argue that the claim-of-right was not required because Lopezs claimed right to the gun was rooted in a "notoriously illegal" transaction. (People v. Barnett, supra, 17 Cal.4th at p. 1145.) It was illegal for Lopez, as a convicted felon, to possess a firearm, and if he lent the gun to Eatmon, he engaged in an illegal activity. Lopez therefore did not have a good faith belief he was entitled to arm himself and, at gunpoint, order Eatmon to return the gun he claimed he lent her.

We agree. In People v. Barnett, supra, 17 Cal.4th at page 1146, the court held that instruction on the claim of right defense was improper under circumstances in which the defendant took a victims property at gunpoint, believing the victim was in debt to the defendant. The Barnett court reasoned that, "given the obvious public policy reasons for strictly circumscribing the circumstances under which persons should be permitted to enforce their debt demands at gunpoint [citations], we conclude the defense is not available where the claimed debt is uncertain and subject to dispute." (Ibid.)

Likewise, here, the defense is not available where Lopez took Eatmons gun at gunpoint and defendants ownership of the gun was subject to dispute. Furthermore, at the time of the charged offenses, defendants possession of the gun was unlawful because, as a felon, he could not lawfully possess the gun under section 12021, subdivision (a)(1). There thus was insufficient evidence that defendant had a good faith belief that he had a lawful right to take the gun. Accordingly, the trial court was not required to instruct on the claim of right defense.

7. Consecutive Sentencing on Count 2

Gonzalez asserts that under section 654 the trial court erred in imposing a sentence on count 2 (robbery) consecutive to his sentence on count 1 (attempted murder). Citing People v. Bradley (2003) 111 Cal.App.4th 765 (Bradley), he argues that his sentence on count 2 should be stayed because the robbery and attempted murder crimes arose from the same objective of robbing Eatmon. Gonzalezs attempted murder conviction is based on the theory he aided and abetted Lopez in robbing Eatmon, and the attempted murder offense was a natural and probable consequence of the robbery.

A. Applicable Law

Section 654, subdivision (a), provides in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Section 654 precludes multiple punishments not only for a single act, but for an indivisible course of conduct. (People v. Hester (2000) 22 Cal.4th 290, 294.)

Whether a course of conduct is indivisible for purposes of section 654 depends on the intent and objective of the actor. If all the offenses are incidental to one objective, the defendant may be punished for any one of them, but not for more than one. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were part of an otherwise indivisible course of conduct. (People v. Centers (1999) 73 Cal.App.4th 84, 98.) The principal inquiry in each case is whether the defendants criminal intent and objective were single or multiple. (People v. Beamon (1973) 8 Cal.3d 625, 636-639.)

Trial courts are given broad latitude in determining whether section 654 is factually applicable to a given series of offenses. An appellate court must uphold a trial courts decision if its findings on this question are supported by substantial evidence. (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1408.) "We must `view the evidence in a light most favorable to the respondent and presume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [Citation.]" (People v. McGuire (1993) 14 Cal.App.4th 687, 698.)

B. Discussion

While the robbery and attempted murder offenses arise out of the same course of conduct, consecutive sentencing was proper because counts 1 and 2 involved different victims. Accordingly, the trial court properly imposed a consecutive sentence on count 2.

The circumstances in Bradley, supra, 111 Cal.App.4th 765, are similar to those in the instant case, with the exception the victim of the robbery and attempted murder offenses was the same person in Bradley and the defendant was not involved in or present during the attempted murder. In Bradley, the court concluded that under section 654, consecutive sentencing on the two offenses was improper because the defendant personally entertained a single criminal objective. (Id. at p. 767.)

In Bradley, supra, 111 Cal.App.4th 765, the defendant, a young woman, participated in a scheme with several cohorts to rob the victim and leave him in the trunk of his car. The defendant singled out the intoxicated victim at a casino and persuaded him to go with her in the victims car to a party. The defendant drove the victims car and eventually pulled over and stopped. The defendants cohorts who had been following entered the car and, at gunpoint, ordered the victim to give them his jewelry and money. The victim did so but then resisted climbing into the car trunk. (Id. at p. 768.) In response, one of the robbers beat the victim with a gun and shot him several times in the chest. The robbers then fled.

The same issue raised in the instant case was addressed in Bradley, supra, 111 Cal.App.4th at p. 768: "May a court impose consecutive sentences on an aider and abettor for two offenses arising out of a single criminal transaction where the aider and abettor only intended one of those offenses and her liability for the second depends upon it being a `natural and probable consequence of the first?" The court in Bradley concluded the defendant had only one objective: to aid and abet the robbery of the victim. The court explained that the defendant was sitting in another car waiting to leave and was unaware the attempted murder was occurring until after it was completed. She thus did not have the opportunity to prevent or protest its commission. (Id. at p. 771.)

These circumstances differ from those in the instant case. Here there was evidence Gonzalez was present and was assisting Lopez when Lopez attempted to shoot Daniels. In addition, in the instant case the robbery victim, Eatmon, differed from that attempted murder victim, Daniels. Gonzalezs culpability was greater than that of the defendant in Bradley because Gonzalez was involved not only in robbing Eatmon, but also was present and assisting Lopez when Lopez attempted to shoot Daniels. Because there were multiple victims involved and Gonzalez assisted Lopez in committing offenses against both victims, we affirm Gonzalezs consecutive sentence on count 2.

8. Admissibility of Eatmons Preliminary Hearing Testimony

Lopez contends the trial court deprived him of his constitutional rights to confrontation and due process by allowing the prosecutor to play for the jury a video-taped recording of Eatmons preliminary hearing testimony. Eatmon died from cancer before the trial.

Defendants moved in limine to exclude Eatmons preliminary hearing testimony on the ground defendants could not cross-examine Eatmon at trial as to her use of marijuana and medication and had not had a sufficient opportunity to cross-examine her during the preliminary hearing. Defendants further argued that even if Eatmons preliminary hearing testimony was permitted, unduly prejudicial portions of her testimony should have been redacted, particularly references to Lopezs nickname, "Wicked," and statements that Lopez was "wanted" and on the run from the police at the time of the charged crimes.

The trial court denied defendants motion to exclude Eatmons videotaped preliminary hearing testimony, finding that defendants had a sufficient opportunity to cross-examine Eatmon during the preliminary hearing. The trial court, however, ordered redaction of those portions of the videotape which showed defendants in shackles and jail garb.

In order to redact the videotape, the sound recording had to be separated from the video. The court instructed the jury that the video and audio would not be entirely simultaneous. The redacted video and audio recordings were played for the jury fairly simultaneously. The jury was given a redacted transcript of the testimony to follow while watching the video recording.

After the video and audio recordings were played for the jury, the prosecutor noted out of the presence of the jury that, while he was fast-forwarding the video, there was a brief instance in which defendants were shown in custody, wearing their orange jail garb.

In response, Lopezs attorney deferred to and joined in Gonzalezs attorneys renewed objections to the video and audio recordings. Gonzalezs attorney requested the court to strike Eatmons recorded testimony on the grounds the video and audio tapes were not synchronized, thereby preventing the jury from meaningfully assessing Eatmons demeanor and credibility.

Noting that the video and audio recordings were about 30 seconds out-of-sync, the trial court agreed the video was useless. The court, however, denied defendants motion to strike Eatmons testimony and admitted the audio tape and transcript into evidence. The court further stated he would reconsider his ruling regarding the videotape if the prosecution provided a synchronized video and audio recording. The court then instructed the jury that because the video and audio tapes were not synchronized, the video was not helpful in judging the witnesss demeanor and therefore it was being excluded from evidence, but if the prosecution provided a synchronized video and audio recording, the court would consider admitting it into evidence.

During the final jury instructions, the court informed the jury that the prosecution had provided a new video which was synchronized with the audio tape which would be admitted into evidence. The jury could view it if the jury wished to. During deliberations, the jury requested a tape recorder but not a videotape player, indicating the jury chose not to view the video.

A. Applicable Law

In Crawford v. Washington (2004) 541 U.S. 36, 59, the Supreme Court held that out-of-court testimonial statements must be excluded under the confrontation clause of the United States Constitution unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the declarant. (Id. at pp. 59, 68.)

As the California Supreme Court explained in People v. Wilson (2005) 36 Cal.4th 309, 340, "A criminal defendant has the right under both the federal and state Constitutions to confront the witnesses against him. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) This right, however, is not absolute. The high court recently reaffirmed the long-standing exception that `[t]estimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine. [Citations.] Evidence Code section 1291 codifies this traditional exception. [Citation.] When the requirements of Evidence Code section 1291 are met, `admitting former testimony in evidence does not violate a defendants right of confrontation under the federal Constitution. [Citations.] [Citation.]"

B. Discussion

Knowing that Eatmon was dying of brain cancer and anticipating that Eatmon would die before the trial, the court and parties arranged to have Eatmons testimony at the preliminary hearing videotaped. Defendants interest in cross-examining Eatmon was the same as that existing at the time of trial, particularly since the parties knew Eatmon was dying and quite likely her preliminary hearing testimony would be used at trial. It is apparent from the record that defendants had a full and fair opportunity to fully cross-examine Eatmon during the preliminary hearing.

As the California Supreme Court noted in People v. Carter (2005) 36 Cal.4th 1114, "`as long as a defendant was provided the opportunity for cross-examination, the admission of preliminary hearing testimony under Evidence Code section 1291 does not offend the confrontation clause of the federal Constitution simply because the defendant did not conduct a particular form of cross-examination that in hindsight might have been more effective." (Id. at pp. 1173-1174, quoting People v. Samayoa (1997) 15 Cal.4th 795, 851.)

Lopez complains that he did not have an opportunity fully to cross-examine Eatmon because, during the preliminary hearing, the defense was not allowed to cross-examine Eatmon in detail concerning her use of marijuana and prescription medication. Lopez claims cross-examination was restricted due to (1) Eatmon asserting her Fifth Amendment privilege when asked about her source of marijuana; (2) the court sustaining the prosecutors relevance objection to defense counsels inquiry as to the identity of Eatmons friends with whom she shared marijuana; and (3) the court precluding defense counsel from asking questions about Eatmons physician and her discussions with her doctor about using marijuana in combination with other prescription medications.

Lopez argues that due to these restrictions on the defenses cross-examination of Eatmon, Lopez was deprived of the opportunity fully and effectively to cross-examine Eatmon regarding her drug use and its effect on her perception and ability to recall. In addition, the out-of-sync video was useless. Therefore the jury was deprived of a meaningful opportunity to assess Eatmons demeanor and credibility.

We conclude the cross-examination restrictions were appropriate and did not violate Lopezs confrontation rights under Crawford. The source of Eatmons marijuana and identity of those with whom Eatmon shared marijuana, other than those directly involved in the incident, were irrelevant facts.

As to questioning Eatmon concerning her physician and discussions with her doctor about using marijuana in conjunction with other medication, Lopezs attorney questioned Eatmon extensively concerning her use of marijuana and other medications, and their effects on her perceptions. Lopezs attorney elicited testimony as to the names and amounts of all the other medications she was taking. During cross-examination, defense counsel also elicited testimony from Eatmon that others purchased marijuana from Eatmon, including Lopez and his sister. Eatmon admitted she sold marijuana to pay for her medication and use of marijuana. In addition, there was trial testimony from Daniels conceding he assisted Eatmon in selling marijuana and from an expert witness who testified at trial about the effects of marijuana and the medication Eatmon was taking on her perception and memory.

We also reject Lopezs contention that, because the video and audio recordings were not synchronized, the jury was deprived of being able to judge Eatmons demeanor upon the stand and manner in which she testified. The jury heard the audio recording, was given a transcript to following the recording, and was informed later in the trial that a new synchronized video and audio recording was available for viewing during deliberations. Defense counsel apparently did not insist the jury watch the new synchronized recording and the jury chose not to watch it during deliberations.

Under such circumstances, there was no prejudicial error in admitting into evidence Eatmons redacted preliminary hearing testimony under Crawford or Evidence Code section 1291.

With regard to the videotape showing defendants in jail garb, this occurred inadvertently and the viewing was extremely brief. Also, the jury was told pursuant to stipulation by the parties that Lopez had a prior felony conviction, and during Lopezs trial testimony, Lopez testified that when he was arrested for the charged crimes, he was fleeing from law enforcement as a parolee-at-large. Lopez also testified to six other prior convictions. The jurys inadvertent, fleeting glimpse of defendants in orange jail garb while the first videotape was being fast-forwarded was harmless error under both Chapman, supra, 386 U.S. at page 24 and Watson, supra, 46 Cal.2d at page 836.

9. Testimony Mentioning Lopezs Nickname and

Being on the Run from the Police

During Eatmons preliminary hearing testimony, she made several references to Lopez by his nickname, "Wicked." When asked if she saw Lopez on a daily or weekly basis, Eatmon testified that Lopez periodically visited her every couple of months and would not stay long "because he was wanted and he was running from the police." Eatmon also testified that when defendants arrived at her home, Jennifer said, "Wicked is here and he wants the gun." Eatmon referred to Lopez during her testimony several times thereafter by the name of Wicked, apparently because she was accustomed to using his nickname.

During Deputies Elliott and McQueeneys testimony, they also referred to Lopez several times as "Wicked." Deputy Elliott testified Jason Eatmon said he heard "Wicked" say "dont run." Elliott stated "Wicked" in the context of quoting what he heard Jason say. Deputy McQueeney also mentioned Lopezs nickname in the context of testifying as to what Rachel Eatmon had told him: "She said that a gentleman by the name of Wicked — thats how she knew him — had come to her residence." Deputy McQueeney also testified that during his interview of Daniels, Daniels said he knew one of the perpetrators of the Eatmon crimes and that he knew that person only by his nickname of "Wicked."

Lopez asserts that allowing the jury to learn of his nickname and that he was on the run from the police should have been redacted under Evidence Code section 352 because the statements were irrelevant, highly inflammatory, and conveyed the sense that Lopez was an evil, vicious criminal who was guilty merely because of his bad character.

The trial court has "wide discretion in determining the admissibility of evidence. Its exercise of discretion under Evidence Code section 352 will not be disturbed on appeal absent a clear abuse, i.e., unless the prejudicial effect of the evidence clearly outweighs it probative value. [Citation.]" (People v. Karis (1988) 46 Cal.3d 612, 637.) "The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. `[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendants case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying [Evidence Code] section 352, "prejudicial" is not synonymous with "damaging." [Citation.]" (Id. at p. 638.)

In People v. Brown (2003) 31 Cal.4th 518 (Brown), the Supreme Court held it was not prejudicial error under Evidence Code section 352 to permit the prosecutor to elicit from witnesses, and to use in examination, the defendants nickname "Bam" or "Bam Bam." (Brown, supra, 31 Cal.4th at pp. 548-551.) Even if any error occurred, it was not prejudicial under Watson, supra, 46 Cal.2d at page 836. (Brown, supra, 31 Cal.4th at p. 551.)

Likewise, here, it was not prejudicial error under Evidence Code section 352 to permit witnesses to mention Lopezs nickname, "Wicked." (Brown, supra, 31 Cal.4th at pp. 548-551.) The witnesses knew defendant by that name and commonly used his nickname instead of his actual name. There "was no gratuitous use of, or reference to, the nickname." (Id. at p. 551.) In some instances, reference to Lopezs nickname was necessary to render a witnesss testimony understandable. (Ibid.) In several instances, testifying witnesses merely repeated what was said to them, which included others identifying Lopez by his nickname. While in the Eatmon case Lopezs identity was not at issue, as was the case in Brown, testimony referring to Lopezs nickname showed the witnesses familiarity with defendant and hence established their credibility.

Even if there was error due to the nickname having negative connotations, it was not prejudicial under Watson, supra, 46 Cal.2d at page 836, or even under Chapman, supra, 386 U.S. at page 24. Because this issue concerns the mere admission of evidence that was not particularly inflammatory, we reject defendants contention that admission of his nickname constituted prejudicial error. (Brown, supra, 31 Cal.4th at p. 551.)

With regard to the trial court not redacting Eatmons brief comment that Lopez had been on the run from the police, assuming this was error, such error was also harmless under Watson, supra, 46 Cal.2d at page 836, as well as Chapman, supra, 386 U.S. at page 24. There was other evidence revealing that Lopez had a criminal history and was a parolee at large at the time of the charged offenses. The jury was told pursuant to stipulation of the parties that Lopez had a prior felony conviction and Lopez admitted during his testimony that he was a parolee at large when he committed the charged offenses. On cross-examination he admitted he had several prior felony convictions.

10. Instruction on Accomplice Testimony

Lopez contends the trial court erred in failing to instruct sua sponte on accomplice testimony. He argues such instruction was required because the jury could have reasonably concluded that Shebra Mitchell was an accomplice in the motel robbery. Lopez asserts that this error was compounded by the trial court vouching for Mitchell by instructing the jury right before Mitchells testimony that her incarceration should not bear on the jurors consideration of her testimony and that it did not make her any less believable.

The trial court has a duty to instruct sua sponte regarding accomplices and their testimony when "the evidence is sufficient to warrant the conclusion by a jury that a witness implicating the defendant was an accomplice." (People v. Cooper (1970) 10 Cal.App.3d 96, 102.) Essentially, the trial court must instruct the jury that "the testimony of an accomplice is to be viewed with distrust and that the defendant may not be convicted on the basis of an accomplices testimony unless it is corroborated." (People v. Hayes (1999) 21 Cal.4th 1211, 1271; People v. Zapien (1993) 4 Cal.4th 929, 982.)

Lopez argues the evidence was sufficient to support a jury finding that Mitchell was an accomplice. We disagree. At trial, Mitchell, who testified in jail garb, stated that during the afternoon of June 19, 2004, she and Wofford had used drugs with Sanchez at Sanchezs motel room. Mitchell and Wofford then took Sanchezs car to buy more drugs but did not return the car. Later that evening Mitchell and Wofford picked up Lopez in Sanchezs car at an apartment complex and took him to another location to purchase drugs. While Lopez was in the car, he told Mitchell and Wofford that he had robbed Sanchez at knife point and had taken $200 from Sanchez. Lopez gave Wofford $200 in exchange for some drugs.

An accomplice is a person who may be prosecuted for the identical offense charged against the defendant. (§ 1111; People v. Coffman (2004) 34 Cal.4th 1, 106.) An accomplice must be culpable as a principal, either as an actual perpetrator or an aider and abettor. (People v. Snyder (2003) 112 Cal.App.4th 1200, 1220).) "However, an aider and abettor is chargeable as a principal only to the extent he or she actually knows and shares the full extent of the perpetrators specific criminal intent, and actively promotes, encourages, or assists the perpetrator with the intent and purpose of advancing the perpetrators successful commission of the target offense. [Citation.]" (Snyder, supra, at p. 1220.) Mere presence at the scene of the crime is inadequate. (People v. Stankewitz (1990) 51 Cal.3d 72, 90.)

Mitchell was an accomplice only if she acted with guilty knowledge and intent with regard to the commission of Lopezs robbery of Sanchez. (People v. Stankewitz, supra, 51 Cal.3d at pp. 90-91.) "The burden is on the defendant to prove by a preponderance of the evidence that a witness is an accomplice. [Citation.]" (People v. Fauber (1992) 2 Cal.4th 792, 834.)

Because there was no evidence to suggest that Mitchell was involved directly or indirectly as an aider and abettor in the robbery of Sanchez, the court had no sua sponte duty to give an accomplice liability instruction. Although initially Mitchell and Lopez were both charged with unlawfully taking or driving Sanchezs car and receiving the car as stolen property, the charge against Lopez was ultimately dismissed. There simply was no evidence Mitchell was involved in the motel robbery. There was no evidence she was present during the robbery or had anything to do with it. The robbery occurred after Mitchell and Wofford left the motel with Sanchezs car and did not return.

Although Sanchez testified that Lopez told him that if he wanted his car back he needed to give him money, this alone was not sufficient evidence to require an accomplice instruction. Sanchezs testimony indicated Lopez knew Sanchezs car had been stolen, but there is no evidence that Mitchell was involved in the subsequent robbery of Sanchez. Rather, the evidence indicated Mitchell and Wofford found out about it afterwards, while giving Lopez a ride. An instruction must be given only if it is supported by substantial evidence. (People v. Marshall (1997) 15 Cal.4th 1, 39-40.) Here there was not substantial evidence to support an accomplice instruction.

Furthermore, the trial court did not err in admonishing the jury before Mitchell testified, that the fact she was in custody for some other offense "doesnt make her any more or less believable . . . ." Mitchell was wearing jail garb when she testified. The courts admonition appropriately echoed CALCRIM No. 337, given at the end of presentation of the evidence, along with CALCRIM No. 316.

11. Photographic Lineup of Lopez

Lopez contends the trial court erred in denying his motion to suppress Sanchezs identification of Lopez because the police used an unduly suggestive photographic lineup.

A. Factual and Procedural Background

According to Deputy Lewiss report regarding the motel robbery, Sanchez described the perpetrator as a 6-foot 1-inch, 185-pound Black man. Lopez is a 5-foot 9-inch, 160-pound Hispanic.

On July 12, 2004, Mehlbrech interviewed Sanchez, with the assistance of a police department employee who acted as an interpreter. During the interview, Sanchez was shown two photographic lineups, one containing a photograph of Mitchell and the other containing a photograph of Wofford. Sanchez quickly identified Mitchell and Wofford as the individuals who stole his car.

After interviewing Mitchell and Wofford, as well as Sanchez, it was determined that Lopez was the perpetrator of the motel robbery. He had recently been shot and apprehended by the police. His booking photograph was used for a six-pack photographic lineup shown to Sanchez on July 14, 2004. Before showing Sanchez the photographs, Mehlbrech asked Sanchez through a Spanish-speaking deputy to describe the perpetrator of the robbery. Sanchez said the perpetrator was Black but light-skinned and that he thought he could identify him in a photographic lineup. After viewing the lineup photographs for about 20 seconds, Sanchez pointed to Lopezs photograph and said, "I think this is him."

Prior to trial, Lopez moved to suppress Sanchezs identification of Lopez, claiming Sanchezs identification of Lopez in the photographic lineup was unduly suggestive. The trial court held an Evidence Code section 402 hearing. Sanchez testified that after a Black man and woman stole his car, a "cholo" came to his motel room, told him to give him money if Sanchez wanted his car back, left with the money Sanchez gave him, returned later, and at knife-point, took Sanchezs wallet and cut his face. Sanchez denied telling the police the assailant was Black. Sanchez claimed he told the officer the assailant was a "cholo." Sanchez explained that a "cholo" was Mexican or a person of Hispanic descent.

After listening to Mehlbrech and Sanchezs testimony, the trial court denied Lopezs motion to exclude Sanchezs photographic lineup identification of Lopez. The court noted that defendants could cross-examine Sanchez and the officers on what occurred and was said during the photographic lineup and Sanchezs initial interview.

B. Applicable Law

In determining whether a photographic lineup "is so unreliable as to violate a defendants right to due process, the court must ascertain (1) `whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification was nevertheless reliable under the totality of the circumstances. [Citation.]" (People v. Wash (1993) 6 Cal.4th 215, 244.) In making a determination as to whether the identification process is impermissibly suggestive, the trial court considers "`the opportunity of the witness to view the criminal at the scene of the crime, the witness [sic] degree of attention, the accuracy of the prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation, as well as the suggestiveness of the procedure employed. [Citation.] [Citation.]" (People v. Sanders (1990) 51 Cal.3d 471, 508.)

"Generally, a pretrial procedure will only be deemed unfair if it suggests in advance of a witnesss identification the identity of the person suspected by the police. [Citation.]" (People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.) "`The burden is on the defendant to show that the identification procedure resulted in such unfairness that it abridged his rights to due process. [Citation.] [Citations.]" (People v. Sanders, supra, 51 Cal.3d at p. 508.)

Applying these legal principles to the photographic lineup in this case, we conclude it was not unduly suggestive.

C. Discussion

Lopez argues that the photographic lineup was unduly suggestive for a number of reasons. He complains that although the six photographs in the lineup were all Hispanic men in jail garb, Lopezs photograph stands out because it is significantly lighter in color and Lopez is positioned higher in the photograph than the other individuals, with his head touching the upper border of the photograph. In addition, Lopezs photograph was in the same number two position as were the photographs of Mitchell and Wofford in the other photographic lineups. Mitchell and Woffords photographic lineups were shown to Sanchez two days earlier.

Lopez also argues the circumstances of the photographic lineup indicate it was unreliable. It did not occur until almost a month after the motel incident; Sanchez was under the influence of alcohol and drugs during the motel incident; he was stressed by the assault and theft of his car; and Sanchez initially told the police Lopez was Black and heavier and taller than his actual weight and size. In addition, when Sanchez identified Lopez during the lineup, he hesitated about 20 seconds before selecting Lopezs photograph and equivocally stated, "I think thats him."

Despite these circumstances, the photographic lineup was not unduly suggestive and was sufficiently reliable. Sanchez had ample opportunity fully to observe Lopez initially in a nonthreatening situation and then again about an hour later, during the robbery.

Even though Sanchez may have been under the influence of drugs and alcohol, this did not prevent him from identifying Wofford and Mitchell in photographic lineups without any hesitation, thus indicating he was capable of observing and accurately recalling those present during the motel incident. Although it took Sanchez about 10 seconds longer to identify Lopez, nevertheless he was able to do so. It may have taken him longer because he spent less time with Lopez than with Wofford and Mitchell, with whom he socialized in his motel room for over an hour.

While the photographic lineup took place a month after the robbery, this was not all that long after the incident. Furthermore, Sanchez had no difficulty identifying Lopez at trial.

Although Lopezs photograph in the lineup does differ from the photographs of the other five individuals in that the photograph is somewhat lighter and Lopez is positioned a little higher than the other men, such discrepancies were not sufficient enough to render the lineup unduly suggestive. "[T]here is no requirement that a defendant in a lineup, either in person or by photo, be surrounded by others nearly identical in appearance. [Citation.] Nor is the validity of a photographic lineup considered unconstitutional simply where one suspects photograph is much more distinguishable from the others in the lineup. [Citations.]" (People v. Brandon, supra, 32 Cal.App.4th at p. 1052.)

As to the fact that Lopezs photograph was in the same number two position as were the photographs of Mitchell and Wofford, this also did not render the lineup unduly suggestive. The Mitchell and Wofford lineups were not presented to Lopez the same day as Lopezs lineup.

Evidence that Sanchez initially described his assailant as Black was refuted by Sanchezs testimony denying he described Lopez as Black. Sanchez claimed he had said Lopez was Hispanic. The use of someone to interpret for Sanchez may have resulted in miscommunication or misinterpretation of Sanchezs description of Lopezs race.

Sanchezs inaccuracy as to Lopezs height and weight is not critical as it was an estimate subject to inaccuracy, and Lopezs weight may have changed subsequent to the motel incident. Sanchez and Mitchell testified at trial that it appeared Lopez had gained weight since the incident.

As to Sanchezs initial statement to Lewis that the person who stole his car was the same person who stole his wallet and stabbed him, Sanchez conceded at trial that he had initially lied to the deputies. Sanchez explained that he did so because he did not want to tell the officers that he had loaned his car to Wofford so he could buy more drugs.

Based on the totality of these circumstances, we conclude the identification procedure was not unduly suggestive and Sanchezs identification of Lopez during the lineup was sufficiently reliable. (People v. Wash, supra, 6 Cal.4th at p. 244.) Defendants had the opportunity to cross-examine witnesses as to any inconsistencies or questionable circumstances relating to Sanchezs identification of Lopez. The trial court appropriately denied Lopezs motion to suppress Sanchezs photographic lineup identification of Lopez.

12. Cumulative Error

Defendants assert that the cumulative effect of the numerous errors in this matter warrants reversal, even if the errors individually were not sufficient to constitute prejudicial error.

Under the cumulative error doctrine, errors that are harmless when considered separately may be prejudicial when considered together. (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) Reversal may be required when the cumulative effect of the errors made at trial amounted to a miscarriage of justice. (People v. Hill (1998) 17 Cal.4th 800, 844.)

In applying this standard to the circumstances in this case, we conclude the prejudicial effect of any errors made at trial does not require reversal. Although defendants trial may not have been error free, the cumulative effect of any such errors did not amount to a miscarriage of justice. A criminal defendant is entitled to a fair trial, but it is impossible to guarantee a perfect trial. (People v. Stewart (2004) 33 Cal.4th 425, 522.) While the errors may have caused some prejudice, the prejudice was minimal and the evidence in support of defendants guilt was overwhelming.

13. Disposition

The judgments as to Gonzalez and Lopez are affirmed, with the exception that the judgment is reversed on count 3 (grand theft of a firearm) as to both defendants. The judgment is affirmed in all other respects.

The superior court is directed to issue a modified abstract of judgment reflecting reversal of defendants count 3 convictions for grand theft of a firearm, and to forward a certified copy to the Department of Corrections and Rehabilitation.

We concur:

Hollenhorst, Acting P. J.

Richli, J.