People v. Stroman

Full title: THE PEOPLE, Plaintiff and Respondent, v. JAJUAN PHILLIP STROMAN et al.…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

Date published: Jun 21, 2012

A127950 (Cal. Ct. App. Jun. 21, 2012)

Opinion

A127950 A127996

06-21-2012

THE PEOPLE, Plaintiff and Respondent, v. JAJUAN PHILLIP STROMAN et al., Defendants and Appellants.

Kline

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Alameda County Super. Ct. No. C150499)

In these consolidated appeals by defendants Terrance Varner and Jajuan Phillip Stroman, each claims errors assertedly affecting their joint jury trial convictions for the second degree murder of Clarence Ogden (Pen. Code, § § 187, 189), with gun use and arming allegations, including that each discharged a firearm proximately causing the death (id., § 12022.53, subd. (d) (§ 12022.53(d))).¹ Each was sentenced to an aggregate prison term of 40 years to life, comprised of 15 to life for the murder (§ 190), plus 25 to life for the enhancement.

1 All unspecified further section references are to the Penal Code. Other found-true enhancements as to each defendant were personal and intentional discharge of a firearm (§ 12022.53, subd. (c)), personal use of a firearm (§ § 12022.5, subd. (a)(1)), 12022.53, subd. (b)), and arming of a principal with a firearm (§ 12022, subd. (a)(1)). Varner was further convicted of being a felon in possession of a firearm under former section 12021, subdivision (a), since recodified without substantive change as section 29800. (Stats. 2010, ch. 711, § 6, p. 4271, eff. Jan. 1, 2012.) The same legislation also repealed and reenacted all of the other enhancements in this case, but without change or even renumbering. (Stats. 2010, ch. 711, § 5, pp. 4141-4144.)
The verdicts state that each defendant did "personally and intentionally discharge a firearm and cause death," but erroneously refer to this as a "section 12022.53(c)" rather than a section 12022.53(d) finding. No party claims substantive error in that regard.

Finding no prejudicial error, we affirm the judgments.

BACKGROUND

General Overview

The killing occurred on the evening of March 28, 2004, and most people in the drama had street names. Defendants did not testify. There were variations in the eyewitness accounts, some evidently due to fear or loyalty, but the overall picture is that 18-year-old Ogden ("Little C") verbally accosted Stroman ("Wookie") at an Oakland street gathering by stepping into a tiff between Stroman and former girlfriend Seneca Casteele ("Slim"). Stroman left in his burgundy Oldsmobile, picked up Varner ("T"), who had a gun for each of them, returned with Varner in the car, and caught up with Ogden as he ran from a car in which he rode with Casteele and her friends. In front of dozens of people, defendants then got out, confronted Ogden and, as he fled from them, each shot him once in the back, killing him.

The scene. The scene was East 22d Street as it rises from 23d Avenue to a crest and descends to 21st Avenue. It is an area of drug dealing, and alcohol and drug use. People commonly hang out at the crest, at a small housing authority complex and street-side parking lot. Several women, including Casteele and friends Asia Allen ("Angel") and Sumayyah Grey were out by Grey's car, parked in the lot. People from a barbeque at a house across from the lot were out in front, as were others. It was Sunday, and Ogden was on a weekend pass from a juvenile facility, Camp Sweeney, at the barbeque with friends. Ogden's longtime friend Lawrence Nero, still a minor, had been released from custody the week before and was out riding in Stroman's four-door Oldsmobile, drinking and using drugs with defendants. He was Varner's cousin and had known Stroman for six years.

Forensics. An autopsy identified two penetrating gunshot wounds, neither fired close enough to leave powder burns. The order of infliction was not determined, but we identify them as shots one and two for ease of discussion.

Shot one entered the left back, over six inches from the spine and 14 inches below the shoulder, passed a bit downward, and made a one-eighth-inch hole in the aorta before exiting near the armpit on that side. Shot two entered the right back over four inches from the spine and seven below the shoulder, hit no vital structures, just soft tissue and muscle, and had no exit wound. The bullet was removed during hospital treatment. Shot one made a round hole and a pathway three-eighths of an inch at its widest. Shot two made an ovoid entrance hole about one-half by three-eighths of an inch. The wounds did not allow typing of the weapon, weapons or caliber, but a larger hole can indicate a larger caliber. The same gun could leave both circular and ovoid holes.

A third wound was a "grazing" one along the front of Ogden's left upper arm or shoulder. It did not penetrate the skin and could have been caused by the bullet from shot one as it exited near the armpit.

The cause of death was internal hemorrhage from multiple gunshot wounds. By far the more devastating wound was the one through the aorta, which could have caused death by itself. The second wound probably would not have caused death by itself, but passed through the body and "did contribute to the individual dying." The combination of the two wounds together is what caused Ogden's death.

The bullet recovered from Ogden's body was .25 caliber full metal jacket bullet, and a .25-caliber metal casing found at the shooting scene was, according to a police sergeant, from a semi-automatic weapon, not a revolver, and a ballistics expert could not say whether the recovered bullet and casing were related. No weapons were recovered.

Investigation. Homicide investigation by the Oakland Police Department (OPD) led to Casteele and Allen, who were interviewed early the next morning, and then Carl ("Ray-Ray") Anthony, all implicating Stroman and Varner. Months later, information from DeAngelo Hudson led to Nero, who was interviewed and initially arrested as an accessory.

Varner was apprehended in October 2004, after he was found living in Kentucky under an assumed name. Stroman was discovered in March 2005 in Sacramento, jailed under a false name.

Testimony and Statements Highlighted on Appeal

This case took years to get to trial, and three eyewitness accounts particularly bound up in the issues on these appeals were by people who, in the prosecutor's words, had opted to "go sideways." By this she meant that, having once given statements or testimony implicating defendants, witnesses changed their stories or claimed no memory when it came time to testify at a trial in front of defendants and others. We set out in some detail the highlighted accounts from Nero, Hudson, and Anthony.

Lawrence Nero. Lawrence Nero had been a friend of Ogden's for years, hung out with him all the time and, at age 17 on the night Ogden died, was near his age. In October 2004, seven months after the homicide, Nero was arrested by OPD officers as an accessory (§ 32), gave a Mirandized statement,² and testified at defendants' preliminary hearing in July 2005, five months into a year-long youth authority commitment for drug possession. By the time of trial, he stood convicted but not yet sentenced for a San Francisco drug offense. He said he did not want to testify at all, but did cooperate in giving general facts leading to the homicide. He was Varner's cousin, knew Stroman, and spent the day hanging out with sometimes one and sometimes both of them, driving around in Stroman's burgundy Oldsmobile. They were "into heavy narcotics," and all three drank "Remy" and used marijuana and Ecstasy throughout the day.

2 Miranda v. Arizona (1966) 384 U.S. 436.

Nero knew that Stroman had dated Slim (Casteele), and on a drive down East 22nd Street past her, with Nero in the car, Stroman got into an argument with her. Then when Ogden came up to the car and Stroman got out, those two got into a commotion that turned loud and threatening enough that Nero got out, got between the men, and pushed them apart. Ogden told Stroman, " 'Get the fuck up out of here,' " and tried to get around Nero, telling Stroman to get out or else, as Casteele spewed aggressive words at Stroman. Stroman told Nero, " 'Come on,' " and they both got back into the car (Nero in the front passenger seat) and drove away as Casteele stood on the curb. There had been a lot of onlookers, but Nero did not recall anyone else trying to halt the confrontation. They drove to 25th and parked near where Nero's grandmother lived. Varner was standing there and, asked by Stroman to get in, took the backseat. Stroman then told Varner what had happened and said something about Ogden " 'talking shit.' "

At this point in his narrative, whereas he had previously said Varner left the car and returned with two guns, Nero started denying things or claiming lack of memory. But confronted with his prior statements, Nero conceded that Varner got the guns from behind some apartments, returned with them to the backseat, and passed a .25 automatic over to Stroman. Nero was not given one. Nero also conceded that the second gun, which Varner kept, was a chrome revolver, and said they went back to East 22nd Street. As to what happened next, however, Nero replied "I don't know" or "I don't recall" to virtually every question put to him. The prosecutor moved without objection to play Nero's October 2004 police statement to the jury, and jurors were provided transcripts.

In his police interview, Nero had related an argument between Stroman and Casteele on an earlier drive down East 22nd Street, and that Stroman went back after he phoned Casteele and she started "talking mess to him on the phone." It was on the return trip that Ogden got involved, and this was after Stroman got out of the car and started arguing with Casteele. After Nero broke up that confrontation, they "went and got T," who got the guns, and they went back a third time.

On the third trip, Nero had related, he remained in the front passenger seat and saw Ogden, Casteele and two other African American women pull away in a car. Stroman followed for two or three blocks, and back again, until the car pulled over near the top of the hill on East 22nd Street and Ogden got out, unarmed. Stroman stopped his car a bit behind, and Varner got out, gun in hand, grabbed Ogden and had him against a parked car. Stroman arrived on foot seven seconds later and shot Ogden once with the automatic, hitting him in the side. As Ogden ran off, Varner shot with the revolver some 10 feet away from Ogden, but Ogden kept running. Defendants ran back to the car, and Stroman kept going toward the car when someone walked up, confronted and started talking to him (out of Nero's hearing). Defendants jumped in, both saying the guy had a gun, and they all drove away together. Nero had stayed in the car but saw the shootings through the window from his place in the front passenger seat, about 30 feet away. He only heard the two guns that defendants fired, and he saw no weapons on Ogden. Nero himself never had or shot a gun. As they drove off, Stroman phoned some female and was "cussing her out," calling her a stupid bitch. Defendants dropped Nero off at remote intersection, and he never saw what happened to the guns.

After the playing of the tape, Nero would not answer whether he recognized his voice on it, and the court declared the evening recess. The next day, when Nero refused to answer any questions, the court and all counsel agreed out of the jury's presence that Nero needed to have counsel present, and the court took under advisement a defense motion to strike his testimony and a prosecution motion to find him unavailable so that his preliminary hearing testimony could be read.

Those motions became moot when, appearing with his own counsel, Nero agreed to cooperate. It turned out, however, that his cooperation did not mean he ultimately adhered to everything he said in his police statement. On further direct examination, he identified diagrams and pictures of a gray car as being the one he saw Ogden pinned against, but then he began backpedaling by saying that, when he spoke with police and district attorney personnel, he did so "to get you out of my face" and said he was not happy having to testify, particularly against his cousin in front of family. Then he told the prosecutor he did not recall whether Stroman got on the phone after the shooting and did not think he said on the tape that he saw defendants shoot Ogden.

On cross- and redirect examination, Nero stressed that he had been drinking and using drugs the day of the killing, and repeatedly said he went along with some things he was asked (or told) in his police interview in order to get out of the station or end the interview. In the end, several main points of retraction, despite contrary interview answers, were that: (1) he only heard shots being fired and never saw the shots being fired; (2) he lied when he said he saw either defendant fire a gun; (3) he could not see the action at the parked gray car, beyond knowing that defendants were with Ogden, because the gray car itself blocked his view; and yet (4) he could see that Ogden was just leaning back on the car, albeit with Varner's hand on his shoulder, and was not being grabbed or restrained.

DeAngelo Hudson. DeAngelo Hudson's account at the preliminary hearing in July 2005 implicated both defendants in the shooting. But when called to testify at trial, he was in custody awaiting his own trial for a 2007 homicide and, in part because he feared that his answers in this trial could incriminate him in his own case, invoked his Fifth Amendment privilege. After a closed session with only Hudson and his counsel to explore further reasons for Hudson not testifying, the court excused Hudson altogether and allowed his preliminary hearing testimony to be read to the jury. (See pt. III, post.)

Hudson was outside his girlfriend's house atop the hill on East 22nd Street, next door to the barbecue Ogden attended, and saw the events leading to the death of Ogden, his friend. Stroman drove by in his burgundy Oldsmobile, and Hudson flagged him down and spoke briefly with him at the window about wanting to buy some marijuana. Varner was in the front passenger seat and another man was in the back. As Stroman drove off, Casteele flagged him down from across the street, and Stroman made a U-turn back. Hudson was walking back up the hill and not paying much attention, but saw Casteele walk to within about 13 feet of the passenger side of the car for a couple of minutes, with Ogden present but further back. Hudson then saw Ogden, seemingly drunk and holding a two-liter soda bottle, walk up to the driver side of Stroman's car and tell Stroman, " 'Don't mess with them boosie ass niggas.' " Hudson and others walked a bit nearer to the encounter, Hudson worried about Ogden starting something while drunk. Stroman told Ogden to get away, and his passengers got out and walked around toward Ogden, who backed off. Stroman then got out, too, and the three had Ogden surrounded. Stroman drove off with his passengers and turned left on 21st Avenue, and as Hudson walked back up the hill, Grey drove off with Ogden in her long, "gold-ish" four door car. Among the bystanders Hudson saw were Ronald, Anthony ("Ray-Ray"), and Jerome Robinson ("Rome").

Hudson was alerted to the final encounter when, back with his girlfriend on the front porch at her house, a man ran up the stairs and said, "they about to jump him." Walking down the street, Hudson saw Ogden, about two houses to the left, toward 23rd Avenue, backed against a parked gray car, with both defendants "up on him." Ogden had his hands to his side at hip level, and Hudson saw nothing in them. Ogden was moving his shoulders as if trying to get away from the car. When Ogden broke free by pushing between defendants and starting to run, Stroman yelled " 'Get him,' " and Varner shot Ogden once in the back at arm's length. Then Stroman fired a second shot, hitting Ogden in the shoulder (where Hudson saw a blood spot on his white T-shirt). Hudson did not actually see guns but heard the shots, saw flashes from the end of each defendant's extended arms, and saw Ogden's body jerk from the impacts. Ogden ran off toward 23rd Avenue. Defendants walked down the sidewalk, the other way, after Hudson heard a man's voice saying, " 'You shouldn't have did that shit up here.' " Hudson ran after Ogden to 23rd Avenue, turned right and, after yelling out for Ogden, found him lying midblock on the sidewalk with a woman kneeling over him. Hudson called 9-1-1.

Carl Anthony. Carl Ray ("Ray-Ray") Anthony, age 19 and another longtime friend of Ogden's, was outside drinking and hanging out with Ogden and others on East 22nd Street, on the hill, when the events took place. He gave a taped statement to police the next morning that closely tracked Hudson's account, implicating both defendants. He knew Stroman ("Wookie") well, knew the car he drove (a 1986 four-door, burgundy Oldsmobile Cutlass Ciera), knew Stroman's companion Varner as "T," and knew Casteele ("Slim") as a woman Stroman had been "dealin' with."

Casteele had arrived on the hill with friends Sumayyah Grey and Asia Allen ("Angel") in Grey's car, and Anthony first noticed Casteele arguing with Stroman over her phone. Then five minutes later, Stroman came "stompin' " ("drivin' hella crazy") over the hill and did this twice more, drawing the crowd's attention and the third time evoking cussing and loud yelling ("You, you bitch") from the trio of women gathered near Grey's car. Stroman had Varner and a third man in his car; Anthony had seen the third man other times but did not know him beyond that.

On the third pass, all three men in the Oldsmobile hopped out, and Anthony could hear Stroman arguing with Ogden—"like, 'man, you shouldn't of came at . . .' like, 'you should, got me messes up, [sic] you shouldn't be talkin' to me like that.' " Robinson was passing by in a car at that moment and told them: "Man, be cool. Y'all squash that shit." Stroman and his companions "bounce[d]" (rode off), as did Robinson, and as the three women were getting into Grey's car to leave, Ogden asked them for a ride around the corner and hopped into the backseat.

Then as Grey's car pulled away, Stroman followed close behind, and Anthony could see that the same three men were in the car as when he first saw it, except that Varner, not the third man, was in the front seat. When Grey's car doubled back and let Ogden out near a burnt building, Stroman and Varner got out of their car and confronted him, running up and putting a gun in his face, pushing him up against a car, and saying "I'll smoke your bitch ass." Stroman had a chrome gun and Varner a black one—each described by Anthony as a "revolver." Defendants were then briefly distracted as "some OG dude" Anthony did not know tried to stop them. He came into the street and tried to calm things down, urging, " 'Y'all can't do this. Don't do this on my spot' "; and " 'Man, y'all gotta quit all that bullshit! Don't do this on my spot.' " Ogden used the diversion to spin[] off" and make a run for it, but as he did, Stroman yelled " 'Hit him!' " Anthony heard "BAM!" as Varner fired first, dropping his cell phone and sweatshirt, and then Stroman fired, each hitting Ogden in the back. Ogden did not have a weapon. Anthony and a crowd of people headed off down the hill to 23rd Avenue, where Ogden had run, and found him lying on the ground.

When it came time to testify at trial, however, Anthony claimed in extensive questioning that he had no memory of giving the statement or of the participants and events and of that night—beyond seeing his friend dead. He was further questioned about the statement after it was read into the record (see pt. IV, post).

Other Eyewitness Accounts

Seneca Casteele. Casteele's trial testimony was so guarded and, to use the prosecutor's term, "sideways," that it was almost worthless beyond laying a foundation for admitting her preliminary hearing testimony. She claimed to have been drunk and drug addled, to not recall any significant events of that night or her own statements about them, and to have previously said things just to end questioning. She would "plead the Fifth" to questions that posed no conceivable risk of self-incrimination, only to be ordered to answer. She did recount, however, going with Grey, and best friend and roommate Allen, to the apartment of friend Sabrina on the hill that day, to having a post-breakup relationship with Stroman characterized by continued phone calls but cussing and trying to publicly humiliate each other almost every time they met, and yet, at the time of trial, still loving Stroman "for the person he is," and not wanting to say anything to get him in trouble.

Her preliminary hearing account was this. She, Allen and Grey drove in Grey's goldish-brown Pontiac Catalina and parked in the lot outside Sabrina's apartment after stopping for alcohol at Booker's, a liquor store, and she saw Ogden for the first time that day. Stroman pulled up to the crowd with Varner in his car, and Allen joked to Casteele, "There go your stalker." When Stroman noticed Casteele there, he shouted out his window, "[Y]ou fucking ripper!" and she ran out into the street to hurl her own insults, "disrespecting him" back. Sure he did not hear her because he had already sped away, she yelled after him: "[F]uck you, you bitch-ass nigga! Get up outta here. You looking hella boosey in front of yo' friends!" (By "boosey," Casteele meant "not cool.") She then ducked into the backseat of Grey's car, correctly anticipating another go-round. She hid there as Stroman drove up and down the street several times, "pedal . . . to the floor," shouting out for her to quit phoning him (which she was not doing). Then he got out (wearing blue jeans, a white T-shirt, and black-and-white cap) and found her in the backseat. She got out, and they argued back and forth, Allen trying to intervene. Then as Stroman stormed back toward his car, he became engaged in an argument with Ogden, who followed him to the car to carry on at his driver's window (Casteele unable to hear what was said). That ended when Stroman said "All right," and "smashed down the block" toward East 21st Avenue.

Figuring the drama was over, Casteele, Allen, Grey and Ogden all got into the Pontiac to go get some more liquor, and Grey drove them toward East 23rd Avenue. But a short distance away, they realized that Stroman was following them. There was some phone contact between Stroman and Casteele during the pursuit. They drove fast, hitting speed bumps and curbs, and Grey, sensing that this was about Ogden, announced that she was circling back to East 22nd Street to let him out. She did so near a burned-down house, and Ogden got out on the curb side and walked on the sidewalk, unarmed. As Ogden got out, Stroman pulled his car in front of them, and Varner "bounced out" and went toward Ogden with a revolver, the gun stifling Casteele's initial idea to get out, too.

What followed in Casteele's version roughly tracked what other witnesses said except—inferably due to her loyalty and feelings toward the ex-boyfriend—that Stroman never left the car and Varner fired three to four shots at Ogden. Watching from a distance of about 10 to 15 feet out the back window of Grey's car, she saw Varner go up to Ogden, have words with him, and Ogden try to get past him. Within 15 to 20 seconds of Varner leaving the car, she saw him raise his hand with the revolver and fire once at Ogden, at "body to body" range. That shot must have hit him in the shoulder, she figured, because Ogden "spint around" and ran off. After some seconds, as if confused or hesitating, Varner fired two or three more times at Ogden's back. Varner looked up and made eye contact with Casteele, who yelled at him out her window: "[Y]'all hella scandalous. . . . Y'all hella boosey. I ain't fucking witch y'all no more. Y'all ain't cool."

Varner got back in Stroman's car, in the right front seat, and the car drove off. Within seconds, Casteele got a phone call. She related: "He was like, bitch, it's like that? You riding with them niggas? And I was like, um, don't come at me like that. You got me fucked up. Don't call my phone no more. You ain't cool." Some guy in "long dreads," hearing her, asked if that was "Wook," then took her phone and called, essentially seconding the idea that Stroman was out of line. Casteele got further messages from Stroman that night but did not return his calls. The next morning, she shared this one with an OPD sergeant: " 'Damn, so nigga it's like that blood? You not gonna even gonna return my phone calls? It's bad enough you running around this motherfucker trying to get a nigga sent to jail for life . . . you need to call my phone back, or just tell me you don't give a fuck. Call me when you get this message.' "

Asia Allen. Allen ("Angel") testified at length, repeatedly claiming no memory of her preliminary hearing testimony, but demonstrating an apparently good memory of many events. She prepared for trial by listening to a tape of her interview with OPD Sergeant Jones from the day after the killing, and said the tape refreshed her memory, but she said she lied to Jones on two points and gave some answers that were not actual memories, just assumptions Jones made in his questions. Jones, she said, would leave the room (before taping) and return saying he felt she was lying because of something another witness at the station had just told him. Allen was also a reluctant witness, reporting negative repercussions from giving prior testimony in another case, and she had gotten to know, and now "loved," three members of Stroman's family who were present in court. No appellate issues focus on Allen's testimony, and it is enough to note some unsettled parts of her account.

Allen recalled driving around with Casteele and Grey that afternoon, smoking marijuana, splitting a fifth of Remy Martin they bought at Booker's, and arriving after nightfall at the lot outside her best friend Sabrina's apartment on the East 22nd Street hill. She knew Stroman as the boyfriend of her roommate, Casteele, and saw Ogden for the first time that night.

Allen first saw Stroman when he drove fast up and down the hill a few times as she stood talking with Casteele. Then on one pass, Stroman called out "ripper ass bitch" ("ripper" meaning someone who has sex with a lot of guys), and Casteele retorted, "bitch ass nigger." This was not an unusual exchange for the couple, in Allen's experience, and she could not see whether there was anyone else in Stroman's car.

Eventually, and maybe on a separate drive by, Stroman left his car in the street, got out and came over to Casteele in the parking lot where the women stood. Stroman and Casteele exchanged more words, another typical argument in Allen's view, but when Stroman said something about hitting Casteele, Allen stepped in and told Stroman that, if he hit her partner, she "was going to take off on him" (meaning hit him or beat him up). The triggering taunt was: " 'Bitch, you lucky you still walking around. Bitch, I gave you a pass. You lucky I ain't beat your ass yet.' "

It was during this second argument between the couple that Allen first noticed Ogden. He came into the parking lot asking everyone, without luck: "Anybody seen my drink? It was in a two-liter bottle. Anyone see my drink?" Stroman went back to his car, without further argument, and Allen next saw Ogden standing out in the street, bent over at Stroman's car, talking with him through the window. From the parking lot, she could not hear the conversation, but it did not look quarrelsome to her, and was not attracting anyone's attention. Casteele was upset from the argument, and Allen tried to calm her down. Stroman eventually drove away. Allen still had not seen anyone else in the car with him. It was pretty dark out; she had not really paid attention to the car; and she could not have seen into it anyway.

Like Casteele, Allen recounted the three women piling into Grey's car with Ogden and pulling away toward East 23rd Avenue, intent on buying more liquor, but aborting the plan and going back to East 22nd Street after they realized they were being followed. Despite prior statements that it was "Wookie's car," Allen would not commit at trial to the car being Stroman's, explaining that she could only see headlights and had only repeated what Sergeant Brown told her it was.

Grey pulled the car to a stop in the street, halfway down the hill on the East 23rd Avenue side of East 22nd Street. This was near the burned-out house, and gray and red cars were parked at the curb. The pursuing car pulled to a stop right behind theirs (not in front). Ogden got out from the front seat and walked further downhill to the sidewalk beyond the parked cars, and Allen, looking back through the rear window from her rear passenger seat toward the headlights, saw a "shadow" exit the passenger side of the other car, leave the door open, and walk to Ogden on the sidewalk, where the figures were still shadows. She could not make out a face, but the new figure was bigger than Ogden's. The figures stood higher than the parked cars they were behind. They faced one another, as if conversing, but out of her hearing. Ogden held his hands up and out to his sides and was backed against a parked car, and the other figure leaned into him with one forearm across Ogden's chest and something shiny in the other hand.

Upon seeing a spark and hearing a shot, Allen ducked her head down, heard about four shots in all, and lifted her head to see Ogden turning to run down the hill. That was her trial account, but she had stressed in prior testimony that she heard only two shots. Prior testimony about the gun being a revolver, she urged at trial, was an idea planted by Sergeant Jones during the early interview. She said she never saw a gun as such, only inferred its existence from the shiny, silver object, sparks and sounds. Ogden kept running downhill, across the street and around the corner, and the pursuing car left. Allen was not aware until much later that Ogden was fatally shot.

Allen eventually left the car and walked with Casteele further down the hill. Near the bottom of the hill, Casteele got a phone call, and Allen heard her say, " 'You hella boosey for what you did.' " Allen identified Jerome Robinson ("Rome") as a man in long dreadlocks who wound up talking on Casteele's phone afterward. He had been sitting on a porch or stairs near the bottom of the hill. Casteele claimed she did not hear what he said and did not know who had called her.

In the end, while Allen corroborated much of other witnesses' accounts in many particulars, she said she did not see either defendant with guns or at the shooting, and did not know if the shooter's car was Stroman's. She did say, however, that the figure that left that car did not match the body shape of Stroman, who was quite thin at the time.

DaMaris Mata. DaMaris Mata was out at the sidewalk in front of her neighbor's house around 10:30 p.m. that night, near the East 23rd Avenue end of the street, when she saw a brown car with "a lot of girls" come down the street and pass by headed uphill. Then just 20 feet to her right, she saw a really thin man in a white shirt and blue jeans get out on the passenger side and run, first up and then back down the hill as a red or burgundy four-door car came and stopped ahead of the brown car. Mata did not know any of the people in either car but saw four men in the burgundy car—including a tall and slim one with a red hat, white shirt and jeans—get out and surround or encircle the man from the other car. A tree partly blocked her view, but Mata could hear the one in the red baseball hat say loudly, " 'Why are you talking kind of shit about me?' " raise a black gun with "a wheel" in the middle to the other's temple, and punch him. Then as Mata turned and went up the neighbor's stairs to hide, she heard one shot and then, two seconds later, another. From the window, she saw the man without the hat run toward East 23rd Avenue. She did not see who did the shooting.

DISCUSSION

I. Aider and Abettor Instruction

"The mental state necessary for conviction as an aider and abettor . . . is different from the mental state necessary for conviction as the actual perpetrator. [¶] The actual perpetrator must have whatever mental state is required for each crime charged . . . . An aider and abettor, on the other hand, must 'act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.' [Citation.]" (People v. Mendoza (1998) 18 Cal.4th 1114, 1122-1123.) Also, "an aider and abettor's liability for criminal conduct is of two kinds. First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences [(NPC)] doctrine, an aider and abettor is guilty not only of the intended crime, but also 'for any other offense that was a "natural and probable consequence" of the crime aided and abetted.' [Citation.]" (People v. McCoy (2001) 25 Cal.4th 1111, 1117 (McCoy).)

The jury here was instructed on aiding and abetting without the NPC doctrine, and Varner claims prejudicial error in two respects. First, he contends that telling jurors that "[e]ach principal, regardless of the extent or manner of participation is equally guilty" (CALJIC No. 3.00, italics added) incorrectly kept them from finding him guilty of manslaughter rather than Stroman's crime of second degree murder. Second, he contends that jurors were improperly allowed to find him guilty of second degree murder by sharing Stroman's implied malice—i.e., subjective awareness of the dangerousness of Stroman's acts. Finding no prejudice from either such claimed error, we do not decide whether, as the Attorney General argues, there was no such error, or that any error was invited by the defense or forfeited by defense failure to request more complete instruction.

A. "Equally Guilty"

The "equally guilty" language of standard instructions has been under siege since our Supreme Court held as to non-NPC cases, a decade ago in McCoy: "The statement that an aider and abettor may not be guilty of a greater offense than the direct perpetrator, although sometimes true in individual cases, is not universally correct. Aider and abettor liability is premised on the combined acts of all the principals, but on the aider and abettor's own mens rea. If [that mens rea] is more culpable than the actual perpetrator's, the aider and abettor may be guilty of a more serious crime than the actual perpetrator." (McCoy, supra, 25 Cal.4th at p. 1120.) In the wake of McCoy, Court of Appeal decisions have held that the aider and abettor of a homicide-related offense may also be guilty of a lesser offense than the direct perpetrator. (People v. Nero (2010) 181 Cal.App.4th 504, 507, 513-518; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163-1164.) As a result of these developments, CALJIC No. 3.00 has been modified to propose substituting "guilty of a crime" for "equally guilty" in cases where confusion might arise (CALJIC No. 3.00 (2011 ed.) & Use Note), and the counterpart standard instruction, CALCRIM No. 4.00 (2011 ed.), has abandoned the words "equally guilty" altogether.

B. "Implied Malice" Murder

The other strand of Varner's argument, as clarified in his reply brief, is that the instructions on aiding and abetting and second degree (implied malice) murder together misdirected the jury that it could find him guilty of aiding and abetting implied-malice murder where the NPC doctrine was not used—a "legal impossibility" in his view. We need not burden this opinion with his full reasoning in this regard, for we may reject the claim for lack of prejudice.

C. Prejudice

As already indicated, we assume for argument's sake that it was error to include the "equally guilty" language and that the instructions given allowed the jury to improperly find aiding and abetting of implied malice murder. We further assume for argument's sake that these issues were not invited or otherwise forfeited by Varner for purposes of appeal and that they implicated federal constitutional rights meriting review under the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24. Using, further, the most stringent test of prejudice advocated by Varner, we conclude beyond a reasonable doubt that the errors did not contribute to the verdict. (People v. Chun (2009) 45 Cal.4th 1172, 1201.)

Varner's theory of prejudice is that testimonial variation about how many shots were fired and whether he himself fired at Ogden allowed the jury to decide that he did not directly perpetrate the murder but, rather, aided and abetted by getting the guns and giving one to Stroman, and that the jury improperly found him guilty without assessing his own intent as an aider and abettor.

The problem with his hypothesis is that the jury, beyond finding him guilty of second degree murder, also found true enhancements that, during the crime, he personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and did so proximately causing Ogden's death (§ 12022.53(d)). On the evidence, the jury cannot have relied on aiding and abetting to return those enhancement findings,³ and thus no error in the aiding and abetting instructions could have affected the verdict.

3 The pertinent instructional language, from CALJIC No. 17.19.5 (covering both enhancement findings), was: "It is alleged in Count I that the defendant intentionally and personally discharged a firearm and proximately caused great bodily injury or death to a person other than an accomplice during the commission of the crime charged. [¶] If you find the defendant guilty, you must determine whether the defendant intentionally and personally discharged a firearm and proximately caused great bodily injury or death to Clarence Ogden. [¶] . . . [¶] The term 'intentionally and personally discharged a firearm,' as used in this instruction, means that the defendant himself must have intentionally discharged it. [¶] . . . [¶] Include a special finding on that question in your verdict, using a form that will be supplied for that purpose."
Special findings in the verdict form, for each of which the jury circled "DID," were: "We, the jury, further find as to the above count, that TERRANCE VARNER DID / DID NOT personally and intentionally discharge a firearm and caused death to CLARENCE OGDEN within the meaning of Penal Code section 12022.7(a) and 12022.53(c) [sic]." (See fn. 1, ante.) [¶] We, the jury, further find as to the above count, that TERRANCE VARNER DID / DID NOT personally and intentionally discharge a firearm within the meaning of Penal Code section 12022.53(c)."

Relying on People v. Bland (2002) 28 Cal.4th 313 (Bland),Varner insists that the jury did not necessarily find that he shot Ogden, only that he intentionally fired a gun, missed, but nevertheless proximately caused Ogden's death by "setting in motion" events that led to Stroman and perhaps a third shooter who actually wounded and killed Ogden. The hypothesis is untenable on this record.

Bland did observe that section 12022.53(d), while requiring that a defendant intentionally and personally discharge the firearm, does not require that he personally inflict great bodily injury or death, only that he proximately cause it. (Bland, supra, 28 Cal.4th at pp. 333-336.) Thus "[a] person can proximately cause a gunshot injury without personally firing the weapon that discharged the harm-inflicting bullet," as where two persons engage in a gun battle, killing an innocent bystander. (Id. at p. 337.) Bland also declared a sua sponte duty to instruct on the meaning of proximate cause (id. at p. 334) and approved this definition as then found in CALJIC No. 17.19.5: " 'A proximate cause of great bodily injury or death is an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the great bodily injury or death and without which the great bodily injury or death would not have occurred.' " (Id. at p. 335, italics added.)

But the main obstacle for Varner is that, as discussed in the next section of this opinion (pt. II, post), this jury was never instructed on the meaning of proximate cause and thus had no reason to think Varner could have "proximately caused" Ogden's death by merely setting in motion events that produced Ogden's death as a direct, natural and probable consequence. Proximate cause is not a commonly understood term. It has "a meaning peculiar to the law" (Bland, supra, 28 Cal.4th at p. 335), and when it is not defined for jurors: "[J]urors 'may misunderstand its meaning or improperly limit their discussion of what constitutes a cause in fact.' [Citation.] . . . The correct definition of proximate causation is broader, not narrower, than jurors might assume." (Id. at p. 338.) There is no reason to think, on the evidence and presentation in this case, that the jury understood that section 12022.53(d) could require anything less than personal infliction of the harm. The possibility was never suggested in jury arguments, and the jury never asked questions about it.⁴

4 A potential second obstacle for Varner's setting-in-motion hypothesis, an obstacle invoked by the Attorney General to show lack of prejudice, is that the jury's verdict forms show, for each defendant, a finding under section "12022.7(a)" (fn. 1, ante). Unlike section 12022.53(d), section 12022.7, subdivision (a) does require personal infliction of great bodily injury (§ 12022.7, subd. (a) [person "who personally inflicts great bodily injury"]), and "12022.7(a)" also appears in the charging language of the informations for both defendants, albeit without language of the personal-infliction element—just the language of section 12022.53(d). But no instruction included that element or even referred to section 12022.7. Not surprisingly then, neither the oral nor written forms of judgments against defendants reflect enhancements under section 12022.7, subdivision (a). We therefore do not rely on the section "12022.7(a)" "finding" as being actually made.

II. Instruction on "Proximate Cause"

Instruction on the section 12022.53(d) enhancement, modeled on CALJIC No. 17.19.5, was in part as follows (italics added): "It is alleged in Count 1 that the defendant intentionally and personally discharged a firearm and proximately caused great bodily injury or death to a person other than an accomplice during the commission of the crime charged. [¶] If you find the defendant guilty, you must determine whether the defendant intentionally and personally discharged a firearm and proximately caused great bodily injury or death to Clarence Ogden." As already noted (pt. I, ante), no definition of proximate cause was given. This was error under Bland, which declared a sua sponte duty to give one. (Bland, supra, 28 Cal.4th at pp. 334-336.)

Both defendants complain of the error. Each claims prejudice, but we find none. As Bland explained in finding lack of prejudice there "under any standard," lack of the instruction generally leads jurors to a more limited view of proximate cause than the law allows. "[J]urors who improperly limit their discussion of what constitutes proximate cause will not find causation where it does not exist. The correct definition of proximate causation is broader, not narrower, than jurors might assume. In a criminal case, we noted that 'in Mitchell [v. Gonzales (1991) 54 Cal.3d 1041] we criticized the [former proximate cause instruction] as placing undue emphasis on physical or temporal nearness. [Citation.] Thus, . . . any such confusion on the jury's part could only benefit defendant.' [Citations.]" (Bland, supra, 28 Cal.4th at p. 338.) That appears to be the case here.

Bland also requires instruction on concurrent causes in appropriate cases, a proper charge being: " 'There may be more than one cause of the [great bodily injury or death]. When the conduct of two or more persons contributes concurrently as a cause of the [great bodily injury or death], the conduct of each is a cause of the [great bodily injury or death] if that conduct was also a substantial factor contributing to the result.' " (Bland, supra, 28 Cal.4th at p. 335.) Absence of concurrent-cause instruction in this case caused no conceivable harm. Even if we assume in Varner's favor that the jury had doubt about which defendant fired which of the two shots that killed Ogden, the undisputed testimony was that Ogden died of internal hemorrhage from multiple gunshot wounds and that even the less serious of the two passed through Ogden's body and "did contribute to [him] dying." The two shots together are what caused his death.

III. Preliminary Hearing Testimony by Hudson

DeAngelo Hudson was subpoenaed by the People to testify but never got to the witness stand. He had testified at the July 2005 preliminary hearing in this case (as set out in the background facts of this opinion), but was now in jail on a murder charge for a 2007 homicide, having had his own preliminary hearing but, as yet, no trial. His counsel, Jason Clay, advised that Hudson would refuse to testify, on grounds of Fifth Amendment privilege, as to matters that could incriminate him in his new case, and initial input from both defense counsel was that they would want to impeach Hudson with the new charge but were content to do so with the charge itself, not the facts underlying it. The court, however, said it was concerned, first, whether Hudson had valid claims of privilege, something on which he would need to be examined.

A. Hearing and Rulings

The matter next arose when Hudson was called by the People. He was sworn outside the jury's presence and, through counsel, immediately invoked his right to remain silent. Counsel Clay explained that, the pending charge being a crime of moral turpitude, it could be used to impeach Hudson, adding: "Furthermore, there are allegations related to the homicide that Mr. Hudson was or is or at the time was involved in some sort of drug transactions, sales, possession for sale of narcotics, which also is a crime of moral turpitude, which could be inquired into on cross-examination, and which is related to the circumstances surrounding a possible motive for the homicide in Mr. Hudson's own case." Asked by the court if there were other questions to which Hudson would need to assert privilege, beyond those about the pending charge, counsel added: "No. However, Mr. Hudson, for reasons which were discussed in chambers and which I would not like to discuss in open court, would not answer any questions related to this current case." Prosecutor Connie Campbell reluctantly agreed that the defense would have a right to inquire into the facts underlying Hudson's pending charge for "Wheeler" credibility purposes (presumably People v. Wheeler (1992) 4 Cal.4th 284) but asked that, if the court upheld the claim of privilege, it declare Hudson to be an unavailable witness.

That motion and the anticipated prospect that Hudson's preliminary hearing testimony would be read under Evidence Code section 1291, subdivision (a)(2), spurred "Crawford" (Crawford v. Washington (2004) 541 U.S. 36) objections by the defense of confrontation right violations should Hudson not testify. The court, identifying issues of Fifth Amendment privilege, impeachment, contempt of court for refusal to testify (Pen. Code, § 166, subd. (a)), and "other grounds . . . alluded to on the record," stated: "I need to go in-camera so that counsel can recite on the record those areas in which there are concerns, so I can make a full and informed decision as to the privilege and [Hudson's] assertion not to answer any questions let alone any questions pertaining to his pending matter." The court then went into closed session with Hudson and his attorney, and the reporter's transcript of that session has been transmitted to this court under seal for our confidential review.

Emerging from closed session, the court ruled: "I do find that Mr. Hudson has met his burden pursuant to Evidence Code section 404, and . . . that he is asserting his right [against] self-incrimination pursuant to Evidence Code section 940, and that counsel will not be able to ask any questions regarding his pending homicide."⁵ The court said it had also inquired about the grounds of Hudson's refusal to answer questions and had advised him of contempt consequences. "[A]nd in spite of that information, he continues to refuse to answer any questions. [¶] Therefore, I do find him unavailable pursuant to Evidence Code section 240, subdivision (a), and keeping in mind the case of Keller [In re Keller (1975)] 49 Cal.App.3d 663, I further find that to pursue contempt charges may be without consequence and therefore further grounds to find the witness unavailable pursuant to Evidence Code section 240, subdivision (a)[(1)]." The court excused Hudson and invited counsel to make a further record of their objections.

5 "To the extent that such privilege exists under the Constitution of the United States or the State of California, a person has a privilege to refuse to disclose any matter that may tend to incriminate him." (Evid. Code, § 940.)
"Whenever the proffered evidence is claimed to be privileged under Section 940, the person claiming the privilege has the burden of showing that the proffered evidence might tend to incriminate him; and the proffered evidence is inadmissible unless it clearly appears to the court that the proffered evidence cannot possibly have a tendency to incriminate the person claiming the privilege." (Evid. Code, § 404.)

Defendants reiterated their Crawford objection. Prosecutor Campbell noted that counsel for each defendant had, and acted upon, an opportunity to cross-examine Hudson at the preliminary hearing, but defense counsel stressed that Hudson's absence would deprive them of the chance to (1) question him about his current murder charge, and (2) question him further about motivations for testifying at the preliminary hearing, particularly a then-pending drug charge for which he was later convicted. Much of this concern evaporated, however, with the prosecutor's offer to stipulate for the jury the current murder charge, the earlier-pending drug charge (Health & Saf. Code, § 11352), and Hudson's eventual conviction for the offense.

The court reiterated its unavailability finding and allowance of prior testimony, this time incorporating the prosecutor's stipulation offers as things that would or could be done. After prosecutor Campbell further represented that she had not approached, and did not plan to approach, Hudson in the other case with any inducement for his cooperation here, and that defense counsel in Hudson's case had not approached her, the court reiterated that it would allow the prior testimony to be read, with the noted stipulations given to the jury.

Hudson's preliminary testimony was read before the jury, including over 100 pages of cross-examination by counsel for Varner (also his trial counsel) and lesser follow-up examination by prior counsel for Stroman. Stipulations at the close of the reading informed the jury that Hudson had been arrested in February and September of 2005 for sales or transportation of narcotics, that this resulted in his felony conviction, and that he had been arrested and was now charged for a 2007 murder.

B. Analysis

On appeal, defendants further pursue their claim of confrontation-right violation under Crawford, but add statutory arguments against the unavailability finding and prior-testimony ruling. The added arguments are that: (1) Hudson's Fifth Amendment privilege did not extend to his entire testimony about the Ogden homicide; (2) the prosecution did not exercise due diligence to compel Hudson's testimony in that, if the prospect of contempt sanctions for someone already in custody for murder was not promising, he could have been offered immunity (Pen. Code, § 1324); and (3) strategic differences inherent between preliminary hearings and trials are different enough that prior cross-examination at the preliminary hearing was not enough to ensure their confrontation rights. We find no error.

Taking first the basic Crawford contention and applicable statutory provisions implementing the confrontation right, the matter was settled by our state Supreme Court soon after Crawford: "A criminal defendant has the right under both the federal and state Constitutions to confront the witnesses against him. [Citations.] 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 defendant's right of confrontation under the federal Constitution. [Citations.]' [Citation.]

"Evidence Code section 1291, subdivision (a)(2), provides that former testimony is not rendered inadmissible as hearsay if the declarant is 'unavailable as a witness,' and '[t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.' In turn, Evidence Code section 240, subdivision (a)(5), states a declarant is 'unavailable as a witness' if the declarant is '[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process.' " (People v. Wilson (2005) 36 Cal.4th 309, 340-341 (Wilson);restated in People v. Thomas (2011) 51 Cal.4th 449, 499.)

Crawford did not alter settled law that a witness's preliminary hearing testimony is admissible, without violating state or federal constitutional rights, where the witness is unavailable (People v. Seijas (2005) 36 Cal.4th 291, 303 (Seijas)), and this extends to unavailability caused by the witness's successful assertion of Fifth Amendment privilege: "A witness who successfully asserts the privilege against self-incrimination is unavailable to testify for these purposes. [Citations.] . . . However, '[t]o be found unavailable on this ground, a witness must not only intend to assert the privilege, but also be entitled to assert it.' [Citation.]" (Seijas, at p. 303; Evid. Code, § 240, subd. (a).)

Next, defendants challenge the court's finding of similar motive and opportunity by insisting that "[t]he effectiveness of prior cross-examination must be evaluated to determine if it was good enough to render the prior testimony reliable," but they cite only pre-Crawford decisions and thereby misconstrue post-Crawford law. Crawford made a prior opportunity to cross-examine a witness " 'dispositive' of the admissibility of his testimonial statements, 'and not merely one of several ways to establish reliability,' " and Crawford overruled longstanding contrary precedent in Ohio v. Roberts (1980) 448 U.S. 56. (Wilson, supra, 36 Cal.4th at p. 343) "Crawford . . . made clear that reliability is not part of the inquiry under the confrontation clause: 'To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. . . .' [Citation.]" (Wilson, at p. 343.) The same is true under Evidence Code section 1291: " 'As long as defendant was given the opportunity for effective cross-examination, the statutory requirements were satisfied; the admissibility of this evidence did not depend on whether defendant availed himself fully of that opportunity. [Citations.]' [Citations.]" (Id. at p. 346.) In this case there was extensive actual use of that opportunity, and we are cited no authority that the strategic differences raised by defendants, between preliminary hearings and trials, has ever been held insufficient to protect a defendant's constitutional right of confrontation. This was certainly not a preliminary hearing where any limitation imposed by the court denied a defendant of his rights, or completely prevented him from exercising them. Defendants cite no such restrictions from the preliminary hearing.

Finally, defendants' arguments that self-incrimination could not justify excusing Hudson from all testimony in this case and that a grant of immunity was a solution not properly tried by the prosecution are answered by the transcript of the closed session held with just Hudson and his counsel. The parties, of course, do not have that information, but we have independently reviewed it and are satisfied that there was no error or abuse of discretion in the unavailability ruling.

There being no constitutional or other error shown, there is no need to discuss defendants' claims of prejudice.

IV. Prior Statement by Anthony

We have set out in the background part of this opinion the detailed statement Anthony gave to police the morning after the killing. When called before the jury at trial, however, he said straightaway that he did not want to be there and, while conceding that he knew Ogden and Stroman, and passingly knew Varner, denied memory of most events of that day beyond an image of his best friend, Ogden, lying dead on 23rd Avenue. In extensive direct and cross-examination, he claimed he did not, or did "[n]ot really" remember what went on, even when passages of his police statement were read to him. He said he prepared for his testimony by listening to the taped statement with a transcript, and recognized his voice on the tape, but he claimed no memory of the arguments, shooting, or confrontations of the fatal evening, who was there, what kind of car Stroman drove or owned, knowing which "Rome" might have been there, or seeing either defendant with a gun. He also denied memory of picking defendants out of photo spreads days later.⁶

6 Defendants' briefing challenges admission of Anthony's "statement," meaning a 16-minute interview of March 29, 2004, reflected in People's exhibit No. 11A, but does not mention People's exhibit No. 13A, later also read to the jury during Anthony's testimony. People's exhibit No. 13A was a three-minute interview two days later in which Anthony identified Varner from photos as one of the shooters and covered some of the same ground as his first interview. He recalled defendants alighting from the car and holding guns to Ogden (Varner to his chest and Stroman to his head), the diversion by the "OG dude," Stroman yelling "Man, hit him!" as Ogden broke free, and each defendant shooting Ogden as he ran. Defendants' inattention to the shorter exhibit may be because, as far as we can see, no objection at all was raised to its admission below. Also, the photo identification was independently placed in evidence, again without objection, through the testimony of OPD Sergeant Tony Jones. ~(RT 1110, 1129, 1135-1137)~

Anthony blamed his past use of drugs, especially Ecstasy, for a memory so poor that he could not recall being shot two years before trial, but even the cold record leaves a strong impression that he was feigning memory loss to avoid having to testify. His nearly total loss of memory, with surrounding memories intact, defied logic, and he tripped himself up in at least one major inconsistency, claiming no memory of speaking with police officers or giving them a statement, yet recalling having a "drug warrant" out for him at the time, having a sense in making the tape that he would "get out" if he told officers what they wanted to hear, and having an understanding from speaking with the officers that they would let him go and not serve the warrant if he cooperated.

A. Ruling

Challenged by both defendants is a ruling allowing Anthony's police statement to be read into the record. The ruling came after lengthy direct examination by prosecutor Campbell, who then asked that the tape be played, with transcripts for the jury to follow. Upon invitation for defense objection, Varner's counsel objected and gave this somewhat murky explanation: "On the grounds that the fact is that he says he doesn't remember. That doesn't—because you don't remember wouldn't automatically make it invalid so that you can play a tape. And I would say that if he truly doesn't remember, then there is no basis for it."

Campbell responded: "[B]ased on the witness's clear reluctance to be here, his clear reluctance to answer any questions that directly implicate[] anyone, I believe that it is, under Green [(People v. Green (1971) 3 Cal.3d 981 (Green))], and that line of cases, appropriate to play this as consistent with whether or not you believe a witness when they are saying they don't remember. And I believe there has been abundant foundation laid for that."

Overruling the objection, the court said: "There were several recitations with regards to his inability to recall, even after being given an opportunity to review the tape, and so the court will allow the playing of the tape." It was then read for the jury, with Anthony still on the stand. Afterward, direct and cross-examination produced essentially the same denials of recollection as before. However, as already noted, Anthony did implicitly recall making the statement and speaking with the officers, for he recalled that, from speaking with them, he expected to escape his drug warrant if he made the tape.

B. Contention and Analysis

Defendants claim that admission of the statement denied them their confrontation rights because, while they had the opportunity to cross-examine Anthony, his claimed lack of any memory deprived them of a meaningful opportunity to test the statement. We reject the claim.

The court did not specify its basis for admission but, given the prosecutor's allusions to consistency, reluctance to testify, and case authority "under Green" (see Green, supra, 3 Cal.3d 981), and the court's mention of Anthony maintaining an inability to recall despite review of the tape, the court must have relied on the hearsay exception for inconsistent statements. A recent post-Crawford exposition of the law quotes in part from Green: " 'A statement by a witness that is inconsistent with his or her trial testimony is admissible to establish the truth of the matter asserted in the statement under the conditions set forth in Evidence Code sections 1235 and 770.'⁷ [Citation.] 'The "fundamental requirement" of section 1235 is that the statement in fact be inconsistent with the witness's trial testimony.' [Citation.] ' "Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness'[s] prior statement . . . ." ' [Citations.]" (Cowan, supra, 50 Cal.4th at p. 462, fn. omitted.) "[A] witness's deliberate evasion of questioning can constitute an implied denial that amounts to inconsistency, rendering a prior statement admissible under Evidence Code section 1235. [Citation.] Normally, the question of evasiveness arises when[, as here,] a witness claims memory loss about the subject of the questioning. [Citations.]" (Cowan, at p. 463.)

7 "Evidence Code section 1235 provides: 'Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.' Evidence Code 770 in turn provides: 'Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: [¶] (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [¶] (b) The witness has not been excused from giving further testimony in the action.' " (People v. Cowan (2010) 50 Cal.4th 491, 462, fn. 19 (Cowan).)

We review a ruling under Evidence Code section 1235 for abuse of discretion (Cowan, supra, 50 Cal.4th at p. 462), and no abuse appears. Defendants urge in a reply brief: "There was no foundation that Hudson's [sic] lack of memory was either feigned (cf. Evid. Code, § 1235 [inconsistent statement]) or that specific questions asked of [him] showed inconsistency (see, e.g., Evid. Code, § 770)." But the point is both unelaborated and frivolous on this record. Anthony's convenient lack of memory of anything that might remotely incriminate either defendant—yet memory of the crowd gathering afterward, actions and directions by ambulance and police personnel, and his own visit that night with Ogden in the hospital—was inconsistent in effect with his detailed police statement. More specifically, he reviewed his statement (by tape and transcript) before he testified, was asked about dozens of facts from it, and then was read nine excerpts from it on the stand, before the prosecutor moved to admit the statement and the court ruled to do so. Anthony claimed no memory of anything remotely incriminating either defendant, even their presence there that night. A witness's prior statements are admissible so long as there is "a reasonable basis in the record for concluding that [his] 'I don't remember' statements are evasive and untruthful . . . ." (People v. Johnson (1992) 3 Cal.4th 1183, 1219-1220; People v. Perez (2000) 82 Cal.App.4th 760, 764 (Perez).) Deferring to the trial court, and especially its position to assess Anthony's demeanor while testifying, we have ample basis for concluding that Anthony's memory lapses were feigned.

Defendants obliquely suggest that the court should have admitted less than the whole statement since Evidence Code section 1235 " 'does not permit the wholesale admission into evidence of entire works in which a statement appears.' " (Quoting and citing Benson v. Honda Motor Co. (1994) 26 Cal.App.4th 1337, 1349.) However, they forfeited this contention below by failing to raise it there (Seijas, supra, 36 Cal.4th at p. 301), and forfeit it again here by failing to suggest what should have been excluded or, legally, why (People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2).

Defendants' constitutional claim concedes that state law allows admission of a prior statement by a witness feigning memory loss and notes further that, under People v. Alcala (1992) 4 Cal.4th 742, 778-780 (Alcala),feigned memory loss also qualifies as a " 'mental . . . infirmity' " supporting unavailability (Evid. Code, § 240, subd. (a)(3)) so as to admit a witness's prior testimony (id., § 1291, subd. (a)(2). Urging that Anthony's statements in response to police questioning were "testimonial" so as to trigger federal confrontations rights under Crawford (Crawford, supra, 541 U.S. at p. 51), defendants fuse these concepts to contend that "Alcala must be reexamined in light of Crawford['s]" requirement of an adequate prior opportunity to cross-examine. We disagree.

Defendants' fusion of concepts confuses them. A witness deemed unavailable so as to allow the admission of his testimony from a prior proceeding might not testify at all in the current proceeding (People v. Thomas (2011) 51 Cal.4th 449, 499-500), whereas "Evidence Code sections 1235 and 770 . . . permit admission of inconsistent statements made by a witness who actually testifies at the proceeding" (People v. Blacksher (2011) 52 Cal.4th 769, 806). Also: "[Their] argument erroneously equates confrontation with a cross-examination which is effective from a defense point of view. This is not what the constitutional right to confront witnesses requires." (Perez, supra, 82 Cal.App.4th at p. 765.)

As a post-Crawford Court of Appeal decision explains in rejecting an argument that professed total lack of memory must be equated with lack of opportunity for cross-examination, the federal high court's pre-Crawford decision in United States v. Owens (1988) 484 U.S. 554 (Owens)is controlling: "The circumstance of feigned memory loss is not parallel to an entire refusal to testify. The witness feigning memory loss is in fact subject to cross-examination, providing a jury with the opportunity to see the demeanor and assess the credibility of the witness, which in turn gives it a basis for judging the prior hearsay statement's credibility. '[W]hen a hearsay declarant is present at trial and subject to unrestricted cross-examination . . . the traditional protections of the oath, cross-examination, and opportunity for the jury to observe the witness' demeanor satisfy the constitutional requirements.'⁸ (People v. Owens, supra, 484 U.S. at p. 560.) In the face of an asserted loss of memory, these protections 'will of course not always achieve success, but successful cross-examination is not the constitutional guarantee.' (Ibid.)"(People v. Gunder (2007) 151 Cal.App.4th 412, 420 (Gunder).)Our state Supreme Court has confirmed what Gunder implies. Rejecting an argument that there can be no constitutionally effective cross-examination when a witness cannot recall the facts related to the hearsay statement, the court quoted Owens and concluded, "[n]othing in Crawford casts doubt on the continuing vitality of Owens." (Cowan, supra, 50 Cal.4th at p. 468.)

8 Defendants do not complain of any restriction of cross-examination by the trial court in this case, and this readily distinguishes a federal case they cite. (U.S. v. Wilmore (9th Cir. 2004) 381 F.3d 868, 872-873 [trial court unduly limited exploration of hearsay declarant's motivations for grand jury testimony].)

Assuming without deciding that Anthony's statement to police in this case was testimonial under Crawford (criteria discussed in People v. Blacksher, supra, 52 Cal.4th at pp. 811-814), no constitutional error appears in admitting the statement.

V. Accomplice Instructions Regarding Nero

The court noted for the record during the settling of instructions that defendants had requested, but then "withdrew" their request, for accomplice instructions under CALJIC Nos. 3.11, 3.16, 3.18 and 3.19, and thus, none were given. Defendants now contend that the court prejudicially erred by not giving the instructions, on its own motion, because Lawrence Nero was an accomplice. We reject the contentions, which focus on failure to instruct that an accomplice's testimony should be viewed with caution (CALJIC No. 3.18) and must be corroborated (CALJIC Nos. 3.11 & 3.12).

The issue is not cognizable because any error was invited by withdrawal of the requested instructions. We infer a tactical purpose from that defense action (e.g., People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49; People v Brown (2003) 31 Cal.4th 518, 560; People v. Lewis (2001) 25 Cal.4th 610, 667), and the record supports both a legal and tactical basis for the decision.

Accomplice instructions, as both defense counsel presumably knew, apply to principals in a crime, including those who act with guilty knowledge and an intent to further the crime (aiders and abettors), but not mere accessories. (People v. Lewis (2001) 26 Cal.4th 334, 368-369; People v. Williams (1997) 16 Cal.4th 153, 225; § § 31 & 1111.) While accomplice status is often a question of fact for the jury, no instruction is required unless the trial evidence would warrant the jury in concluding that the witness was an accomplice. (People v. Hayes (1999) 21 Cal.4th 1211, 1270-1271.)

Having requested accomplice instructions but finding themselves at the close of evidence with nothing but speculation that Nero was anything more than a passenger in the car during the events leading to and comprising the murder, counsel had good reason to withdraw the request. Neither defendant testified, which left Nero as the sole witness to what was said and done in the car leading to the confrontation. Nero claimed to be present for the tiff between Stroman and Casteele, Ogden's intercession, Stroman's drive away, Varner's entering the car with the guns and passing the .25 automatic to Stroman, Stroman's return to the scene and tailing of the car in which Casteele and Ogden rode, Ogden's leaving the other car, and both defendants' armed assaults on him. Nothing in Nero's account suggested that he urged getting the guns, going after or assaulting Ogden, or that he facilitated the events through his own actions. According to Nero, he only left the car to get between Stroman and Ogden and keep them from fighting at their initial encounter. Nero was not the one to whom Varner passed the .25 automatic, and he watched the ensuing fatal encounter from the car. Even if, as Stroman suggests, jurors were willing to credit DaMaris Mata's aberrant account of four men leaving the car to approach Ogden, this did not show that Nero instigated, encouraged or assisted the attack. Mata clarified that she did not know or recognize any of the four people, and never saw any of them lay a hand on Ogden. It is also immaterial that, as Stroman stresses, police arrested Nero on suspicion of being an accessory (§ 32) to the murder. Accomplice instructions are not needed for accessories (People v. Lewis, supra, 26 Cal.4th at pp. 368-369), and we assess the need for trial instructions by the trial evidence, not speculation about the suspicions of arresting officers years before trial.

While the lack of evidentiary support was a legal reason for withdrawing the instruction request, there was also the strategic reality that the instructions could be a pointless distraction. The overall evidence against defendants was clearly sufficient for corroboration. " 'Such evidence "may be slight and entitled to little consideration when standing alone." [Citations.] . . . . It is only required that the evidence " ' "tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the [accomplice] is telling the truth." ' " ' [Citation.]" (People v. Sanders (1995) 11 Cal.4th 475, 535.) And it need not corroborate every fact to which the witness testifies. (People v. Davis (2005) 36 Cal.4th 510, 543.) Nor was there much need for instruction on viewing Nero's testimony with caution. The most often cited rationale for the caution is that an accomplice usually testifies in the hope of favor or in an expectation of immunity, and that need is adequately conveyed where the jury is directly informed of any such inducement. (People v. Hinton (2006) 37 Cal.4th 839, 881 [immunity granted to witness].) Here, Nero testified in custodial garb and told the jury up front that he was awaiting sentencing in a drug case. This raised a strong inference of expected favor, without the caution instruction.

There was also value in Nero's testimony for both defendants, so that their counsel could reasonably feel it was better not to impose burdens on the jury's consideration of his account. Nero's inconsistencies provided ample fodder for attacking whatever parts each defendant found the most damaging, and neither defendant would be strategically well served by instructing the jury to distrust everything he said. Varner in particular could revel in Nero's explanation that he lied in police statements about seeing Varner shoot at Ogden because, being unfamiliar with the law and not yet 18 years old, he felt pressure to go along with his examiner and say whatever it took to end the interviews. Voluntary intoxication instruction would propose that neither defendant actually formed specific intents or other mental states, and Nero testified that he was high on alcohol, marijuana and Ecstasy during the crimes, and that defendants were also intoxicated. Varner, he said, drank "[a] few pints" of "Remy" (apparently meaning Remy Martin cognac), smoked "[a] lot" of "weed," and took Ecstasy throughout that day, and Stroman took Ecstasy and drank Remy. Nero said that there was never any discussion in the car about hurting Ogden, another nice boost for both defendants. He also recounted the intensity of the arguments between Stroman and Casteele, and then between Stroman and Ogden, potentially fueling defense instruction on heat-of-passion manslaughter, an avenue away from murder. Nero, a longtime friend of Ogden's, testified that he had seen Ogden with guns before. With neither defendant testifying, these firsthand accounts were strategically vital.

Defendants accordingly invited any error in not giving accomplice instructions. This conclusion leaves no reason to assess prejudice or consider Varner's invitation, ambitious in light of our subsidiary place in the appellate hierarchy (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) to mutiny against a venerable line of Supreme Court authority that tests prejudice by whether sufficient corroborating evidence existed at trial (see, e.g., People v. Sanders, supra, 11 Cal.4th at pp. 534-535; People v. Miranda (1987) 44 Cal.3d 57, 100; People v. Washington (1969) 71 Cal.2d 1061, 1092-1093) rather than by expressly employing the Watson standard (People v. Watson (1956) 46 Cal.2d 818, 836) for prejudice (see, e.g., People v. Rodriguez (1994) 8 Cal.4th 1060, 1132; People v. Heishman (1988) 45 Cal.3d 147, 163-164).

VI. Misconduct in Arguing the Law of Manslaughter

Defendants claim denial of their state and federal constitutional rights to a fair trial by prosecutorial misconduct in rebuttal argument and a court ruling denying Stroman a chance to address the issue with surrebuttal argument. We find no misconduct or error in the ruling.

They complain of these remarks by prosecutor Connie Campbell on heat-of-passion manslaughter: "[In w]hat kind of case might it apply? Well, the standard case where it does apply, or standard example, is where you have a person—for example there is a dad, and he is at home. His seven-year-old daughter is upstairs playing in her room. The doors are locked. He is outside doing his gardening. [¶] He hears some noise. He goes inside the house and he still has the shears with him. He goes upstairs and he could hear his daughter crying. He takes the shears and he's [l]ike, 'What's wrong, Janie?' [¶] He goes inside and he sees his daughter completely naked. She's crying, and there is a man on top of her—a complete stranger raping a seven-year-old child. And he takes those shears, and he stabs that guy and he kills him. [¶] That is the extreme case where society will say you're still wrong for killing that person. You're still wrong for killing that person, but a reasonable person in those circumstances might have acted the same way. [¶] The key—there's two keys to whether or not heat of passion applies, and again I'm not spending a lot of time on it, because it doesn't apply to this case and it definitely absolutely does not apply to Terrance Varner."

No objection or request for admonishment was made then, but over 50 transcript pages later, after Campbell had finished her rebuttal argument and the jury had left for a noon recess, Stroman's counsel, Spencer Strellis, protested: "The example she gave, stabbing someone in the process of raping your seven-year-old daughter, it would not be manslaughter. It would be not guilty at all, stopping a felony dangerous to human life. And she put that out as the average sort of thing. [¶] And under the circumstances she did not bring up manslaughter in her opening argument, and then in closing argument, to use a[n] improper example where I have no right to rebut. I consider it to be improper, and I ask leave to reopen my remarks for that narrow subject."

Invited by the court to respond, Campbell said it was a commonly used example, not improper, and objected to Strellis being able to "now single out" her remarks to raise "facts that aren't relevant to this case." The court denied the defense request as untimely, adding that, "if it were considered to be inappropriate," the argument could have been dealt with by admonition had a timely objection been made.

Stroman, joined by Varner, does not try to defend trial counsel's view that Campbell's example did not constitute manslaughter, but argues that it was misconduct, was prejudicial, and was not forfeited because a timely objection and admonition could not have cured the harm. We disagree on all three points.

We see nothing in Campbell's example that misrepresented heat-of-passion manslaughter or distorted the given jury instructions.⁹ Defendants seem to complain that calling the example "the extreme case" allowed by the law was too narrow. But while that might be true if Campbell stressed the word "the," as if say it was the sole instance allowed by the law, we cannot know from the cold record that she placed stress on that word. Moreover, her remark just before giving the example, that this was the "standard example," certainly dispelled any such impression, in the full context, by clarifying that this was just one, standard example.

9 The heart of the instruction, from CALJIC No. 8.42, was this: "To reduce an unlawful killing from murder to manslaughter upon the ground of sudden quarrel or heat of passion, the provocation must be of the character and degree as naturally would excite and arouse the passion, and the assailant must act under the influence of that sudden quarrel or heat of passion. [¶] The heat of passion which will reduce a homicide to manslaughter must be a passion as naturally would be aroused in the mind of an ordinarily reasonable person in the same circumstances. A defendant is not permitted to set up his own standard of conduct and to justify or excuse himself because his passions were aroused unless the circumstances in which the defendant was placed and the facts that confronted him were such as also would have aroused the passion of the ordinarily reasonable person faced with the same situation . . . ."
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We also must view claimed misstatements of the law in full context (Boyde v. California (1990) 494 U.S. 370, 384-385), and Campbell's remarks were far more extensive than what defendants quote. They also quote without acknowledging that Campbell was responding to argument by Stroman's counsel, Strellis. Strellis had urged that Casteele's putdown of Stroman soon after the end of their "hot affair" was adequate provocation, and Strellis also impugned Campbell's integrity for her saying "not one word" about manslaughter in opening remarks, assertedly so she could wait until rebuttal, when Strellis would not have "any chance to answer her . . . ."

Unacknowledged in defendants' briefing are these remarks by Campbell before what they quote: "The reason [manslaughter] doesn't apply in this case is because you don't get to have a fight with your girlfriend and then use that as an excuse later to kill somebody; because otherwise everybody that has a fight with their girlfriend or boyfriend would be allowed in this society to say that they had a quarrel, they still were upset about it, they were in the heat of that passion, and then get to go out and kill somebody. That's not what the law says. [¶] What the law about heat of passion says is that there are certain circumstances, there are certain situations that, where you murder somebody, you are going to have to be responsible for that death. You absolutely have to be responsible, but society is going to say that we understand why a reasonable person might have acted in the same manner that you did." Cautioning jurors that the instructions would involve more that just what was suggested by the title words, "sudden quarrel, heat of passion," Campbell explained, "What is required in order to for society to accept that a reasonable person would have acted that same way, it has to be pretty extreme, and that is not this case." Those remarks show that Campbell was not urging that her ensuing example would be the only one recognized under the law, just that the law required more than what Strellis had proposed.

Campbell's remarks, in context, did not misstate the law. Indeed, she went on to say that the issue was not what went on between Stroman and Casteele, but between Stroman and Ogden. She was correct. " 'The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citations], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.]" (People v. Moye (2009) 47 Cal.4th 537, 549-550.) Campbell explained: "Mr. Strellis came here this morning and spent a lot of time talking about this break-up with Slim; that Slim was standing out in the road yelling things at Wookie, getting him all upset. [¶] Okay. Slim was doing that. Then, why are you killing Clarence? Clarence is not the person who is doing the provocation. [¶] You see why heat of passion does not apply. You don't get to say that you are mad about your girlfriend and go kill another person. For heat of passion to apply, it has to be the perpetrator [sic] that's causing the stirring of the passion." She added: "[T]he most important thing[] is that a reasonable person would have acted the same way. And I defy you to say that a reasonable person would have shot an unarmed man in the back because he had disrespected him on the street. That's impossible. A reasonable person would not have done that."

We discern no reasonable likelihood that the jury applied any of the complained-of remarks in an objectionable fashion. (People v. Berryman (1993) 6 Cal.4th 1048, 1072.) Moreover, anything at all misleading about the law could easily be corrected effectively through a timely objection and admonition. This is because instructions from the court are generally "viewed as definitive and binding statements of the law. [Citations.] Arguments of counsel which misstate the law are subject to objection and to correction by the court. [Citation.] This is not to say that prosecutorial misrepresentations may never have a decisive effect on the jury, but only that they are not to be judged as having the same force as an instruction from the court." (Boyde v. California, supra, 494 U.S. at pp. 384-385.) Defendants' failure to timely object and seek an admonition accordingly forfeited the issue for appeal. (People v. Williams (1997) 16 Cal.4th 153, 220-221 [lack of objection waived (forfeited) claims including misstatement of the law].)

As for the court denying the request for defense surrebuttal to counter Campbell's example, no abuse of discretion or other error appears. First, there was no prosecutorial misconduct to counter. Second, this was not, as defendants characterize it, a ruling that deprived them of the opportunity to present a defense. They had ample opportunity to do so, and Strellis certainly tried, albeit on a flawed legal premise, to argue heat-of-passion manslaughter for Stroman. Varner's trial counsel did not make that argument, and his appellate counsel does not offer any factual support for it from the trial evidence. But his theory is that, had the jury convicted Stroman of manslaughter, it might have convicted him of the same crime based on supplying Stroman with a gun "but not intending Mr. Ogden's death." Absent evidence below on which to make a heat-of-passion argument as to himself, however, we do not see how Varner would have had any right to offer surrebuttal for himself. And so we need not explore his theory further than to note that it depends entirely on, and thus falls with, Stroman's appellate claim.

VII. False-Statement Instruction

The jury was instructed, from CALJIC No. 2.03: "If you find that before this trial a defendant made a willfully false or deliberately misleading statement concerning the crime for which he is now being tried, you may consider that statement as a circumstance tending to prove a consciousness of guilt. However, that conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are for you to decide." The factual basis, as argued to the jury, was that both defendants had fled Oakland after the shooting and lived under assumed names. Varner went to Kentucky, where he lived as Lamont Jones, and Stroman went to Sacramento, where he was known as Jamario Parker. Also given, as allowing a guilt inference at least in part from each defendant's flight from Oakland, was CALJIC No. 2.52 (Flight After Crime).

The flight instruction is unchallenged, but Stroman (not joined by Varner) claims the false-statement instruction lacked adequate evidentiary support. The evidence as to Stroman was that, when Oakland police arrested him on a warrant in this case on March 2, 2005—about 11 months after the killing—he was being held in custody in Sacramento under the name Jamario Parker. The instruction, of course, had to be supported by sufficient evidence (People v. Green (1980) 27 Cal.3d 1, 40), meaning that the suggested guilt inference had to be one that reason and common sense justified in light of the proven facts before the jury(People v. Ashmus (1991) 54 Cal.3d 932, 977).

Stroman argues that, since there was no evidence of how he came to be held in Sacramento under a different name or whether he personally did anything to create the false identity, there was insufficient evidence for a juror to reasonably infer that he made a false statement in order to avoid detection in this case. The Attorney General urges that it was logical for a juror to infer either that Stroman lied about his identity to avoid being returned to Alameda County to face charges in this case or, if authorities in Sacramento came up with the wrong name on their own, Stroman found it convenient not to correct the mistake and risk facing the charges here. We agree with the Attorney General that there was a sufficient basis to give the instruction.

But even if that basis had not existed, Stroman could not show prejudice on this record. Like other pattern instructions allowing guilt inferences, CALJIC No. 2.03 tells jurors, in effect, that they might not find facts supporting a guilt inference and expressly tells them that, if they do, the inference alone is not sufficient proof of guilt, and that its weight and significance—if any—are for them to decide. (People v. Jurado (2006) 38 Cal.4th 72, 125-126; People v. Stitely (2005) 35 Cal.4th 514, 555.) "At most," in other words, "the instruction was superfluous." (People v. Crew (2003) 31 Cal.4th 822, 849.) Beyond being given the self-limiting language of CALJIC No. 2.03, this jury was also instructed: "Whether some instructions apply will depend upon what you find to be the facts. Disregard any instruction which applies to facts determined by you not to exist. [¶] Do not conclude that because an instruction has been given, I am expressing an opinion as to the facts." (CALJIC No. 17.31.) No prejudice appears.

VIII. Cumulative Prejudice

Each defendant asks that we assess whether his claims of error, if not prejudicial individually so as to warrant reversal of the murder conviction and section 12022.53(d) enhancement, are cumulatively so (People v. Jurado, supra, 38 Cal.4th at p. 127), but there is no such prejudice. What errors we have found, assumed for sake of argument, or discussed despite forfeiture, were harmless under any standard, and their combined effect (even if deemed not forfeited) is not significantly different.

DISPOSITION

The judgments are affirmed.

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Kline, P.J.
We concur: ______________
Haerle, J.
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Richman, J.