P. v. Rocha

Filed 9/12/17 P. v. Rocha CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
ARMANDO ROCHA et al.,
Defendants and Appellants.
B270706
(Los Angeles County
Super. Ct. No. BA409258)
APPEAL from judgments of the Superior Court of Los
Angeles County, Jose I. Sandoval and Robert Perry, Judges.
Affirmed.
Joshua L. Siegel, under appointment by the Court of
Appeal, for Defendant and Appellant Armando Rocha.
Jeralyn Keler, under appointment by the Court of Appeal,
for Defendant and Appellant Javier Trujillo.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant

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Attorney General, Paul M. Roadarmel, Jr., David A. Wildman
and David Glassman, Deputy Attorneys General, for Plaintiff and
Respondent.
______________________________
Armando Rocha and Javier Trujillo appeal from their
judgments of conviction of first degree murder, with gang and
firearm use enhancements. Rocha argues the court incorrectly
instructed the jury that exculpatory testimony by an accomplice
required corroboration. He also argues the prosecutor engaged in
misconduct in rebuttal. Trujillo challenges the introduction of
evidence of prior bad acts and the lack of a limiting instruction on
the use of such evidence. He also challenges an in-court
identification of him as a person armed with a gun during an
uncharged robbery and a witness’s opinion about his gang
membership. Both appellants ask us to review the sealed record
of the in camera hearing held on a discovery request, and both
argue cumulative error. We find no error requiring reversal and
affirm the judgments.
FACTUAL AND PROCEDURAL SUMMARY
Appellants are members of the Rose Hills gang, which
operates in the area of the Rose Hills housing project in Los
Angeles. Rocha is an older gang member, who uses the moniker
“Giant” and has visible gang-related tattoos, including a “Rose
Hill” tattoo on his neck. Trujillo is a younger recruit, known as
“Sparks” or “Sparky.”

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On the evening of January 13, 2013, appellants, in the
company of Oscar Garcia and Richard Garcia1 (a Rose Hills gang
member known as “Malo”), threatened several individuals at the
housing project. Trujillo carried a gun, which he had shown
Rocha earlier that day. Ariana Rebollar noticed the men when
fresh graffiti appeared under her window. She continued to
watch them throughout the evening and took photographs on her
cell phone. Oscar identified Trujillo as the man wearing shorts
in one photograph, and Rocha as the man with a stripe on his
clothing. Witnesses also identified Trujillo as the man with the
gun who wore a beanie or a knit hat with braids.
The four men approached Christian Garcia and his wife,
and Trujillo pointed the gun at them. He asked Christian where
he was from, and announced: “It’s my gang. It’s my hood. . . . [¶]
This is Rose Hills gang.” Rocha, who knew Christian, told
Trujillo: “Don’t shoot him. . . . That’s the homie.” The situation
was diffused, and Trujillo and Christian shook hands.2
The men also approached Luis Quezada, whose car radio
was loud. Rocha introduced himself as “Giant from Rose Hills,”
demanded to know who Quezada was, and told him to turn down
1 For concision and clarity, individuals whose surname is
Garcia are referred to by their first name.
2 Christian did not originally identify Trujillo as the person
who pointed the gun at him and his wife, and did so only after
having seen appellants in custody. At trial, Oscar testified that
“Malo and Giant . . . disrespect[ed]” Christian, and that Trujillo
was to the side. Oscar could not recall if Trujillo displayed the
gun.

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the volume. Oscar explained Quezada was “cool” because he lived
in the housing project, and that appeared to calm Rocha down.
Trujillo stopped a van driven by Gonzallo Maravilla, a AAA
locksmith who had been called to start up Samuel Arenivar’s car.
Trujillo approached the passenger’s side of the van, opened the
door, and pointed the gun at Maravilla. He asked Maravilla
where he was from and announced this was “Rose Hills.” He
then asked Maravilla for money, threatened to kill him, took
Maravilla’s company cell phone, and told him to go.3
Rebollar observed appellants briefly approach an elderly
couple. Trujillo was holding something in his pocket. Rebollar
heard Rocha tell him, “Not them. They’re seniors,” before both
turned around.
At about 7:30 p.m., appellants and their cohorts
surrounded the car of 17-year-old victim Fred Munguia, who had
visited his girlfriend in the project.4 Munguia was not a gang
member. Rocha stepped in front of the car and walked to the
passenger’s side.5 Trujillo went to the driver’s side, asked
3 Maravilla described his assailant as a Hispanic man
weighing about 160 pounds; 5 feet, 6 inches tall; chubby; with a
thin mustache; and wearing a knit hat. Although he could not
pick Trujillo from a six pack and in a lineup, during a break at
trial Maravilla volunteered that he recognized Trujillo and was
allowed to identify him in court. Oscar testified that Malo had
stopped Maravilla’s van, but he had earlier told detectives he did
not remember the robbery.
4 In parts of the record, the victim is referred to as Freddy
Mungia.
5 At trial, Oscar’s testimony about the shooting was
consistent with that of the other two eyewitnesses, Rebollar and

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Munguia where he was from, told him to lift his shirt, and
started shooting. Nine casings fired from the same gun were
recovered from the scene. The car was hit seven times, and
Munguia died of four gunshot wounds.
After the shooting, Rocha and Oscar went to Christian’s
apartment. Rocha told Christian that “his homie shot some
dude.” Rocha and Oscar were arrested and interviewed, and a
fugitive search was conducted for Trujillo, who eventually was
arrested in Georgia.6
Appellants were charged with the murder of Munguia (Pen.
Code, § 187, subd. (a)),7 with gang and firearm use allegations.
(§§ 186.22, subd. (b)(1)(C)), 12022.53, subds. (b)-(e).) Personal use
and intentional discharge of a firearm causing death was alleged
as to Trujillo. (§ 12022.53, subds. (b)-(d)). One prior serious
felony, also a strike conviction, was alleged as to Rocha. (§ 667,
subds. (a)(1) & (b)-(j), 1170.12.)
Oscar pleaded to being an accessory after the fact, and was
given immunity to testify at trial in exchange for time served. He
testified he had felt threatened by appellants while in custody
and had to be housed away from them. In response to a
hypothetical based on the facts of this case, officer Rivera, the
Arenivar. All testified Rocha stopped Munguia’s car. However,
Oscar had told the detectives that Trujillo alone had stopped
Munguia’s car, that Rocha had not been around the car, and that
after the shooting Rocha had said he did not know what was
wrong with Trujillo.
6 Trujillo’s girlfriend testified they had decided to move to
Georgia because of the lower cost of living there.
7 Unless otherwise indicated, statutory references are to
the Penal Code.

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gang expert, opined that the murder and the confrontations that
preceded it were for the benefit of the Rose Hills gang.
The jury convicted appellants of first-degree murder and
found the gang and firearm use allegations to be true. The court
found the prior serious felony allegation as to Rocha to be true.
Rocha was sentenced to 80 years to life in prison, consisting of 25
years to life for the murder conviction, doubled, plus 25 years to
life for the gun use enhancement, and a five-year enhancement
under section 667, subdivision (a)(1). No term was imposed for
the gang enhancement. Trujillo received a sentence of 50 years
to life, consisting of 25 years to life for the murder, plus another
25 years to life for the gun use enhancement, with a 15-year
parole eligibility under the gang enhancement. Appellants were
given custody credits and assessed various fines and fees.
This appeal followed.
DISCUSSION
I
Rocha challenges CALCRIM No. 301, as given, and a
portion of the prosecutor’s rebuttal.
A. CALCRIM No. 301
The trial judge, Robert Perry, instructed the jury with a
modified version of CALCRIM No. 335 that stated Oscar was an
accomplice, and appellants could not be convicted of murder on
his testimony unless it was supported by other evidence, however
slight. The instruction further told the jury to be cautious of any
accomplice testimony that tended to incriminate appellants. On
the other hand, CALCRIM No. 301, as modified, told the jury
that the testimony of a single witness could prove any fact
“except for the testimony of Oscar Garcia, which requires

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supporting evidence. . . .”
Rocha argues that these two instructions created the
impression that even exculpatory accomplice testimony had to be
corroborated, depriving him of the benefit of Oscar’s prior
inconsistent statements to detectives that Rocha had not stopped
Munguia’s car, was not around the car at the time of the
shooting, and later had said he did not know what was wrong
with Trujillo.8
We review claims of instructional error de novo. (People v.
Manriquez (2005) 37 Cal.4th 547, 581.) “[T]he correctness of jury
instructions is to be determined from the entire charge of the
court, not from a consideration of parts of an instruction or from a
particular instruction.” (People v. Young (2005) 34 Cal.4th 1149,
1202, internal quotations and citations omitted.) We presume
the jurors are intelligent persons, capable of understanding and
correlating the instructions. (People v. Ramos (2008) 163
Cal.App.4th 1082, 1088.) The instructions “‘should be
interpreted, if possible, so as to support the judgment rather than
defeat it if they are reasonably susceptible to such interpretation.’
[Citation.]” (Ibid.) If an instruction appears “‘ambiguous, we
inquire whether there is a reasonable likelihood that the jury
misunderstood and misapplied the instruction.’ [Citations.]”
(Young, at p. 1202.) The arguments of counsel bear on “the
probable impact of the instruction on the jury. [Citations.]”
(Ibid.)
8 Contrary to Rocha’s representation, Oscar did not say that
Rocha was not telling Trujillo what to do. Rather, Oscar said he
did not know because “they had their conversations . . . a little
distance from me.”

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Rocha concedes that CALCRIM No. 335, as given, correctly
instructed the jury that only incriminating accomplice testimony
required corroboration. But he contends that CALCRIM No. 301
left the impression that all of Oscar’s testimony had to be
corroborated. The two instructions, read together, are reasonably
susceptible to an interpretation that would support the judgment.
Since CALCRIM No. 301 did not specifically mention exculpatory
evidence, it did not create an irreconcilable conflict with
CALCRIM No. 335, and the latter instruction may reasonably be
interpreted to limit the scope of the former. (Cf. People v. Jeter
(2005) 125 Cal.App.4th 1212, 1217 [irreconcilable conflict where
some instructions required general intent and others specific
intent for malice element of assault].)
In a supplemental letter, Rocha’s counsel draws our
attention to a recent case, People v. Smith (2017) 12 Cal.App.5th
766. In that case, a reversible instructional error was found on a
record that showed the jury sent a note during deliberations
indicating it was considering an accomplice’s exculpatory trial
testimony regarding the defendant, and only one juror believed
the testimony did not require corroboration. That juror was
dismissed. The record affirmatively showed that both the trial
court and the jury actually were under the mistaken impression
that all testimony by an accomplice (including exculpatory
testimony) needed corroboration. (See id. at p. 782–784 & fn.
10.) There is no indication that the jury in this case considered
Oscar’s statements to the detectives to be exculpatory but
rejected them for lack of corroboration.
The accomplice’s trial testimony in Smith, supra, 12
Cal.App.5th 766 was clearly exculpatory of the defendant. (Id. at
pp. 777, 781.) Oscar’s trial testimony was not exculpatory of

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Rocha, and contrary to Rocha’s representation, his defense did
not center on Oscar’s statements to the detectives. Rocha claims
that his defense “relied heavily on Oscar’s exculpatory
statements,” citing to his trial counsel’s closing argument that
“Oscar Garcia himself told you that it wasn’t my client that
stopped the car, it was Malo. Oscar Garcia was the closest
person to see that and he said Malo stopped the car, not my
client.” This portion of trial counsel’s argument contains an
apparently erroneous reference to Oscar’s trial testimony
regarding the stopping of Maravilla’s van, in which Oscar
implicated Richard, also known as Malo. Rocha was not
implicated in the stopping of the van since Maravilla identified
Trujillo, not Rocha, as his assailant. Rocha’s trial counsel did not
refer to the interview with the detectives, in which Oscar had
said that Trujillo, also known as Sparky, alone had stopped
Munguia’s car.
Rocha also cites to his trial counsel’s insinuation that the
prosecutor had urged the jury to “ignore Oscar,” its main witness.
Trial counsel’s statement did not fairly represent the prosecutor’s
closing argument. The prosecutor told the jurors they could
credit Oscar’s entire testimony or reject it, which was consistent
with the instruction under CALCRIM No. 226 that they could
“believe all, part, or none of any witness’s testimony.” The
prosecutor maintained that Oscar was generally believable
despite the inconsistencies in his testimony. She did not mention
the portions of Oscar’s interview with the detectives on which
Rocha relies on appeal, and did not suggest that any exculpatory
statements by Oscar needed to be corroborated. Rather, the
prosecutor relied on Oscar’s trial testimony, which (consistently

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with the testimony of Rebollar and Arenivar) placed Rocha in
front of Munguia’s car.
In short, Rocha has not shown that the exculpatory
statements on which he relies on appeal were central to his
defense at trial, or that either the court or the prosecution misled
the jury to ignore those statements as uncorroborated by other
evidence. Nor are we convinced by Rocha’s argument that any
potential ambiguity in CALCRIM No. 301, as given, is
comparable to the clearly erroneous instruction in Cool v. U. S.
(1972) 409 U.S. 100. In Cool, the jury was unambiguously
instructed to ignore exculpatory testimony of an accomplice
“unless it believes beyond a reasonable doubt that the testimony
is true.” (Id. at p. 100.) Here, CALCRIM Nos. 301 and 335, when
read together, do not instruct the jury to disregard exculpatory
evidence. On the record before us, there is no reasonable
likelihood the jury misapplied CALCRIM No. 301; hence, we find
no reversible instructional error.
B. The Rebuttal
Rocha argues the prosecutor committed misconduct when
she said in rebuttal: “[W]e have this saying. It’s kind of among
attorneys that do this criminal work. And one of it is, you know,
when you’re in a criminal case like this and you’re in trial and
you get in there and you’re standing in front of a jury, you want
to argue . . . first of all, if you’re in there and you’re thinking, all
right. The law is on your side, you’re going to really start arguing
the law and you’re going to disregard the facts; right? [¶] And
then if it’s the opposite, you think the facts are really on your
side, then you get up and you argue those facts, but you stay
away from the law; right? You don’t get into that because that’s
not on your side. But when both the facts and the law are not on

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your side at all, then you get up and you start attacking the
prosecutor. And when you hear argument—”
At this point, an objection by Rocha’s counsel was
overruled, and the prosecutor continued: “—about what the D.A.
asked and didn’t ask and the smoke and mirrors and these
misconceptions, you’ve got to be very careful because now what
he’s doing is attacking really me and the case and he’s not really
getting everyone focused on the point. He’s trying to make you
all believe it wasn’t his client. That’s his argument.” The
prosecutor then told the jury to focus on the evidence “as it came
out” at trial.
Rocha argues the prosecutor suggested his defense counsel
was aware the facts and the law did not support his position but
tried to “trick the jury . . . by attacking the prosecutor instead,”
implying that even defense counsel knew Rocha was guilty.
Where a claim of misconduct rests on the prosecutor’s comments
to the jury, “‘the question is whether there is a reasonable
likelihood that the jury construed or applied any of the
complained-of remarks in an objectionable fashion.’ [Citations.]”
(People v. Cole (2004) 33 Cal.4th 1158, 1202–1203.)
What Rocha fails to acknowledge is that the prosecutor’s
comments were made in rebuttal to the closing argument of
Trujillo’s counsel, who had stated: “The People are trying to
prove this case using smoke and mirrors. I’m sure you’ve all seen
magicians who have made things disappear right in front of your
eyes. They have you looking over here while they do something
over here. It’s called misdirection. That’s what the People are
doing in this case. And as I get into my argument, I’ll point out
to you how I believe that they’re using misdirection to try to
prove my client guilty.” Trujillo’s counsel repeatedly accused the

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prosecutor of not asking witnesses questions relevant to the
identification of his client as the shooter, and closed his argument
with a parable about a wolf. The prosecutor repeatedly objected,
and her references to “smoke and mirrors,” “what the D.A. . . .
didn’t ask,” and “who’s the wolf” in rebuttal were direct
quotations from the argument of Trujillo’s counsel, whom she
also mentioned by name.
The issue Rocha raises has been described as “an all too
common occurrence in criminal trials—the defense counsel
argues improperly, provoking the prosecutor to respond in kind,
and the trial judge takes no corrective action. Clearly two
improper arguments—two apparent wrongs—do not make for a
right result. Nevertheless, a criminal conviction is not to be
lightly overturned on the basis of a prosecutor’s comments
standing alone, for the statements or conduct must be viewed in
context; only by so doing can it be determined whether the
prosecutor’s conduct affected the fairness of the trial. To help
resolve this problem, courts have invoked what is sometimes
called the ‘invited response’ or ‘invited reply’ rule . . . .” (U.S. v.
Young (1985) 470 U.S. 1, 11.)
“It is settled that ‘even otherwise prejudicial prosecutorial
argument, when made within proper limits in rebuttal to
arguments of defense counsel, does not constitute misconduct.’
[Citatios.]” (People v. Mendibles (1988) 199 Cal.App.3d 1277,
1313.) The prosecutor’s brief commentary on the tactics of
defense counsel did not constitute an egregious pattern of conduct
that violated due process. (See People v. Gionis (1995) 9 Cal.4th
1196, 1214-1218.) On similar facts, in People v. Breaux (1991) 1
Cal.4th 281, the court found it was not misconduct to refer to a
law school trial tactics class where students are taught that if

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they do not have either the law or the facts on their side, they
should “‘try to create some sort of a confusion with regard to the
case because any confusion at all is to the benefit of the defense.’”
(Id. at p. 305.) Read in context, the prosecutor’s comments “could
only have been understood as cautioning the jury to rely on the
evidence introduced at trial and not as impugning the integrity of
defense counsel.” (Id. at p. 306.)
Moreover, “[e]ven where a defendant shows prosecutorial
misconduct occurred, reversal is not required unless the
defendant can show he suffered prejudice. [Citation.]” (People v.
Fernandez (2013) 216 Cal.App.4th 540, 564.) Here, Trujillo’s
attorney and the prosecutor each suggested to the jury that the
other had no case. It is difficult to find “any undue advantage to
the People or disadvantage to” the defense from an exchange that
resulted in a wash. (See People v. Hill (1967) 66 Cal.2d 536, 561.)
Nor was the exchange prejudicial to Rocha personally since the
jury, which heard the exchange, was not reasonably likely to view
rebuttal comments directed at the closing argument of Trujillo’s
attorney as impugning Rocha’s defense. As to him, there was no
prejudicial prosecutorial misconduct.
II
Trujillo argues that the evidence of appellants’ conduct
preceding the shooting of Munguia was impermissible character
evidence. He argues further that defense counsel should have
objected to this evidence, and that either the court should have
given a limiting instruction on its use sua sponte, or counsel
should have requested such an instruction. Trujillo also argues
that Maravilla’s in-court identification of him was unduly
suggestive and that Oscar’s opinion that he was a gang member
was improper lay opinion.

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A. Evidence of Prior Acts
Trujillo acknowledges that his attorney failed to object to
the introduction of evidence about incidents leading up to the
murder. His arguments based on the introduction of evidence of
these prior acts are forfeited because they were not raised in the
trial court. (See Evid. Code, § 353; People v. Alexander (2010) 49
Cal.4th 846, 912; People v. Partida (2005) 37 Cal.4th 428, 433–
437; People v. Kipp (2001) 26 Cal.4th 1100, 1124.)
“To show ineffective assistance of counsel, [Trujillo] has the
burden of proving that counsel’s representation fell below an
objective standard of reasonableness under prevailing
professional norms, and that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result would
have been different. [Citations.] A mere failure to object to
evidence . . . seldom establishes counsel’s incompetence.
[Citations.]” (People v. Frierson (1991) 53 Cal.3d 730, 747.)
Although evidence of prior bad acts is not admissible to
establish a defendant’s propensity to commit crime, it may be
used to prove identity, common design or plan, or intent if
sufficiently similar to the charged crime to support a rational
inference on any of those issues. (Evid. Code, § 1101, subd. (b);
People v. Ewoldt (1994) 7 Cal.4th 380, 393, 402–403; People v.
Kipp (1998) 18 Cal.4th 349, 369 (Kipp).) To be relevant on the
issue of identity, the uncharged acts must be highly similar to the
charged crime and must share with it a high degree of
distinctiveness. (Id. at pp. 369–370.) A lesser degree of
similarity is required to establish a common scheme or plan, and
even less similarity is required to establish intent. (Id. at p. 371.)
The uncharged acts and the charged crime must share common
features sufficient to show that they were not “‘a series of similar

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spontaneous acts’ [citation],” and that the defendant “‘“‘probably
harbor[ed] the same intent in each instance.’ [Citations.]”’
[Citations.]” (Ibid.) The probative value of uncharged bad acts
must not be outweighed by the risk of undue prejudice, confusion
of the issues, or misleading the jury. (Ibid.)
Motive, although not itself an ultimate fact, is relevant to
both intent and lack of justification for the crime. (People v.
Demetrulias (2006) 39 Cal.4th 1, 14.) To establish motive, the
prior acts evidence need not be similar to the charged crime, so
long as there is a direct logical nexus between the prior acts and
the crime. (Id. at p. 15.) Prior gang-related acts are relevant to
establish motive and intent, when the charged crime was
committed under circumstances indicating it was gang related as
well. (See People v. Zepeda (2001) 87 Cal.App.4th 1183, 1211
[confrontation between gang members wielding mace and
baseball bats in which defendant brandished a handgun showed
motive and intent in charged crime of murder].)
Trujillo deemphasizes the similarities between the various
events that took place on the evening of the shooting. The
evidence indicates that in three of the four incidents before the
shooting (those involving Quezada, Christian, and Maravilla),
either Rocha or Trujillo announced the name of the Rose Hills
gang and issued a gang challenge by asking a stranger to identify
himself, or state where he was from, or what gang he was from.
In two incidents (those involving Christian and Maravilla),
Trujillo pointed a gun at the individual and either threatened to
shoot or was told not to shoot by Rocha. In the incident involving
the elderly couple, it was reasonable to infer that a similar
confrontation was averted when Rocha decided not to accost
seniors. Trujillo’s shooting of Munguia followed a similar gang

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challenge, made in the company of the same group of four men,
three of whom (Trujillo, Rocha, and Malo) were Rose Hills gang
members. The challenge, as in the previous incidents, was
directed at a male Hispanic, perceived to be a stranger in the
neighborhood. The probative value of the prior acts evidence is
further enhanced by the proximity of the incidents in time and
place (they all occurred on the same evening and in the area of
the housing project controlled by the Rose Hills gang). (See Kipp,
supra, 18 Cal.4th at p. 371.)
The incidents preceding the murder were, therefore, highly
probative on the issues of a common plan or scheme, motive,
intent, and even identity, to the extent that Trujillo had
consistently been identified as the individual holding a gun in
these distinctive gang-related confrontations with strangers.
They raised a reasonable inference that these confrontations
were motivated by appellants’ desire to intimidate individuals
they did not know, who happened to come onto their gang’s
territory, to show them that Rose Hills was a violent gang, and to
validate their own status as gang members.
On the other hand, since none of the prior acts had resulted
in an actual shooting, they were not unduly prejudicial and “not
significantly more inflammatory” than the charged crime. (See
Kipp, supra, 18 Cal.4th at p. 372.)
Trujillo argues that the trial court had a sua sponte duty
to instruct the jury with CALCRIM No. 375, a limiting
instruction on the permitted use of prior acts evidence. But the
court has no such duty except in the “extraordinary case” where
the prior acts evidence was “both highly prejudicial and
minimally relevant to any legitimate purpose,” and was “a
dominant part of the evidence against the accused.” (People v.

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Collie (1981) 30 Cal.3d 43, 64; see also People v. Valdez (2012) 55
Cal.4th 82, 139.) This was not an extraordinary case in which
the evidence of appellants’ prior acts was both highly prejudicial
and minimally probative.
To the extent Trujillo argues his trial counsel was
ineffective in not requesting a limiting instruction, he has failed
to show that counsel’s choice was not tactical. (See People v.
Hinton (2006) 37 Cal.4th 839, 878 [failure to request a limiting
instruction on a prior conviction not ineffective assistance
because “counsel may have deemed it unwise to call further
attention to it”].) CALCRIM No. 375 would have explicitly told
the jury that, if it found Trujillo had committed the uncharged
acts, it could consider them as evidence of motive, intent, or
identity. Defense counsel may have concluded that in linking the
prior acts to the murder, the instruction would not help Trujillo.
Even were we to assume that defense counsel should have
requested CALCRIM No. 375, we find no prejudice because the
prosecutor did not use the prior acts as character evidence. The
prosecutor did not insinuate, as Trujillo suggests, that he was a
bad person or “a bully.” Rather, she argued that the evidence
was relevant to motive and intent. The specific theory she
advanced was that appellants were gang members asserting their
authority on their gang’s territory, particularly over young male
Hispanics they thought did not belong in the neighborhood. The
prior acts evidence was offered for a proper purpose.
B. Maravilla’s Identification of Trujillo as the Gunman
Trujillo argues that Maravilla’s in-court identification
of him as the person who had assaulted and robbed Maravilla at
gunpoint was tainted because the prosecutor and investigating
detective “coached” Maravilla during a trial recess.

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“In order to determine whether the admission of
identification evidence violates a defendant’s right to due process
of law, we consider (1) whether the identification procedure was
unduly suggestive and unnecessary, and, if so, (2) whether the
identification itself was nevertheless reliable under the totality of
the circumstances, taking into account such factors as the
opportunity of the witness to view the suspect at the time of the
offense, the accuracy of his or her prior description of the suspect,
the level of certainty demonstrated at the time of the
identification, and the lapse of time between the offense and the
identification. [Citations.]” (People v. Cunningham (2001) 25
Cal.4th 926, 989.) “We review deferentially the trial court’s
findings of historical fact, especially those that turn on credibility
determinations, but we independently review the trial court’s
ruling regarding whether, under those facts, a pretrial
identification procedure was unduly suggestive. [Citation.]”
(People v. Gonzalez (2006) 38 Cal.4th 932, 943.)
The record does not support Trujillo’s speculative claim
that the detective and prosecutor influenced Maravilla to identify
him. The prosecutor told the court that, during a recess after
Maravilla’s direct examination, the interpreter had notified her
that Maravilla had said “he’s essentially recognizing someone in
court,” and that “he was embarrassed, but that the detective had
told him in the past that if he comes to court and he should
recognize anyone that actually put a gun on him, to say
something.” The prosecutor double-checked if Maravilla had
recognized the gunman, and Maravilla confirmed he was “the guy
in the blue shirt . . . with hair,” pointing to Trujillo. The
prosecutor had Maravilla repeat what he had told her in front of
the detective; then, she notified defense counsel.

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Initially, the court was concerned about the prosecutor’s
off-the-record conversation with a witness during trial, but the
prosecutor explained that both Maravilla and the interpreter
could testify to it, and the court agreed her explanation made “it
sound a lot more innocent” than what the court initially thought
might have happened. The court allowed the prosecutor to re-
open Maravilla’s direct examination to introduce the
identification, over objection.
Maravilla testified he had told the interpreter he “was
ashamed to say that the guy that had robbed me looked like the
detective.” He then identified Trujillo as the robber. On cross-
examination, it was elicited that Maravilla had not recognized
anyone from a six pack and that he had picked the wrong person
from a lineup. Maravilla explained that at the lineup he had
picked a person who had been fidgeting a lot. He insisted that he
could not correctly estimate Trujillo’s height in comparison to his
attorney’s unless both stood next to his van. On redirect,
Maravilla agreed with the prosecutor that Trujillo could have
grown in the years since the shooting. On recross, Maravilla
agreed with defense counsel that Trujillo had been in the lineup,
but could not say in what position.
Trujillo has not shown Maravilla’s identification was the
result of a suggestive pretrial procedure, as there is no evidence
the six pack or the lineup were unduly suggestive. Nor is there
any evidence supporting his speculation that the in-court
identification was suggested by the prosecutor or the detective
during recess at trial. Trujillo argues that Maravilla recognized
him from the lineup, but that also is speculative.
Even were we to assume that Maravilla’s in-court
identification of Trujillo was somehow tainted, we are not

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convinced it was unreliable under the totality of the
circumstances. Maravilla saw his assailant at close proximity,
and provided a description of him. Trujillo argues that the sketch
prepared with Maravilla’s help bears little resemblance to
Trujillo’s actual appearance. However, Maravilla did not
describe Trujillo’s facial features beyond noting that the assailant
was a Hispanic man with a thin mustache. That may explain the
generic appearance of the face on the sketch.
While it is true that Maravilla had been unable to identify
Trujillo before trial, he explained that he had been distracted at
the lineup. He rejected the suggestion that his memory had
faded over the years, asking rhetorically, “[W]ould you forget a
person who is pointing a gun at your head?” His trial testimony
indicates that Maravilla was overly focused on the robber’s knit
hat, which appears prominently on the sketch, and that he was
unable to determine the robber’s height except in relation to the
van. We have no evidence of Trujillo’s actual height and weight.
However, other witnesses had described Trujillo, or the man with
the gun, as the only one who wore a hat (a beanie) on the evening
of the shooting.
C. Oscar’s Opinion that Trujillo Was a Gang Member
The trial court struck Officer Rivera’s testimony that
Trujillo was a gang member after the officer acknowledged he
had not spoken to Trujillo. Oscar then testified he had met
Trujillo in 2011 and had “hung out” with him “a lot” before
Trujillo became a member of the Rose Hills gang in 2012. Oscar
was not asked how he learned Trujillo had joined the gang, and
no objection to his testimony was interposed.
On appeal, Trujillo argues that Oscar’s testimony about his
gang membership was impermissible lay opinion, not based on

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personal knowledge. He also acknowledges that the issue is
forfeited absent an objection (see People v. Hamilton (2009) 45
Cal.4th 863, 917), and argues in the alternative that counsel was
ineffective for failing to object.
Oscar’s testimony suggests he was quite close to Trujillo at
the time Trujillo reportedly joined the gang, and the events on
the day of the shooting show Oscar continued to “hang out” with
Trujillo even after that. It is reasonable to infer he had heard
Trujillo announce his gang membership before, especially since
on the evening of the shooting, Trujillo did so repeatedly—when
he told Christian and his wife, “It’s my gang. It’s my hood. . . . [¶]
[T]his is Rose Hills gang,” and when he told Maravilla that this
was “Rose Hills.” Trujillo also addressed Munguia with a gang
challenge, asking him where he was from, before opening fire on
him. Thus, Trujillo’s gang membership was independently
established through his own admissions, in addition to Oscar’s
testimony. An objection to Oscar’s testimony would not have
resulted in a more favorable outcome for Trujillo.
III
Both appellants request that we examine the record of an
in camera hearing conducted under section 1054.7 and argue
cumulative error.
A. In Camera Hearing
The names and addresses of prosecution witnesses are
subject to disclosure under section 1054.1, but section 1054.7
gives the trial court discretion to deny, restrict, or defer such
disclosure for good cause. Good cause includes “threats or
possible danger to the safety of a victim or witness.” (Ibid.) A
showing of good cause may be made in camera, and a “verbatim

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record” of the in camera hearing must be made available on
appeal. (Ibid.)
Orders under section 1054.7 are subject to review for abuse
of discretion. (People v. Panah (2005) 35 Cal.4th 395, 458 [good
cause based on credible allegations defendant had conspired to
kill witness]; see also People v. Williams (2013) 58 Cal.4th 197,
263 [good cause based on evidence witness’s life had been
threatened and detective declared disclosure would compromise
witness’s safety and integrity of investigation].) The argument
that fear of the defendant does not prevent disclosure to defense
counsel has been rejected. (Id. at p. 262.)
Oscar’s trial counsel made an overly broad pretrial motion
to discover the prosecution witnesses’ unredacted personal
information, including birth dates, phone numbers, and
addresses. Appellants’ attorneys orally joined in the motion. At
the open hearing, Oscar’s attorney argued there was no evidence
the witnesses believed he was a gang member or were afraid of
him, and there was no danger to the witnesses’ safety if their
personal information was disclosed to defense counsel.
Appellants’ attorneys made no argument. The deputy district
attorney in charge of the case at the time asked to be allowed to
have the investigative officer testify at an in-camera hearing to
establish good cause under section 1054.7. Judge Jose Sandoval,
who heard the motion, presumed that witnesses in a murder case
may be in fear and held an in camera hearing on the issue of good
cause.
We have reviewed the sealed record of the in camera
hearing and find that the court did not abuse its discretion in
denying disclosure of the requested personal information of
prosecution witnesses.

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B. Cumulative Error
Appellants contend that the cumulative prejudice of the
claimed errors mandates reversal of their convictions. Since we
reject their other claims of error, the claim of cumulative error
also fails. (See People v. Sapp (2003) 31 Cal.4th 240, 316.)
DISPOSITION
The judgments are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
MANELLA, J. COLLINS, J.

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