P. v. Tabron

1
Filed 11/28/17 P. v. Tabron CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSEPH DANIEL TABRON et al.,
Defendants and Appellants.
A144079
(Alameda County
Super. Ct. Nos. C172865A,
C172875C, C172875D)
I.
INTRODUCTION
Appellants Joseph Daniel Tabron, Joseph Manuel Castro, and Joseph Robert Silva
appeal their convictions for the felony murder of Noe Garcia and Trisha Forde that
occurred in the course of a home-invasion robbery and kidnapping. Appellants allege the
trial court improperly denied their Batson/Wheeler1motion for dismissal of two African-
American jurors. They argue the trial court should have suppressed Silva’s confession as
both violating Miranda2 and because it was not voluntary. Appellants further argue the
trial court failed to provide jury instructions on defense theories and improperly denied
their motion for acquittal at the close of the prosecution’s case. Silva alleges the court
should have provided an instruction on voluntary intoxication for him. Castro argues the
1 Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22
Cal.3d 258 (Wheeler).
2 Miranda v. Arizona (1966) 384 U.S. 436.

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court improperly admitted his prior conviction for theft to show intent. We find no error
and affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural History
The amended information charged four defendants—Tabron, his brother, Jeffrey
Tabron, Jr.,3 Castro, and Silva—with murder pursuant to Penal Code section 187,4
subdivision (a) of Noe Garcia (count one) and Trisha Forde (count two). The information
alleged firearm enhancements for all defendants pursuant to section 12022,
subdivision (a)(1). It charged Tabron with the special circumstance of robbery for both
murders (§ 190.2, subd. (a)(17)(A), and kidnapping and multiple murders for Forde’s
murder (§ 190.2, subd. (a)(17)(B)). Count three charged Tabron with being a felon in
possession of a firearm. The information further alleged that Tabron had two prison
priors, Castro had ten prison priors, and Silva had one prison prior (§ 667.5, subd. (b)).
The case was tried before a jury from October 28 to December 17, 2014. The jury
found appellants guilty of all three counts; it found the robbery and kidnapping special
circumstance allegations true for Tabron, but did not find true the multiple-murder
special circumstance. The jury found true that Tabron was armed with a firearm, but did
not find that Castro or Silva was armed with a firearm during the commission of the
offense.
The court found true both of Tabron’s prior convictions. The court sentenced him
to 4 years plus two consecutive terms of life without parole. The court found true eight
of Castro’s ten prior convictions, but dismissed the priors in the interests of justice. The
court sentenced Castro to a term of 50 years to life. The court found true Silva’s prior
3 We will refer to Jeffrey Tabron as Jeffrey or by his nickname Twin, and
appellant Joseph Tabron as Tabron, because all three appellants share the same first
name. The trial court granted Jeffrey’s motion to sever his case from his codefendants.
4 All further references are to the Penal Code unless otherwise identified.

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conviction, but dismissed it in the interests of justice. The court sentenced Silva to a term
of 50 years to life.
B. Evidence at Trial
Brothers Esteban and Raul Gonzalez5 lived in a blue house (Gonzalez house) near
the corner of Apricot and Blenheim Streets in Oakland. Numerous other people lived in
the house including Esteban’s wife, Dana, their son Esteban Gonzalez, Jr. (Esteban, Jr.),
Jose Mendoza, and Martin Ascencio. Esteban and Esteban, Jr. were drug dealers.
Tabron lived on 107th Avenue, right around the corner from the Gonzalez house.
Tabron also was a drug dealer. Castro, who was Tabron’s uncle, lived with him. Silva
lived in San Leandro but had frequently stayed in the Gonzalez house a few years before.
Both Castro and Silva were longtime methamphetamine addicts.
Esteban, Jr. owed Tabron money for drugs. His father, Esteban, told Tabron he
would pay the debt, but he had failed to do so.
At 3:00 a.m. on March 2, 2013, Raul was in his bedroom using his laptop
computer. He heard a knock on the door and when he opened it, a man he did not
recognize asked for Dana. When he opened the security door, Tabron came around from
the side with a silver .9-millimeter gun in his hand. Raul recognized Tabron because he
frequently came to the house to see Esteban, Jr. because Esteban, Jr. sold drugs for
Tabron. When Raul saw the gun, he was scared. He took Tabron and the other man,
Taco,6 to Dana’s room. There were three or four people in the bedroom. Tabron told
them all to face the wall. Raul testified that Tabron and Taco switched off holding the
gun.
Tabron appeared intoxicated and was staggering. Raul said although Tabron was
drunk, he knew what he was doing.
5 We will hereafter refer to the members of the Gonzalez family by their first
names (Esteban, Raul, Esteban, Jr., and Dana).
6 The man with Tabron was never identified, but Tabron called him Taco during
the robbery.

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Tabron began taking things from the room because Esteban, Jr. owed him money.
Tabron instructed Taco to take Dana’s television, her laptop, and all the lotions on her
headboard.
Tabron left Taco with the gun watching over the people in Dana’s room and
escorted Raul to his room. Tabron took bobble-head figures, a laptop, and a TV, which
Raul helped Tabron carry to a white car waiting with the engine running. Raul was not
able to see the driver well, but he believed it was an African-American man with short
hair.
When Raul returned to the house, Tabron told him he was going to hit him in the
back of the head so it did not appear he was giving Raul special treatment. Tabron then
hit Raul, but it did not hurt. When they entered Dana’s room, Taco handed the gun to
Tabron.
Jose Mendoza was in his room in the basement playing dice with Esteban, Jr., “G”
and an African-American woman. Mendoza heard Tabron say that they should bring him
upstairs and a person (Taco) appeared in the doorway with a gun. Mendoza testified that
Tabron and Taco each had a gun when he saw them. Everyone gave Tabron their
cellphones and wallets. After that, Tabron’s uncle, Castro, looked into the room smiling.
Castro was walking around in the house and Raul saw him in the kitchen. Raul and
Castro were not friends and there was no reason for Castro to be at his house at 3:00 a.m.
Neither Raul or Mendoza saw Silva the night of the robbery.
Raul testified that Tabron and Castro took a TV from Dana’s room. Mendoza
testified that he heard Castro’s voice saying he was going to help, but he did not see him.
He heard Tabron say, “Uncle, what are you doing here?” and Castro said he was there to
help.
There was another woman Raul did not know at the house that night, Trisha
(Forde). She walked into Dana’s room in the middle of the robbery. Tabron told Forde
to sit with the rest of the people in the room. Tabron and Forde talked briefly.
Tabron told everyone to lie face down on the ground. He told them if they talked
to the police, he would come back for every single one of them. As he said it, he pointed

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the gun at each person. Mendoza remembered that Tabron said not to call the police or
he would kill them. He told Forde that she was coming with him. Raul testified that
Forde looked scared; however, Mendoza testified Forde did not appear scared.
After Tabron, Taco and Forde left, less than a minute later, Raul heard a male
voice say “who are you?” and a different male responded “who the hell are you?” Then
he heard gunshots. He heard three or four shots, then a woman screaming and about five
to seven more gunshots. He then heard the screeching of car tires.
Mendoza heard two or three gunshots and then a woman screamed. He heard a
man say “bitch” and then more gunshots. The voice sounded like Tabron’s voice.
Approximately two minutes after the gunshots, the people in the room began to get
up and Dana said she was going to go see what was going on. Raul went outside and saw
a man lying in the street on Blenheim. He did not know the man. He then saw Forde’s
body. Everybody was rushing to leave. When the police arrived, Raul did not talk to
them because he was scared that word would get back to Tabron. Mendoza was similarly
too scared to talk to the police.
Mendoza saw Castro outside the house when he went out to see what happened
after the gunshots. He was walking alone on Apricot Street.
Several witnesses also heard the gunshots. Around 4:00 a.m., J.H. was asleep in
his house in the 10000 block of Apricot Street and he was awakened by multiple
gunshots. He called 911. R.G., who lived on Blenheim Street, had a surveillance camera
on the outside of her home. Her house was near the corner of Blenheim and Apricot
Streets. She heard several shots and then, less than 10 seconds later, she heard more
shots. The first set of shots sounded a bit farther away, and the second set was right in
front of her house.
Oakland Police Technician Hurtado testified that Forde’s body was in front of
10730 Apricot Street on the sidewalk. Hurtado collected five .9-millimeter cartridge
cases around Forde’s body. He also collected two more .9-millimeter cartridge cases on
Apricot and one near the corner of Apricot and Blenheim. A firearms expert, Susan
Molloy, testified that five of the cartridges were fired from an Uzi.

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Technician Hurtado found eight .9-millimeter cartridges near Noe Garcia’s body.
There were a total of fifteen .9-millimeter cartridge cases at the scene; eight were fired
from an Uzi, and seven were fired from a .9-millimeter handgun. Hurtado also found two
7.65-millimeter live rounds at the scene.
Dr. Thomas Rogers, the forensic pathologist who performed the autopsies of both
victims, testified that each died from multiple gunshot wounds. Garcia had nine gunshot
wounds to the back of his head, both thighs, both sides of his buttocks, his left knee and
his lower back. He had a grazing wound on his right hand. Six of the gunshot wounds
were to the back of Garcia’s body. Garcia had some gunshot residue on his right hand.
Forde had six gunshot wounds plus two grazing wounds. The shots were to the
back of her head, her left upper arm, her back, her thigh, and her buttocks. The shots
were fired at close range, with the shot to the back of her head being the closest. She was
shot in the back four times. The toxicology report for Forde showed high levels of
methamphetamine in her system, along with amphetamine and alcohol.
An inspector from the Alameda County District Attorney’s Office, Shawn Knight,
testified about text messages between Forde and Esteban, and Forde and Garcia, on the
night of the murders. Garcia and Forde texted each other from 12:15 a.m. to 3:23 a.m.
about meeting. At 3:23 a.m., Forde sent a text to Garcia that reads: “OMG [Oh My God].
Hold up.”
C. Silva’s Confession and Trial Testimony
1. Silva’s Interrogation7
At the beginning of the interrogation, Oakland Police Officer Perez-Angeles asked
Silva if he needed to use the bathroom or needed anything else before they started and
Silva replied: “I’m okay right now.” Officer Perez-Angeles read Silva his rights and
7 The prosecution introduced a redacted version of Silva’s interrogation that
deleted any reference to his codefendants. When Silva testified, he introduced the
complete interrogation.

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asked if he understood each of these rights as he had explained them. Silva replied “yes.”
Silva signed the form acknowledging that the officer read him his rights.
Officer Perez-Angeles informed Silva he was investigating a double homicide and
Silva’s name came up in the investigation, but he knew Silva did not shoot anybody.
Silva replied that he would tell him exactly what happened. He said he went out with
Twin (Jeffrey) earlier in the evening. Silva stated he was selling crank
(methamphetamine).
At this point, Silva asked Officer Perez-Angeles, “This—none of this is gonna be
used in court is it?” Officer Perez-Angeles responded: “This is between me and you right
now, bro,” and Silva said alright. Silva then explained he bought an “eight ball” and he
was bringing back the money. He went to Tabron’s house and knocked on the garage
where Castro normally stayed, and he did not answer.
When Twin showed up, he asked Silva to help with a TV. He had a flat screen
TV, laptops, and other items in his car and asked Silva to put them in his truck. Silva
agreed. He went with Twin to the Gonzalez house to get another TV. “Some black
dude” came out with a second TV. Silva put the TV in his truck and took it to “a storage
place.”
Silva said he was a little tipsy because he had a couple drinks so he “wasn’t
thinkin’ in my right mind or I would’ve thought better.” When he helped with the second
TV, “red flags went up” and he knew “somethin’ was goin’ down.”
Officer Perez-Angeles told Silva that he heard he went in the house, and Silva
swore he did not. He never saw Castro at the Gonzalez house. He stated he did not see
anyone get shot. He did not see Twin with a gun.
The officers told him they knew he was involved and he needed to tell the truth.
At this point, Silva stated there were “[p]eople on the ground. Somebody holding a gun,”
but they had masks on. He then admitted he was in the house and saw people lying on
the floor in the back bedroom. He said: “As soon as he shot that guy, I ran. I see him
point the gun and then shoot it.” He stated he heard just one gunshot. He identified
Tabron as the shooter, but also said that Twin had a gun.

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When the officers asked Silva if he was part of the robbery and what he was
responsible for, Silva stated: “Do I need a lawyer?” Officer Perez-Angeles responded: “I
can’t give you any legal advice, bro.” Officer Perez-Angeles then stated: “We’re just
asking you questions. We know that you didn’t kill those two individuals, that we
know.” Silva responded: “Yeah.” Silva stated that he was starving and he needed
something to eat. Officer Perez-Angeles told him they would take a break and get him
some food and offered to get McDonald’s.
When the interrogation continued, Silva explained when he went back into the
house a second time, one of the robbers was coming out of the house with a woman. The
robber had a hood on so Silva did not see his face. He saw him push her and say, “Get
out the door.” He thought the woman was White or light-skinned Black with blonde hair.
2. Silva’s Testimony at Trial
Silva testified that he met Tabron at a restaurant on the night of the incident.
Tabron and his brother (Twin) were there and four or five other people he did not know.
He had half a cocktail. When he left the restaurant he had “a little buzz.” He got an
“eight ball,” or eighth of an ounce of methamphetamine, from Tabron and sold half to a
friend. He went home and assisted his mother who had dementia, smoked meth with a
friend, and then drove to Tabron’s house to pay him. Nobody was home.
At this point, Jeffrey drove up and asked for help unloading the TV from his car.
Silva put the TV in his truck and Jeffrey asked him to come and help with another TV.
They arrived at the Gonzalez house, and he saw two people carrying out a TV. They put
the TV in Silva’s truck. After that, he left and went home. He never saw Tabron, but he
called him when he got back to his house. He then went to Tabron’s house and a person
he did not know unloaded the TV’s.
He never saw anyone get shot outside the Gonzalez house. He testified that he
heard different versions of what happened, but in two versions Esteban Gonzales had shot
two people that night outside the house.
Silva testified that he said he saw Tabron firing a gun because he believed that
Tabron had told the police Silva was involved with the robbery. He told them he saw a

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body on the ground because he “knew there was supposed to be one there.” Officer
Perez-Angeles led him to believe that Tabron had identified him. The officers kept
telling him he went inside so he just said that he had gone inside.
Silva testified he left the Gonzalez house with the two TV’s around 4:05 a.m. and
he did not see Garcia or Forde’s bodies, but a ShotSpotter gunshot detection system
registered the shots at 3:54 a.m.
Silva stated that he was able to list what stolen items he saw, i.e., two TV’s,
laptops, and a sound system, during his police interview because he had gotten that
information from Esteban. The prosecutor, however, pointed out that he had testified that
Esteban had not told him about the robbery. Silva admitted that nobody told him that
someone in the house was holding a gun, but he told Officer Perez-Angeles someone had
a gun. He also admitted that the officers never suggested that Tabron pushed a woman
out of the house; yet that is what he said during his interrogation. He further admitted
that no one suggested to him or told him that Tabron shot a man, but in his interrogation
Silva said after Tabron fired the gun, he ran away. He stated that he said Tabron had a
gun in order to retaliate against him.
III.
DISCUSSION
A. The Trial Court Properly Denied Appellants’
Batson/Wheeler Motion
Appellants argue the trial court improperly denied their motion challenging
dismissal of two African-American jurors.

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1. Voir Dire
During voir dire, Juror L8 stated that the criminal justice system seemed
“unbalanced.” He said: “I think it’s unbalanced sometimes based on this video that I saw
about false confessions, and they can put people into jail.” He was a criminal justice
major because he wanted to be a police officer, but he no longer wanted to pursue that
path and he was considering being a correctional officer after serving in the Navy. The
incident in Ferguson, Missouri changed his mind about becoming a police officer.
Juror D requested to answer questions confidentially so the court questioned him
in chambers. He stated he had family members who sold drugs and had been in prison.
He said some people who commit crimes belong in prison but others do not. He testified
in a relative’s death penalty case about the relative’s good character. When asked if he
could be fair, he responded that he thought he could be fair, but “I’d just prefer not [to]
deal with a situation like this[.]” He stated that he had interactions with the police in the
1970’s and 1980’s that were both good and bad. He stated he could follow the court’s
instructions, but he wanted to be separated from anything criminal and did not want to
deal with this type of situation.
The prosecutor requested the court excuse Jurors L and D. Defense counsel
objected under Batson, supra, 476 U.S. 79 and Wheeler, supra, 22 Cal.3d 258 because
both jurors were African-American. The court responded that based upon the fact both
jurors stated they could be fair and impartial, the court found there was a prima facie case
and the prosecutor must state her basis for excluding the jurors.
For Juror L, the prosecutor explained that he was slouching the entire time.
Juror L was a criminal justice major who felt the criminal justice system was “not
balanced.” He had recently watched a video regarding false confessions. Juror L
8 During voir dire the two dismissed jurors were seated as Jurors 14 and 17. At
some point, however, they moved to seats 3 and 7. The parties referred to them by their
last names at the Batson/Wheeler hearing and in their briefs on appeal. To preserve the
potential jurors’ privacy, we will refer to them by their last respective last initials.

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indicated that he no longer wanted to be a police officer because of the incident in
Ferguson, Missouri where an officer shot a young man. The prosecutor stated that based
upon his responses, she felt he could not be fair to the prosecution given his negative
view of the police. Further, Juror L indicated that he did not want to be there. The
prosecutor stated: “I don’t want a juror who does not want to be here.”
Juror D stated that he had many relatives who sold drugs, who had been charged
with crimes, and who had been in prison. He was a character witness for a relative in a
death penalty case in the early 2000’s. He indicated that he did not like to be around
“these type [sic] of situations where people are charged with crimes.” He also indicated
that he did not want to be there. The prosecutor stated that based upon his answers, she
did not believe he could be fair.
Castro’s counsel argued that Juror L’s slouching was an indication of his age
group. The fact he watched a video on false confessions was not important because there
was no indication that a false confession was presented in this case. He had a negative
view of the Ferguson incident in general.
Counsel argued Juror D indicated he could be fair, but he would not enjoy
revisiting some issues that reminded him of aspects of his life. He did not indicate that
his relative who was sentenced to death should not be in prison.
The trial court noted that there was still one seated African-American juror. The
court stated it was not its role to determine if the prosecutor’s reasons were good reasons,
but whether they were pretextual to hide racial bias. Juror L’s statements regarding false
confessions would raise a legitimate concern for any prosecutor, particularly given the
case involved Silva’s confession. Juror D’s statement that he did not want to be part of
the process would also cause any prosecutor legitimate concern. The court concluded
that the challenges were not based upon racial bias and the motion was denied.
2. Substantial Evidence Supported the Trial Court’s Findings
“Both the federal and state Constitutions prohibit any advocate’s use of
peremptory challenges to exclude prospective jurors based on race. [Citations.]” (People
v. Lenix (2008) 44 Cal.4th 602, 612 (Lenix).) When a Batson/Wheeler challenge is

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raised, there is a three-step inquiry. “First, the trial court must determine whether the
defendant has made a prima facie showing that the prosecutor exercised a peremptory
challenge based on race. Second, if the showing is made, the burden shifts to the
prosecutor to demonstrate that the challenges were exercised for a race-neutral reason.
Third, the court determines whether the defendant has proven purposeful discrimination.
The ultimate burden of persuasion regarding racial motivation rests with, and never shifts
from, the opponent of the strike. [Citation.]” (Lenix, at pp. 612-613.)
“We presume that a prosecutor uses peremptory challenges in a constitutional
manner and give great deference to the trial court’s ability to distinguish bona fide
reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and
reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions
are entitled to deference on appeal. [Citation.]” (People v. Burgener (2003) 29 Cal.4th
833, 864.) We apply a deferential standard of review, examining whether there was
substantial evidence to support the trial court’s conclusions. (Lenix, supra, 44 Cal.4th at
p. 614.)
We conclude there was substantial evidence to support the trial court’s finding that
the prosecutor had demonstrated race-neutral reasons for dismissal of the two jurors.
Tabron argues that the prosecutor’s reliance on demeanor, namely that Juror L was
slouching, was not a sufficient reason for dismissal. However, a “prospective juror may
be excused based upon facial expressions, gestures, hunches, and even for arbitrary or
idiosyncratic reasons. . . .” (Lenix, supra, 44 Cal.4th at p. 613, citing People v. Turner
(1994) 8 Cal.4th 137, 165.) Our Supreme Court has upheld a peremptory challenge
based on a juror’s demeanor where the juror dressed informally, had an unusual hairstyle,
and refused to make eye contact. (People v. Elliott (2012) 53 Cal.4th 535, 569-570.)
Furthermore, Juror L’s slouching was a physical representation of the fact he did not
want to be there, which he also voiced verbally. Additionally, as Tabron acknowledges,
the prosecutor did not rely on slouching as a reason to dismiss Juror L. It was the fact
Juror L did not want to be there. The prosecutor stated: “I don’t want a juror who does
not want to be here.”

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The prosecutor’s next concern for Juror L was his feelings about the criminal
justice system. Juror L felt the system was “not balanced” and he had become
disillusioned with becoming a police officer after the incident in Ferguson. He also
voiced a concern about false confessions, which was a key issue in this case. Silva
testified his confession was not voluntary and his statements to police were false. As the
trial court found, Juror L’s statements regarding false confessions would raise a
legitimate concern for any prosecutor, especially where an alleged false confession was a
key issue in the case. (See People v. Avila (2006) 38 Cal.4th 491, 544-546 [denying
Batson/Wheeler motion for dismissal of an African-American juror who believed that
police lie].)
As to Juror D, Tabron argues the fact that Juror D had family members who
engaged in criminal behavior and were in prison was not a sufficient reason to dismiss
him. However, “the arrest or conviction of a juror’s relative provides a legitimate, group-
neutral basis for excluding a juror. [Citation.]” (People v. Turner (2001) 90 Cal.App.4th
413, 419.) Additionally, Tabron identifies other jurors who had family members who had
written bad checks and faced drunk driving charges. These jurors were not similarly
situated to Juror D, who had family members who sold drugs and one relative was on
death row for murder. These crimes were more significant crimes and had a greater
similarity to the crimes at issue in the case.
Like Juror L, the prosecutor also felt that Juror D did not want to be there. Juror D
stated more than once that he wanted no part of this “type of situation.” Tabron argues
that a desire to not associate with the criminal lifestyle is not anti-law enforcement bias.
The prosecutor, however, seemed more concerned with a juror who did not want to
participate, or to be in any contact with the criminal justice system. The trial court found
that Juror D’s statement that he did not want to be part of the process would cause any
prosecutor legitimate concern.
Tabron argues that the prosecutor’s explanations are contradicted by the record,
citing People v. Arellano (2016) 245 Cal.App.4th 1139 [prosecutor stated race-neutral
reason only after disputing the juror was African-American and dismissing two other

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African-American women jurors]. Here, however, the prosecutor’s reasons are supported
by the record. The prosecutor detailed her reasons based upon the juror’s statements and
the court made similar findings. Additionally, the prosecutor’s acceptance of the panel
containing an African-American juror strongly suggests that race was not a motive in her
challenges of the other African-American jurors. (People v. Kelly (2007) 42 Cal.4th 763,
780.)
B. Silva Waived His Miranda Rights and Provided a Voluntary Confession
Silva, joined by both Tabron and Castro, argues the trial court erred in denying his
motion to suppress his statement to police because he did not properly waive his Miranda
rights and his confession was not voluntary.9
1. Silva’s Arrest and Post-Arrest Statement
Silva testified that he was arrested by officers with guns drawn. He asked Officer
Gilbert to tell his father he was being arrested so his father could arrange for additional
care for his mother, and Officer Gilbert relayed the message.
Silva arrived at the police station around 4:00 p.m. and was placed in a room. At
5:15 p.m. officers brought him water, and they began the interrogation around 7:00 p.m.
Officers talked to him on and off until 11:00 p.m. and brought food to him.
He testified that he was clean and sober at the time of the interrogation and he
understood everything that was going on. He claimed he told them what he thought they
wanted to hear so he could get home. He said he had never been interrogated before like
9 “[D]efendants must allege a violation of their own rights in order to have
standing to argue that testimony of a third party should be excluded because it is
coerced.” (People v. Badgett (1995) 10 Cal.4th 330, 343, italics omitted.) Tabron and
Castro lack standing to raise a claim that officers violated Silva’s privilege against self-
incrimination. (People v. Jenkins (2000) 22 Cal.4th 900, 965.) Tabron and Castro do
have standing to argue that admission of an improperly obtained statement violates their
Fifth Amendment right to a fair trial. (Id. at p. 966.) Where a defendant seeks to exclude
a codefendant’s statement as coerced or involuntary, he must show the testimony violates
his constitutional rights. (People v. Douglas (1990) 50 Cal.3d 468, 501, disapproved on
other grounds in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4.)

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this. He had previously had more than 20 interactions with the police. He had been
arrested approximately 24 times in Alameda County, 11 times in San Leandro, 6 times in
Oakland and 3 times by the California Highway Patrol. He had been read his Miranda
rights many times. In 2010, Silva was arrested and advised of his Miranda rights and
invoked his right to remain silent.
Silva testified that he used both methamphetamine and marijuana as well as
drinking alcohol on the date of the robbery. His life-long use of drugs had affected his
short-term memory.
Dr. Ricardo Winkel, a clinical and forensic psychologist, conducted an
examination of Silva and concluded his scores indicated he was a “highly suggestable
individual.” Silva had a “very passive, dependent personality who avoids conflict.”
2. Suppression Hearing
Prior to trial, Silva filed a motion in limine requesting the court conduct a hearing
on the voluntariness of his confession. At the hearing, the prosecutor and the court raised
the issue of whether Silva had waived his Miranda rights and the issue of his invocation
of the right to counsel. Counsel responded that he was challenging the voluntariness of
the statement, but he would also like the court to address the other issues.
The court stated that on the waiver issue, it was guided by Berghuis v. Thompkins
(2010) 560 U.S. 370 (Berghuis). The court heard testimony from San Leandro Police
Officer Blankenship, who arrested Silva by pointing his firearm at him and requesting
that he lie on the ground. He engaged in no conversation with Silva while he transported
him to the police station. Neither he nor the other officer threatened or harmed Silva.
Officer Perez-Angeles testified the entire interview with Silva was recorded. Silva
was placed in the interview room at 4:00 p.m. He had a drink of water at 5:15 p.m. and
food from McDonald’s at 9:00 p.m. Silva did not appear to be under the influence of
drugs or alcohol and he did not appear mentally fatigued. The officer read Silva his
Miranda rights off the standard form. He asked Silva if he understood his rights and
Silva responded yes.

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The court found that Silva’s question “Do I need a lawyer?” was not an invocation
of his right to counsel. The court found there was no evidence that Silva’s will was
overborne. Silva asked, “None of this is going to be used in court, is it?” and the officer
responded, “[T]his is between you and me right now.” Then Silva responded to the
earlier question that he purchased an eight ball. The court stated that Silva’s question
seemed to be referring to dropping off the eight ball, rather than his statement as a whole.
The court found that when Silva asked if what he said was going to be used against him,
he was referring not to the statement itself, but to the precise response about illegal drugs.
The court found the officers’ deceptive statements were not coercive. The
Miranda warning was proper and Silva’s waiver and statement were voluntary.
3. Miranda Waiver
Silva’s first argument is that his confession should have been suppressed because
any implied waiver of his Miranda rights was negated by the officers later assertion that
his statement would not be used against him.
In Berghuis, the case relied upon by the trial court, the defendant did not say that
he wanted to remain silent or that he did not want to talk with the police. “Had he made
either of these simple, unambiguous statements, he would have invoked his ‘ “right to cut
off questioning.” ’ [Citation.] Here he did neither, so he did not invoke his right to
remain silent.” (Berghuis, supra, 560 U.S. at p. 382.)
“The prosecution therefore does not need to show that a waiver of Miranda rights
was express. An ‘implicit waiver’ of the ‘right to remain silent’ is sufficient to admit a
suspect’s statement into evidence. [Citation.]” (Berghuis, supra, 560 U.S. at p. 384.)
Where the prosecution shows that a Miranda warning was given and that it was
understood by the accused, an accused’s uncoerced statement establishes an implied
waiver of the right to remain silent. (Berghuis, at p. 385.)
We consider both voluntariness of the waiver and whether appellant was aware of
the consequences of abandoning his rights. (People v. Whitson (1998) 17 Cal.4th 229,
241 (Whitson).) On the issue of voluntariness, we consider whether the police exerted
physical or psychological pressure or whether there were improper interrogation tactics.

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(Ibid.) On the issue of awareness, we consider whether defendant’s judgment was
clouded or otherwise impaired. (Id. at pp. 248-249.)
The recorded interview demonstrated that Silva was not subjected to improper
interrogation tactics. There was no undue physical or psychological pressure. Silva was
arrested at gunpoint and placed in handcuffs, but Silva had been arrested more than 20
times before. Before Silva was questioned, he was given the opportunity to use the
restroom and provided with a drink. During the interview, when he stated he was hungry,
the officers provided him food from McDonald’s.
There is no basis in the record to conclude that Silva did not understand the
consequences of waiving his rights. Officer Perez-Angeles read him his rights and Silva
signed the form acknowledging it. Officer Perez-Angeles asked Silva if he understood
each right as he read them to him. Silva had been read his rights many times in the past
and on one prior occasion he had invoked his right to remain silent. (See Whitson, supra,
17 Cal.4th at pp. 249-250 [after being advised of his Miranda rights, the defendant
affirmatively indicated that he understood these rights and he had previously been
advised during of his rights in another encounter with the police six months before].)
At the start of the interview after Officer Perez-Angeles told Silva they were
investigating a double homicide, Silva said he would tell him “exactly what happened.”
Silva’s course of conduct further indicated his waiver because he freely spoke to the
officers. (See Berghuis, supra, 560 U.S. at p. 386.)
Silva contends the fact that he asked if this was going to be used in court after he
admitted to selling crank (methamphetamine), demonstrates he did not knowingly and
voluntarily waive his rights. When Silva asked if “none of this is gonna be used in court
is it?” Officer Perez-Angeles replied, “This is between me and you right now, bro” and
Silva said “Alright.”
The trial court concluded that Silva’s statement was about his own drug dealing
being used against him, rather than the entirety of the conversation. Respondent argues
that there is no possibility Silva could have believed the entire conversation would not be
used in court. If Silva believed his statement was off the record, he would not have

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repeatedly lied to the officers at the start of the interview. In addition, Silva had a
lengthy criminal history and had been read his Miranda rights numerous times. He was
not acting under a misconception that anything he said to the officers was somehow “off
the record.”
In People v. Samayoa (1997) 15 Cal.4th 795, our Supreme Court rejected the
defendant’s contention that he believed he was speaking “off the record” because his
interrogation was not being recorded. The defendant had been read his rights and even if
the officer failed to tell him the statement could be used against him in court, the
defendant was “an ex-felon who would have been familiar with his Miranda admonitions
from his previous criminal involvement.” (Id. at p. 831.) “[W]e conclude the trial court
reasonably determined that [the] defendant’s explicit waiver of his Miranda rights was
knowing and voluntary, and not the result of a misconception that his statements were off
the record.” (Ibid.) The same reasoning applies to Silva.
Next, Silva argues the fact that he asked if he needed a lawyer also demonstrates
his waiver was invalid. Silva asked “Do I need a lawyer?” Officer Perez-Angeles
responded “I can’t give you any legal advice, bro.” The officers proceeded with their
questions and Silva asked for something to eat.
Respondent argues that Silva’s statement actually demonstrates he was aware of
his rights and that he could be provided with counsel. Silva’s question was whether he
should exercise his right to counsel because he asked not whether he had a right to a
lawyer, but whether he needed one.
This statement was not a clear invocation of the right to counsel. In People v.
Sapp (2003) 31 Cal.4th 240, 264, 268, our Supreme Court concluded that a defendant’s
statement “[M]aybe I should have an attorney” was not an invocation of his right to
counsel. The statement was equivocal and inadequate to require officers to cease
questioning. (Id. at pp. 268-269.) Similarly, the statement “Maybe I should talk to a
lawyer” is not an unambiguous invocation of the right to counsel. (Davis v. United States
(1994) 512 U.S. 452, 462; People v. Suff (2014) 58 Cal.4th 1013, 1068-1069 [the
defendant’s statement that if he was being charged, “I think I need a lawyer” was not an

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invocation].) Here, Officer Perez-Angeles understood Silva’s statement as a question
about whether he needed a lawyer that he could not answer. Silva then requested food
and the interview proceeded.
Silva argues that Officer Perez-Angeles used coercive tactics to get a pliable
subject to make a statement. Officer Perez-Angeles told Silva that he heard he was inside
the Gonzalez home that night and implied there was evidence to support it.
Deceiving a suspect does not render a confession involuntary. (People v. Maury
(2003) 30 Cal.4th 342, 411.) There are numerous decisions finding more intimidating
and deceptive tactics proper interrogation. (See Frazier v. Cupp (1969) 394 U.S. 731,
739 [officer falsely told the suspect his accomplice had been captured and confessed];
People v. Thompson (1990) 50 Cal.3d 134, 167 [officers lied repeatedly telling the
suspect they had evidence linking him to a homicide]; In re Walker (1974) 10 Cal.3d 764,
777 [officers told a wounded suspect he might die before he reached the hospital, so he
should talk while he still had the chance].)
4. Voluntariness of the Confession
“Both the state and federal Constitutions bar the prosecution from introducing a
defendant’s involuntary confession into evidence at trial. [Citations.]” (People v. Linton
(2013) 56 Cal.4th 1146, 1176 (Linton).) “ ‘A statement is involuntary if it is not the
product of “ ‘a rational intellect and free will.’ ” [Citation.] The test for determining
whether a confession is voluntary is whether the defendant’s “will was overborne at the
time he confessed.” [Citation.]’ ” (People v. McWhorter (2009) 47 Cal.4th 318,
346-347.) “Whether a confession was voluntary depends upon the totality of the
circumstances.” (People v. Scott (2011) 52 Cal.4th 452, 480.)
In Linton, the defendant claimed coercive police interrogation tactics led to his
confession. He identified the repetitive nature of the questions about his sexual interests
and sexual conduct, the length of the interview from morning until late afternoon, and his
personal psychological characteristics. The Linton court found no improper police
conduct. (Linton, supra, 56 Cal.4th at pp. 1176-1177.) It was not improper for the
officers to ask the defendant a number of times and in a number of different ways about

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his conduct. (Id. at p. 1178.) There was nothing hostile or threatening about the officers’
questions or tone. (Ibid.) Linton was questioned for two hours and 45 minutes and spent
one and a half hours doing testing. He was offered both food and drink. (Ibid.) Finally,
the court rejected Linton’s argument that his personal characteristics rendered him more
vulnerable to coercion. Linton was 20 years old, lived with his parents and was
unemployed. He had learning disabilities and no prior experience with the criminal
justice system. (Id. at pp. 1178-1179.) Our Supreme Court concluded there was “no
indication here of coercive tactics by the individuals interviewing defendant, including
any evidence that they exploited any personal characteristics of defendant in order to
obtain his admissions and confession.” (Id. at p. 1179.) His confession was voluntary.
(Ibid.)
Similarly, there is no evidence of improper or coercive tactics during Silva’s
interrogation. Silva was questioned on and off over a four-hour period and he was
provided both food and drink. Silva’s claim that he was stressed during the interview
because he was hungry and was worried about his mother is also contradicted by the
evidence. As soon as Silva said “I’m starving,” the officers offered to provide him food.
At the time of his arrest, Silva asked Officer Gilbert to inform his father he was being
arrested and to arrange for additional care for his mother. Silva testified that Officer
Gilbert relayed his message.
Silva’s expert, Dr. Winkel, testified that Silva was a “highly suggestable
individual” with “a very passive, dependent personality.” “Insofar as a defendant’s
claims of involuntariness emphasize that defendant’s particular psychological state
rendered him open to coercion, this court has noted that ‘[t]he Fifth Amendment is not
“concerned with moral and psychological pressures to confess emanating from sources
other than official coercion.” ’ [Citations.]” (People v. Smith (2007) 40 Cal.4th 483,
502.)
Additionally, Silva told many lies and changed his story during the interrogation
contradicting the argument that he agreed to whatever the officers suggested. The trial

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court found that Silva’s will was not overborne because he lied during much of the
interview and protected the identity of the perpetrators.
At the time of the interview, Silva was clean and sober and testified that he
understood everything that was going on. Silva was a 50-year-old man who had
extensive experience with the criminal justice system, including more than 20 prior
arrests and a prior interrogation where he invoked his right to remain silent.10
We conclude under the totality of the circumstances that Silva’s statement was not
the result of coercion and was voluntary. Therefore, the statement was properly admitted
against Silva, as well as against Tabron and Castro at trial.
C. Motion for Acquittal at the Close of the Prosecution’s
Case-in-Chief
Tabron, joined by Castro and Silva, argues that the trial court erred in denying his
motion for acquittal pursuant to section 1118.1 at the close of the prosecution’s evidence.
1. Motion Hearing
Tabron’s counsel moved to dismiss the charges under section 1118.1 because there
was no rational nexus between the murders and the felonies. He argued the robbery was
over when the murders occurred. He also argued there was no evidence of kidnapping.
The two victims were not the object of the robbery. Castro joined in the motion and
argued that he was not a coconspirator. Silva’s counsel also joined the motion and
argued that Silva’s statement must be disregarded as coerced. Silva was not involved in
the underlying crimes, other than to aid and abet the receipt of stolen property.
The prosecution argued that both Castro and Silva were liable under the felony-
murder rule as aiders and abettors. Both Raul and Mendoza testified Castro was inside
10 Castro cites to Division Two’s decision in In re Elias V. (2015) 237
Cal.App.4th 568 to support his argument that Silva’s confession was coerced. In re
Elias V. is readily distinguishable because it involved the “dominating, unyielding, and
intimidating” questioning of a 13-year-old boy at his school away from his parents. (Id.
at p. 586.) The dangers attendant to an interrogation of a juvenile do not apply to a 50-
year-old man with extensive involvement with the criminal justice system.

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the house during the robbery. Silva helped load items into his truck. The robbery and
burglary were not complete at the time of the murders because appellants had not escaped
to a place of safety. Forde was forced from the house by Tabron while he was making
his escape from the robbery. Forde and Garcia were killed because they were witnesses
or they interfered with the escape.
The court found that even if Castro and Silva had reached a place of temporary
safety prior to the murders, they aided and abetted the underlying crimes so they are still
as liable as the perpetrator for murder. Tabron was liable either as the shooter or as a
coconspirator. There was enough of a logical nexus for it to go to a jury. The court
denied the section 1118.1 motion.
2. Legal Analysis
In determining whether the evidence was sufficient either to sustain a conviction
or to support the denial of a section 1118.1 motion, the standard of review is essentially
the same. (People v. Houston (2012) 54 Cal.4th 1186, 1215.) “ ‘[W]e do not determine
the facts ourselves. Rather, we “examine the whole record in the light most favorable to
the judgment to determine whether it discloses substantial evidence—evidence that is
reasonable, credible and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” [Citations.] We presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.] [¶] The same standard of review applies to cases in which the prosecution
relies primarily on circumstantial evidence and to special circumstance allegations.
[Citation.] “[I]f the circumstances reasonably justify the jury’s findings, the judgment
may not be reversed simply because the circumstances might also reasonably be
reconciled with a contrary finding.” [Citation.] We do not reweigh evidence or
reevaluate a witness’s credibility.’ [Citation.]” (Ibid.)
To be convicted of felony murder, “[t]here must be a logical connection between
the cause of death and the [underlying felony].” (CALCRIM No. 540A, Bench Notes;
see People v. Cavitt (2004) 33 Cal.4th 187, 203-204 (Cavitt); People v. Wilkins (2013) 56
Cal.4th 333, 347 (Wilkins).) The felony-murder rule does not require “a killing to

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advance or facilitate the felony, so long as some logical nexus existed between the two.”
(Cavitt, at p. 198.)
Two California Supreme Court cases set forth the relationship required between
the felony and murder. Cavitt addressed the scope of accomplice liability in connection
with the felony-murder rule, and Wilkins addressed the liability of the killer. In Cavitt,
James Cavitt, Robert Williams and Cavitt’s girlfriend, Mianta McKnight, planned and
executed a robbery of McKnight’s home. They tied up and gagged McKnight’s
stepmother, and then tied up McKnight to make it appear she was a victim as well.
(Cavitt, supra, 33 Cal.4th at p. 193.) The stepmother died of asphyxiation. The
prosecution’s theory was that the defendants were guilty of felony murder because the
murder occurred as the result of the robbery. The defense theory was that McKnight
deliberately suffocated her stepmother after Cavitt and Williams left the home. (Ibid.)
The court held the felony-murder rule requires both a causal relationship and a temporal
relationship between the underlying felony and the act resulting in death. (Ibid.) “The
causal relationship is established by proof of a logical nexus, beyond mere coincidence of
time and place, between the homicidal act and the underlying felony the nonkiller
committed or attempted to commit. The temporal relationship is established by proof the
felony and the homicidal act were part of one continuous transaction.” (Ibid.)
Cavitt and Williams argued that McKnight killed her stepmother after they left the
house for reasons unrelated to the robbery. They provided evidence that McKnight hated
her stepmother and expressed a desire to kill her. (Cavitt, supra, 33 Cal.4th at p. 195.)
The defendants argued the court should have instructed the jury that to convict them of
felony-murder, the killing must have facilitated the robbery. (Id. at p. 196.) “We hold
instead that the felony-murder rule does not apply to nonkillers where the act resulting in
death is completely unrelated to the underlying felony other than occurring at the same
time and place. Under California law, there must be a logical nexus—i.e., more than
mere coincidence of time and place—between the felony and the act resulting in death
before the felony-murder rule may be applied to a nonkiller. Evidence that the killing
facilitated or aided the underlying felony is relevant but is not essential.” (Ibid.)

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In Wilkins, Wilkins burglarized a house and loaded large appliances into his truck.
As he was driving away on the freeway, a stove fell off his truck and killed another
driver. (Wilkins, supra, 56 Cal.4th at p. 337.) Wilkins was convicted under a felony-
murder theory. (Id. at p. 340.) The trial court refused to instruct the jury on the escape
rule and the Supreme Court concluded that was error. (Id. at p. 342.) “ ‘Felony-murder
liability continues throughout the flight of a perpetrator from the scene of a robbery until
the perpetrator reaches a place of temporary safety because the robbery and the accidental
death, in such a case, are parts of a “continuous transaction.” ’ . . . When the killing
occurs during flight, . . . the escape rule establishes the ‘outer limits of the “continuous-
transaction” theory.’ . . . ‘Flight following a felony is considered part of the same
transaction as long as the felon has not reached a “place of temporary safety.” ’
[Citation.]” (Id. at p. 345, italics omitted.)
Tabron’s argument on appeal, joined by Castro and Silva, is that there was no
proof of a nexus between the robbery and the Garcia homicide.11 Tabron contends
Garcia was not a victim of the robbery, burglary or kidnapping. Garcia’s body was found
a half block from the Gonzalez house. The evidence showed that Garcia was killed
because of an argument between two men overheard by Raul and Mendoza.
We conclude the trial court properly denied the motion because the prosecution
had presented sufficient evidence to support its theory of felony-murder for Garcia. The
evidence showed that Garcia and Forde had been in contact that night and he was coming
to meet her after receiving her text that she was witnessing a robbery. Garcia was shot
within one to two minutes after appellants left the Gonzalez home with Forde. Tabron,
who did not know Forde, ordered her from the bedroom at gunpoint and led her outside.
Silva testified that Tabron led a woman from the house and told her to “Get out the door.”
11 Respondents argue that Tabron does not appear to contest he committed the
underlying robbery. Tabron also does not contest the evidence related to Forde’s murder
or the kidnapping. Respondent provides an extensive argument about kidnapping but this
issue is not raised by appellants.

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Less than a minute after Tabron left the bedroom with Forde, Raul heard a male voice say
“who are you?” and another male respond “who the hell are you?” Both Raul and
Mendoza heard approximately three gunshots and a woman’s scream, followed by more
gunshots. R.G. similarly heard gunshots that sounded a bit farther away and then
gunshots right in front of the Gonzalez house.
Garcia was shot multiple times with a .9-millimeter gun. Raul testified Tabron
had a .9-millimeter handgun during the robbery. Right before he left the house, he
pointed a gun at each of the hostages and threatened them to stay quiet.
There was sufficient evidence for a jury to conclude that either Tabron, Taco,
Jeffrey, Silva or Castro killed Garcia. There was a causal relationship beyond a mere
coincidence of time and place. Garcia was coming to meet Forde and he was killed
outside the Gonzales home as the robbers/kidnappers were leaving.
There was also a temporal relationship because the robbery and kidnapping were
part of a continuous transaction with the murders. (Cavitt, supra, 33 Cal.4th at p. 193.)
Both the robbery and the kidnapping were ongoing when Garcia was shot. Tabron had
just left the house and had Forde with him. The felonies were still in progress as Tabron
had not reached a place of temporary safety. (Wilkins, supra, 56 Cal.4th at p. 345.)
Mendoza saw Castro down the block from the house after the murders. Even if Silva or
Castro had left, which was not shown by the evidence, they would still be liable for
felony-murder because their accomplice, Tabron, had not reached a place of temporary
safety. (Cavitt, supra, at p. 196.)
Whether Garcia was shot because he interfered with their escape, attempted to
stop the kidnapping, or simply just witnessed their crimes, his death as they were fleeing
the house with Forde was logically connected to the underlying felonies.
As further support for his argument, Tabron argues that the jury did not find him
guilty as the shooter and they did not find the multiple murder special circumstance. In
order to find the special circumstance, the jury had to conclude that Tabron actually
killed Forde or had the intent to kill her. Respondent argues that the jury rejected the
multiple murder special circumstance because it concluded that Tabron did not kill Forde,

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who was shot with an Uzi. The evidence showed he was armed with a .9-millimeter gun,
so the jury could have concluded one of the other perpetrators killed Forde. But, Tabron
was guilty of felony murder whether he shot Garcia himself or one of his accomplices
did.
The trial court properly denied appellants’ section 1118.1 motion because there
was sufficient evidence to prove felony-murder.
D. The Trial Court Properly Elected Not to Give CALCRIM
No. 540C
Appellants argue that the court should have instructed the jury pursuant to
CALCRIM No. 540C: Felony Murder: First Degree—Other Acts Allegedly Causing
Death. Appellants’ defense at trial was that the homicides were unrelated to the robbery.
They assert that instruction No. 540C supported their theory of the case.
1. Jury Instructions
The court instructed the jury pursuant to CALCRIM Nos. 540A and 540B.
Instruction No. 540A stated:
“Defendants are charged in Counts 1 and 2 with murder, under a theory of felony
murder.
“To prove that the defendant who did the act that resulted in death is guilty of first
degree murder under this theory, the People must prove that: [¶] 1. The defendant
committed robbery or burglary or kidnapping; [¶] 2. The defendant intended to commit
robbery or burglary or kidnapping; [¶] AND [¶] 3. While committing robbery or burglary
or kidnapping, the defendant caused the death of another person.
“A person may be guilty of felony murder even if the killing was unintentional,
accidental, negligent or in self-defense.
“To decide whether the defendant committed robbery or burglary or kidnapping,
please refer to the separate instructions that I will give you on those crimes. You must
apply those instructions when you decide whether the People have proved first degree
murder under a theory of felony murder.

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“There must be a logical connection between the cause of death and the robbery
or burglary or kidnapping. The connection between the cause of death and the robbery
or burglary or kidnapping must involve more than just their occurrence at the same time
and place.
“The crime of robbery or burglary or kidnapping continues until the defendant has
reached a place of temporary safety.
“It is not required that the person killed be the victim of the felony.” (Italics
added.)
The court also instructed the jury under CALCRIM No. 540B that the “defendants
may also be guilty of murder, under a theory of felony murder, even if another person did
the act that resulted in the death.” A defendant is guilty if he aided or abetted the
perpetrator of the robbery or burglary or kidnapping. Or if “[w]hile committing robbery
or burglary or kidnapping, the perpetrator caused the death of another person.” It further
states: “It is not required that the defendant be present when the act causing the death
occurs.”
Appellants requested the court also instruct pursuant to CALCRIM No. 540C.
CALCRIM No. 540C provides the same general language on felony murder as No. 540A,
but includes the following language:
“The commission [or attempted commission] of the <insert felony or felonies from
Pen. Code, § 189> was a substantial factor in causing the death of another person.
“A person may be guilty of felony murder even if the killing was unintentional,
accidental, or negligent.
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“An act causes death if the death is the direct, natural, and probable consequence
of the act and the death would not have happened without the act. A natural and probable
consequence is one that a reasonable person would know is likely to happen if nothing
unusual intervenes. In deciding whether a consequence is natural and probable, consider
all the circumstances established by the evidence.”

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The Bench Notes include the following caution for CALCRIM No. 540C: “This
instruction should be used only when the alleged victim dies during the course of the
felony as a result of a heart attack, fire, or a similar cause rather than as a result of some
act of force or violence committed against the victim by one of the participants in the
felony. (Cf. People v. Billa (2003) 31 Cal.4th 1064, 1072 . . . [arson causing death of
accomplice]; People v. Stamp (1969) 2 Cal.App.3d 203, 209-211 . . . [heart attack caused
by robbery]; People v. Hernandez (1985) 169 Cal.App.3d 282, 287 . . . [same]; but see
People v. Gunnerson (1977) 74 Cal.App.3d 370, 378-381 . . . [(Gunnerson)]
[simultaneous or coincidental death is not killing].)”
At the hearing on the jury instructions, the court stated that it would instruct with
CALCRIM Nos. 540A and 540B. The court included language relating to the need for a
logical connection between the cause of death and the robbery, burglary or kidnapping.
Tabron’s counsel requested the court add the term “continuous transaction.” The court
stated that it would follow the model instruction and include the language that the
robbery, burglary or kidnapping continues until a defendant has reached a place of
temporary safety.
Tabron’s counsel argued their theory: Garcia fired an Uzi into his own leg and
used that Uzi to kill Forde. The court stated that if the jury found that to be true, under
CALCRIM Nos. 540A and 540B, appellants would get a not guilty verdict. The court
stated that “if Noe Garcia did it, there’s no way under these instructions that the[] [jury]
can find any of these [appellants] guilty.” The court stated: “I’ve considered it and I’m
not going to give [CALCRIM No. 540C], essentially for the reasons stated by the
CALCRIM committee in their introduction to the felony murder series, which says that
they provided that instruction to account for unusual factual situations where a victim
dies during the course of a felony as a result of a heart attack, a fire or similar course,
rather than as a result of some act of force or violence committed against the victim by
one of the participants.”
The court concluded it was preferable to use CALCRIM Nos. 540A and 540B to
avoid providing the jury with unnecessarily complicated instructions.

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2. Legal Analysis
We apply a de novo standard of review. (People v. Manriquez (2005) 37 Cal.4th
547, 581.) The trial court has a duty to instruct on general principles of law and defenses
that are not inconsistent with the defendant’s theory of the case when there is substantial
evidence to support giving such an instruction. (People v. Crew (2003) 31 Cal.4th 822,
835.)
On appeal, Tabron makes two arguments about CALCRIM No. 540C. First, he
argues that there must be a logical nexus between the predicate felony and the homicide
and the jury should have been instructed about the nexus pursuant to No. 540C. Second,
he argues the jury should have been instructed the underlying felony must be the
proximate cause of the murders.
Although the court did not provide the full No. 540C instruction, it did include the
language about a logical connection between the death and the underlying felony to
address Tabron’s request. The court instructed the jury: “There must be a logical
connection between the cause of death and the robbery or burglary or kidnapping. The
connection between the cause of death and the robbery or burglary or kidnapping must
involve more than just their occurrence at the same time and place.” (Italics added.)
The Bench Notes to CALCRIM No. 540A state that there is no sua sponte duty to
clarify the logical nexus between the felony and the murder, but if the issue arises the
court may instruct: “There must be a logical connection between the cause of death and
the [underlying felony].” (See Cavitt, supra, 33 Cal.4th at pp. 203-204; Wilkens, supra,
56 Cal.4th at p. 347.) The felony-murder rule does not require “a killing to advance or
facilitate the felony, so long as some logical nexus existed between the two.” (Cavitt, at
p. 198.)
The Cavitt court found a jury instruction need only adequately apprise the jury of
the requirement of a logical nexus between the felonies and the homicide. (Cavitt, supra,
33 Cal.4th at p. 203.) The fact the instruction requires that the killing is committed while
the perpetrators are “engaged in the commission” of the underlying crime prevents
conviction for an unrelated or coincidental homicide. (Ibid.)

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Tabron complains that the court did not instruct the jury it must find a continuous
transaction—the temporal nexus. The court instructed the jury they must find a logical
connection between the robbery or burglary or kidnapping and the death. The connection
between the cause of death and the robbery, or burglary or kidnapping must involve more
than just their occurrence at the same time and place. The court also instructed that the
crime of robbery, burglary or kidnapping continues until the defendant reaches a place of
safety. This is sufficient. (See Cavitt, supra, 33 Cal.4th at p. 193 [“The causal
relationship is established by proof of a logical nexus, beyond mere coincidence of time
and place, between the homicidal act and the underlying felony the nonkiller committed
or attempted to commit”].)
Tabron’s second argument is that the court’s instructions did not require the jury
to find that the underlying felony was the proximate cause of the murders. CALCRIM
No. 540C includes the following language: “An act causes death if the death is the direct,
natural and probable consequence of the act and the death would not have happened
without the act.” It further specifies that an act causes death “only if it is a substantial
factor in causing the death.” (CALCRIM No. 540C.)
Tabron relies on Gunnerson, supra, 74 Cal.App.3d 370, which held that
defendants convicted of felony murder are entitled to prove that the heart attack death of
the victim was “merely ‘simultaneous’ or ‘coincidental’ to the robbery.” (Id. at p. 378.)
If the robbery was not legally related to death than they were not guilty of killing required
for a felony murder conviction. (Id. at p. 379.) To establish a duty to instruct on
proximate cause, appellants would have to show the evidence reasonably suggested a
possibility of an intervening cause of death independent of the burglary/kidnapping.
(People v. Huynh (2012) 212 Cal.App.4th 285, 310-311.)
Here, the trial court rejected the notion there was an intervening cause of death.
Appellants’ argument rested on the theory that Garcia shot Forde. First, the trial court
found if the jury believed that Garcia shot Forde, then under CALCRIM Nos. 540A and
540B, the jury could not find appellants guilty of felony murder. Second, the evidence

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did not support appellants’ theory that some third party shot both Garcia and Forde or
that Garcia shot Forde.
There was no credible evidence that Garcia was armed with the Uzi. No Uzi was
found near Garcia’s body or at the scene. A surveillance video that captured Garcia
walking toward Blenheim did not clearly show anything in his hands. Officer Perez-
Angeles testified he did not see anything in Garcia’s hands in the video and the bulge that
defense counsel identified was a shadow.
Garcia had five particles of gunshot residue (GSR) on his right hand. The defense
argued this was evidence he fired the Uzi, but the expert who testified at trial stated that if
Garcia had fired the Uzi, he would have a large amount of GSR on his hands. There was
conflicting testimony about whether Garcia’s hands were “bagged” and if GSR could
have been wiped away. The GSR on Garcia’s hand was more likely the result of him
being shot at close range. Garcia had a grazing wound on his right thumb that was the
likely source of the GSR.
The fact Garcia had one bullet wound from an Uzi was argued by both sides.
Appellants argued it showed Garcia shot himself in the knee. The prosecution expert
testified that it could have been inflicted by another shooter as Garcia was running away.
Silva never identified Garcia as the shooter. He first stated that the shooter was
wearing a mask, and then identified Tabron as the shooter.
However, even if Garcia was armed and the jury believed that Garcia shot himself
with the Uzi and then shot Forde, there was no evidence that anyone other than the
perpetrators shot Garcia. The evidence showed that Tabron had a .9-millimeter gun
during the robbery, and Garcia was shot with a .9-millimeter gun directly outside the
house within two minutes of the robbery. There was no evidence to support the alternate
theory that Esteban killed either Garcia or Forde. Finally, there was no evidence of any
other secondary factor (such as a heart attack) or unrelated occurrence.
Furthermore, even if the trial court erred in failing to give the full text of
CALCRIM No. 540C, the error was harmless beyond a reasonable doubt. (Wilkins,
supra, 56 Cal.4th at p. 349.) As outlined in Section C above, the overwhelming evidence

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showed a connection between the robbery and the murders of Garcia and Forde.
Appellants suffered no prejudice given the overwhelming evidence demonstrating both
the logical nexus and temporal connection between the robbery/kidnapping and murder.
E. Tabron’s Pinpoint Instruction Regarding Felony Murder
On appeal, Tabron, joined by both Silva and Castro, argues that because the court
refused to instruct the jury pursuant to CALCRIM No. 540C, it should have given
Tabron’s requested pinpoint instruction.12
1. The Requested Instruction
Tabron requested the court provide the following pinpoint instruction to the jury:
“If the evidence indicates that someone other than the defendant or a coparticipant
committed the fatal act, then the crime is not felony murder.” The court stated that while
the statement was true, the instructions already made that clear. The court told counsel it
had no problem with them making that argument to the jury.
Defense counsel presented his theory of the case: Garcia went to meet his love,
Trisha Forde, and found she was with Esteban Gonzalez. He shot Forde and was going
to shoot Gonzalez when the gun jammed. He shot himself in the leg. This allowed
Esteban to shoot him and kill him. Tabron was not there when this happened.
Alternatively, the jury could conclude that Tabron shot Garcia because he was
reacting to Garcia’s shooting of Forde, which had nothing to do with the underlying
felonies.
The court said if the jury believed the defense theory, then his client would not be
guilty of murder and no additional instructions were necessary. The defense scenario is
covered by the paragraph in the instruction that requires a logical connection between the
felony and the death.
12 Tabron requested two pinpoint instructions—one based on former CALCRIM
No. 549 (revoked), and one on a nonparticipant committing the murder. On appeal, he
appears to only contest the nonparticipant instruction.

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2. The Pinpoint Instruction Was Duplicative and Not Supported by
Substantial Evidence
“ ‘A trial court must instruct on the law applicable to the facts of the case.
[Citation.] In addition, a defendant has a right to an instruction that pinpoints the theory
of the defense. [Citation.]” (People v. Panah (2005) 35 Cal.4th 395, 486, italics
omitted.) A trial court is not required to give a pinpoint instruction that duplicates other
instructions. (People v. Bolden (2002) 29 Cal.4th 515, 558.) “[W]here standard
instructions fully and adequately advise the jury upon a particular issue, a pinpoint
instruction on that point is properly refused.” (People v. Canizalez (2011) 197
Cal.App.4th 832, 857.) Furthermore, the court does not have to provide an instruction
based on a defense theory where there is no substantial evidence to support it. (People v.
Mayberry (1975) 15 Cal.3d 143, 151.)
The trial court found that the requested pinpoint instruction was duplicative. The
court’s instructions explained that appellants could not be convicted of felony-murder if
the murder was committed by someone not involved in the underlying felonies. The
court stated that defense counsel could argue this theory to the jury and they did.
As respondent argues there also was not substantial evidence to support the
pinpoint instruction. There was no evidence Garcia and Forde were in a romantic
relationship and no credible evidence that Garcia killed Forde. They knew each other
and had texted that evening, but there was nothing to support the theory that Garcia killed
Forde out of jealousy on seeing her with either Esteban or Tabron. Additionally, there
was no evidence linking Esteban to the murder or that he arrived during or after the
robbery.
Next, Tabron argues that the court should have instructed the jury on the required
logical nexus. This is simply a rehash of Tabron’s argument regarding CALCRIM
No. 540C. The court did instruct the jury on the required logical connection between the
felony and the murder.
A court’s refusal to instruct with a proposed pinpoint instruction is harmless under
the People v. Watson (1956) 46 Cal.2d 818, if the closing argument pinpoints the asserted

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defense and the instructions given sufficiently address the topic. (People v. Earp (1999)
20 Cal.4th 826, 887; People v. Gutierrez (2002) 28 Cal.4th 1083, 1144.) The record as a
whole demonstrates that the jury was properly instructed. Counsel’s arguments to the
jury highlighted the defense theory that someone other than the perpetrators of the
robbery committed the murders. The jury rejected the argument that Garcia, or someone
else, killed Forde because it found true the robbery and kidnapping special circumstance
allegations demonstrating that the jury believed Tabron or one of the robbers killed
Forde.
F. The Trial Court Properly Declined to Instruct the Jury on
Self-Defense
All appellants argue that the court should have instructed the jury on self-defense
and defense of another pursuant to CALCRIM Nos. 505 and 506.
1. Jury Instruction Conference
At the jury instruction conference, the court stated that it would instruct the jury:
“[A] person may be guilty of felony murder even if the killing was unintentional,
accidental, negligent, or in self-defense.” Tabron’s counsel objected that if Noe Garcia
killed Forde, then Tabron could have killed Garcia in self-defense, which was not part of
the robbery or kidnapping. The court said there was no substantial evidence of self-
defense because Garcia was shot multiple times in the back. The court stated: “The
District Attorney in this case from the beginning of the case has stated she’s going only
on a felony murder theory, not a malice type of theory. And I’m saying that there has
been no substantial evidence so that a jury instruction should be given of a malice type of
theory. Self-defense would only apply to a malice type of theory, so would imperfect
self-defense.” Even if Tabron killed Noe Garcia in self-defense, self-defense does not
apply to the felony-murder rule.
Defense counsel argued that the court was depriving them of their defense.
Counsel asked: “Is the Court saying that Mr. Joseph Tabron lost his right to self-defense
because he was participating in a felony?” and the court said “Yes,” citing to People v.
Loustaunau (1986) 181 Cal.App.3d 163 (Loustaunau). The court stated that Tabron’s

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theory was not supported by the evidence. The murder was related to the felonies
because Tabron had not reached a place of temporary safety. The court stated the
instructions gave adequate protection from a defendant being convicted for an unrelated
murder because there must be a logical nexus between the cause of death and the robbery,
burglary or kidnapping. It must involve more than just their occurrence at the same time
and place.
2. Self- Defense and Felony-Murder
In Loustaunau, Loustaunau murdered Kelli Crain and attempted to murder Ray
Livingston in the course of a burglary. (Loustaunau, supra, 181 Cal.App.3d at
pp. 167-168.) Appellant’s “bizarre and incredible testimony” was that he was not
committing a burglary, but rather looking for drugs to help the police and he acted in self-
defense because one of the homeowners attacked him with a knife. (Id. at pp. 168-169.)
The prosecution proceeded on a theory of felony murder during the course of the
burglary. (Id. at p. 169.) Loustaunau requested an instruction on self-defense. “The trial
court properly instructed that the unlawful killing of a human being whether intentional,
unintentional or accidental which occurs as a result of the commission of or an attempt to
commit the crime of burglary, and where there was in the mind of the perpetrator a
specific intent to commit such crime, is murder of the first degree. (CALJIC No. 8.21;
Pen. Code, § 189; People v. Dillon (1983) 34 Cal.3d 441, 465 . . . .) The purpose of the
felony-murder rule is to deter even accidental killings in the commission of designated
felonies by holding the felon strictly liable for murder. [Citation.] When a burglar kills
in the commission of a burglary, he cannot claim self-defense, for this would be
fundamentally inconsistent with the very purpose of the felony-murder rule. [Citation.]”
(Loustaunau, supra, 181 Cal.App.3d at p. 170.)
Felony murder “entails commission of an inherently dangerous felony, requires no
proof of intent or conscious disregard of life, and renders irrelevant defenses that mitigate
malice such as provocation or self-defense. [Citations.]” (People v. Price (2017) 8
Cal.App.5th 409, 430; People v. Tabios (1998) 67 Cal.App.4th 1, 9, disapproved on other
grounds, People v. Chun (2009) 45 Cal.4th 1172 [imperfect self-defense is not a defense

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to felony-murder].) Malice is irrelevant to felony murder which renders self-defense and
imperfect self-defense irrelevant because both doctrines are applied to the issue of the
existence or nonexistence of malice.
Here, the prosecution proceeded solely on a felony-murder theory so the court was
not required to instruct the jury on self-defense or imperfect self-defense. The only
relevant factual inquiry for the jury was whether appellants had the intent to commit
robbery, burglary or kidnapping. Any killing that resulted from that conduct was first-
degree murder whether it happened intentionally, accidentally or in self-defense.
Appellants argue they were entitled to a self-defense instruction based on the
defense theory that Garcia shot Forde in a jealous rage and Tabron shot Garcia in self-
defense. As we have concluded earlier in this opinion, this argument fails both because
the trial court found there was no substantial evidence to support this theory and because
the robbery, burglary and kidnapping were ongoing at the point the murders occurred.
Noe Garcia was shot in the back seven times, undermining any argument that Tabron
killed him in self-defense. There was, however, substantial evidence that Tabron and the
other perpetrators had not reached a place of temporary safety. Tabron forced Forde
from the house and she was murdered directly outside on the street. Several witnesses
testified that the shooting occurred right after the robbers left the house. Garcia was
murdered a short distance away.
Finally, by finding the special circumstances of robbery and kidnapping, the jury
necessarily rejected the argument that the murders were committed in self-defense.
G. Lesser Included Offenses of Second Degree Murder and
Voluntary Manslaughter
Appellants argue they were charged with malice murders under section 187 in
counts one and two, and thus were entitled to lesser-included offense instructions on
second degree murder and voluntary manslaughter.
The amended information charged in count one: “defendants did unlawfully, and
with malice aforethought, murder NOE GARCIA.” For count one, it alleged the special
circumstance of robbery as to Tabron. Count two alleged “defendants did unlawfully,

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and with malice aforethought, murder TRISHA FORDE.” It alleged both the special
circumstances of robbery and kidnapping for Tabron. Although the prosecution
proceeded on only a felony-murder theory at trial, it did not amend the information and
appellants were charged with malice murder.
The jury was instructed on first degree felony murder for both a principal and an
aider and abettor. The jury was not instructed on any other theory of murder.
The trial court is required to instruct the jury on lesser included offenses if there is
substantial evidence that would absolve defendant of guilt for the greater offense but not
the lesser. (People v. Rogers (2006) 39 Cal.4th 826, 866.) We conduct an independent
review of whether the trial court improperly failed to instruct on a lesser included
offense. (People v. Souza (2012) 54 Cal.4th 90, 113.) “For purposes of determining a
trial court’s instructional duties, we have said that ‘a lesser offense is necessarily included
in a greater offense if either the statutory elements of the greater offense, or the facts
actually alleged in the accusatory pleading, include all the elements of the lesser offense,
such that the greater cannot be committed without also committing the lesser.
[Citations.]’ [Citations.]” (People v. Smith (2013) 57 Cal.4th 232, 240.) The court can
apply one of two tests to determine if a lesser offense is necessarily included in a greater
offense: the elements test and the accusatory pleading test. (People v. Lopez (1998) 19
Cal.4th 282, 288.) The elements test is satisfied if the greater offense cannot be
committed without also committing the lesser offense. (Ibid.) “Under the accusatory
pleading test, a lesser offense is included within the greater charged offense ‘ “if the
charging allegations of the accusatory pleading include language describing the offense
in such a way that if committed as specified the lesser offense is necessarily committed.”
[Citation.]’ [Citations.]” (Id. at pp. 288-289.)
Our Supreme Court has held that under the accusatory pleading test if the
information alleges a murder with malice aforethought, a defendant is entitled to an
instruction on the lesser included offenses if there is substantial evidence that defendant
committed only the lesser offense but not the greater offense of felony murder. (See

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People v. Banks (2014) 59 Cal.4th 1113, 1160 (Banks), overruled on another ground in
People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.)
This district addressed the issue in People v. Anderson (2006) 141 Cal.App.4th
430 (Anderson), where the prosecution charged first degree murder but then added the
felony murder charge after the close of the evidence. Anderson argued that the trial court
should have instructed on second degree murder and voluntary manslaughter. (Id. at
p. 442.) Division One held: “We find it unnecessary to resolve this question here. We
assume for the sake of argument that, as the prosecution argues, the trial court would
have had no sua sponte duty to instruct if felony murder were the only crime charged
because second degree murder and voluntary manslaughter are not lesser included
offenses of felony murder. [Citations.]” However, felony murder was not the crime
charged in the accusatory pleading. (Id. at p. 444.) The court concluded there was
substantial evidence that Anderson did not form the intent to take the victim’s money
until after the victim had been mortally wounded, so she was not guilty of felony murder.
(Id. at p. 447.) The court concluded it was error for the trial court not to have instructed
on second degree murder and voluntary manslaughter and under the Watson test, it was
reasonably probable the jury would have reached a different result if properly instructed.
(Id. at pp. 449-450.)
The Fourth District distinguished Anderson in Huynh, supra, 212 Cal.App.4th
285, in a case where, although malice murder was included in the information, the
prosecution’s case was strictly first-degree felony murder. Unlike Anderson, Huynh was
charged with the predicate felonies (sodomy and oral copulation) and the prosecution
alleged the special circumstances. (Id. at p. 313.) Huynh knew from the start of the case
that it was being prosecuted as a felony-murder unlike Anderson where the felony-murder
theory did not arise until the trial had started. (Hunyh, at p. 313.) The court noted that
whether second degree murder is a lesser included offense of felony-murder is an open
question, but the instruction was not warranted because there was no substantial evidence
of second degree murder. (Id. at pp. 314-315.)

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The Second District has held that a jury’s guilty verdicts on felony murder and its
true finding for the robbery special circumstance necessarily resolved the factual issues
related to the lesser included offenses of malice murder. (People v. Gonzalez (2016) 246
Cal.App.4th 1358, 1381 (Gonzalez), review granted July 13, 2016, S234377.) The court
stated to the extent Division Two of the Fourth District reached the opposite conclusion
in People v. Campbell (2015) 233 Cal.App.4th 148 (Campbell), “we respectfully
disagree.” (Gonzales, at p. 1381.) “[A]n instruction on premeditated and deliberate
murder would have done no more than allow the jury to convict appellants under another
theory of first degree murder. Accordingly, any instructional error here was harmless.”
(Id. at p. 1382.)
Here, the prosecution charged appellants with malice murder so under the
accusatory pleadings test, second degree murder is a lesser included offense of felony
murder as charged. (Banks, supra, 59 Cal.4th at p. 1160.) Under Anderson and
Campbell, there is a duty to instruct on second degree murder if the evidence fails to
indisputably show the murder was committed during the course of the felonies.
(Campbell, supra, 233 Cal.App.4th at p. 162; Anderson, supra, 141 Cal.App.4th at
p. 447.)
But here, like in Huynh and unlike Anderson, the evidence showed the murder was
committed during the course of the felonies. As discussed earlier, appellants’ theory was
that Forde left the house voluntarily with Tabron and either Garcia or Esteban shot Forde.
The defense posited that Garcia was romantically involved with Forde and was upset at
seeing her with Tabron. An alternative theory proffered was that Esteban shot Forde
because she was with Garcia. The evidence appellants put forth to support these theories
was text messages between Garcia and Forde showing they were planning to meet; the
verbal exchange overheard by the robbery victims from the house; and the fact Forde was
shot with an Uzi. Appellants argued that Garcia had the Uzi. They claim this supported
a finding Garcia was the aggressor and the shootings were unconnected to the robbery.
Appellants’ theories, however, were just that—theories—without substantial
evidence to support them. The evidence demonstrated Forde did not leave willingly with

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Tabron. There was no evidence Garcia and Forde were romantically involved and no
evidence as to why Garcia would shoot Forde, or that Garcia was in possession of an Uzi.
The exchange overheard by Raul and Mendoza supported the prosecution’s theory that
Garcia happened upon the robbers, was alarmed, and was shot by them. There was
simply no evidence Garcia was the aggressor because he was shot in the back multiple
times.
Furthermore, there was no evidence that Esteban was ever present that night. It is
purely speculation that he was the aggressor and shot either Forde or Garcia.
Finally, there was substantial evidence that felonies were still ongoing when the
murders happened. Tabron forced Forde to leave with him and Forde was killed in front
of the house after exiting with Tabron. The shooting occurred within one to two minutes
of the robbers leaving the bedroom at the Gonzalez house. The felonies were still
occurring when the deaths occurred. Raul and Mendoza both saw Tabron with the .9-
millimeter gun, which was the type of gun used to kill Garcia. Silva also testified he saw
Tabron with a gun.
Appellants are correct that the prosecution could not prove who fired either the .9-
millimeter gun or the Uzi, but that was not the requirement; it only had to prove that one
of the perpetrators did.
Further as explained above, even if we accepted appellant’s version that Tabron
was in some way provoked, self-defense and imperfect self-defense are not defenses to
felony-murder. The robbery and kidnapping were still ongoing when the murders
occurred. (Loustaunau, supra, 181 Cal.App.3d at p. 170.)
There was simply no evidence of malice before the jury that would have allowed
them to convict appellants of second degree murder rather than felony-murder. Similarly,
there was no evidence to show Tabron acted in the heat of passion or based on
provocation necessary for voluntary manslaughter.
However, we need not base our ruling on whether appellants were entitled to the
instruction because we find any error harmless. “Our precedent holds that an erroneous
failure to instruct the jury on a lesser included offense is subject to harmless error

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analysis under People v. Watson[, supra,] 46 Cal.2d [at page] 837 . . . , and that evidence
sufficient to warrant an instruction on a lesser included offense does not necessarily
amount to evidence sufficient to create a reasonable probability of a different outcome
had the instruction been given. [Citations].” (Banks, supra, 59 Cal.4th at p. 1161.)
In Banks, the defendant argued that the trial court erred in failing to instruct the
jury on second degree murder as a lesser included offense of felony murder. (Banks,
supra, 59 Cal.4th at p. 1157.) Our Supreme Court found that under the accusatory
pleading test, second degree murder was a lesser included offense of felony murder as
charged. (Id. at p. 1160.) The court stated that although the evidence of second degree
murder was not particularly strong, it was sufficient to warrant the instruction. (Ibid.)
The surveillance video showed that Banks approached the victim, Foster, at an ATM and
some sort of exchange occurred that was possibly an argument before Banks shot Foster.
(Id. at p. 1161.) The court, nevertheless, found the error harmless. (Id. at p. 1161.)
“Here, there is no reasonable probability that the evidence of an argument between
defendant and Foster, minimal as it was, would have led the jury, had it been properly
instructed, to conclude that [the] defendant shot Foster at the ATM out of malice
unrelated to any robbery. As the trial court observed, even though there was ‘some
evidence’ otherwise, the far more plausible inference is that the ‘fellow was killed at the
[ATM] to try to get money.’ Thus, the trial court’s failure to instruct on second degree
murder was harmless.” (Ibid.)
Gonzalez raised the precise issue present in this case: whether the court erred in
refusing to instruct on the lesser included offenses to malice murder as well as self-
defense and accident. (Gonzalez, supra, 246 Cal.App.4th 1358.) In Gonzalez, the
defendants were prosecuted under a felony-murder theory, but the information charged
malice murder. (Id. at p. 1380.) The court elected not to address whether the defendants
were entitled to the instruction because it concluded any error was harmless. (Ibid.) “It
is not reasonably probable that appellants would have obtained a more favorable outcome
had the jury been instructed on malice murder, its lesser included offenses and the
defenses of accident and self-defense. The jury found beyond a reasonable doubt that

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appellants were guilty of first degree murder for a death that occurred during the
perpetration or attempted perpetration of a robbery. Accordingly, the failure to instruct
on first degree murder was not prejudicial, as that instruction would merely have
provided the jury with another theory on which to convict appellants of first degree
murder. Nor was the failure to instruct on accident and self-defense prejudicial, as
neither accident nor self-defense is a defense to felony murder. [Citations.]” (Ibid.)
The Huynh court agreed concluding that any error in failing to give the instruction
was harmless because the jury’s true findings on the special circumstance allegations
establish the jury found Huynh guilty of first-degree felony murder. (Huynh, supra, 212
Cal.App.4th at p. 315.)
Similarly, here, even though there was some evidence of an exchange between
Tabron and Garcia—the “Who are you?” and “Who the hell are you?” statements—this
would not have led the jury to conclude the murders were wholly unrelated to the robbery
or kidnapping. The more plausible inference was that Garcia happened upon the
kidnapping of his friend, Forde, and was shot by the perpetrators. Further, unlike Banks
where there was limited evidence of a robbery, here there was overwhelming evidence of
a robbery and there was strong evidence of kidnapping.
Additionally, the jury returned a true finding on the felony-murder special
circumstance allegations of robbery and kidnapping. In People v. Castaneda (2011) 51
Cal.4th 1292, our Supreme Court held a true finding on felony-murder special
circumstance allegations eliminated any prejudice from the failure to instruct on second
degree murder as a lesser included offense. “Because ‘the elements of felony murder and
the special circumstance[s] coincide, the true finding[s] as to the . . . special
circumstance[s] establish[ ] here that the jury would have convicted defendant of first
degree murder under a felony-murder theory, at a minimum, regardless of whether more
extensive instructions were given on second degree murder. [Citations.]’ [Citation.]
Therefore, the jury necessarily found defendant guilty of first degree felony murder, and
any error in not instructing the jury concerning second degree murder was harmless
beyond a reasonable doubt.” (Id. at p. 1328; see also Huynh, supra, 212 Cal.App.4th at

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p. 315.) For Tabron, the jury’s finding of felony murder and its findings of the special
circumstances of robbery and kidnapping “resolved factual issues related to lesser
included offenses of malice murder.” (Gonzalez, supra, 246 Cal.App.4th at p. 1381.)
H. Jury Instruction on a Kidnapping Theory of Felony-
Murder
At the conference on the jury instructions, the court stated that it would instruct
the jury on felony murder under CALCRIM No. 540A and aider and abettor felony
murder under CALCRIM No. 540B, and it included language relating to the need for a
logical connection between the cause of death and the robbery or burglary or kidnapping.
The court asked counsel: “Does anybody disagree as to whether or not those are the
predicate felonies?” Castro’s counsel said “No” and Tabron’s counsel made a statement
about burglary not being charged, but said he would agree. Silva’s counsel gave no oral
response.
On appeal, Silva, joined by Castro, argues the court erred in instructing on the
kidnapping theory of felony-murder for them. Although the court instructed about
kidnapping as an underlying felony, the prosecution stated in closing argument that
kidnapping only applied to Tabron. And only Tabron was charged with the special
circumstance of kidnapping.
A party forfeits a challenge to a jury instruction that was correct in law and
responsive to the evidence if the party fails to object in the trial court. (People v. Hudson
(2006) 38 Cal.4th 1002, 1011-1012.) The rule of forfeiture does not apply, however, if
the instruction was an incorrect statement of the law (id. at p. 1012), or if the instructional
error affected the defendant’s substantial rights. (People v. Ramos (2008) 163
Cal.App.4th 1082, 1087.)
Neither Silva nor Castro argues the instruction was an incorrect statement of the
law; rather, they argue the instruction should not have applied to them because there was
not substantial evidence to support it. Under CALCRIM No. 540B, the jury could find
Silva and Castro guilty of felony murder if they found they aided and abetted the robbery
or burglary or kidnapping. There was substantial evidence that Tabron kidnapped Forde,

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and Forde was murdered within two minutes of being forced from the house. The jury
heard evidence of both Castro and Silva’s roles and could determine if there was
substantial evidence each of them participated in the robbery and kidnapping. The jury
was instructed: “If you conclude that defendant was present at the scene of the crime or
failed to prevent the crime, you may consider that fact in determining whether the
defendant was an aider or abettor.” (CALCRIM No. 401.)
We conclude there was sufficient evidence for the court to give the instruction as
to Castro and Silva.13 Furthermore, any error was harmless because the prosecutor
elected to pursue the kidnapping theory of felony murder only as to Tabron. Any concern
that it should not apply to Silva and Castro was remedied by the prosecutor’s statements
that the kidnapping only applied to Tabron and the court’s instruction that some of
instructions may not apply, depending on the jury’s findings of fact.
In addition, given the eyewitness testimony Castro participated in the robbery and
Silva’s statement that he participated in the robbery, there was substantial evidence to
support felony-murder based on the underlying felony of robbery.
I. The Court Properly Declined to Provide an Instruction on
Voluntary Intoxication for Silva
Silva argues the trial court erred in refusing to provide a voluntary intoxication
instruction for him. The court provided an instruction that the jury may consider
Tabron’s voluntary intoxication to determine if he acted with the intent to commit the
underlying felonies, but did not include Silva.
1. Jury Instruction
Silva requested the court give the jury a voluntary intoxication instruction as to
him. The court refused the request stating: “I don’t find that there’s substantial evidence
of intoxication at the time of the commission of the offense.” Silva argued that he had a
13 Silva argues that his counsel’s failure to object amounted to ineffective
assistance of counsel. Given we find the instruction was properly given, there was no
prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 697.)

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“pick me up” of methamphetamine in the morning, he smoked marijuana sometime in the
afternoon and then used methamphetamine again after midnight. He also had cocktails at
dinner. The court stated that given Silva’s “admitted tolerance to drugs,” there was no
evidence it interfered with his intent to commit theft.
In his initial statement to police, Silva said that he was “a little tipsy . . . . I had a
couple drinks” at the time he met Twin to get the TV. He said, “I wasn’t thinkin’ in my
right mind or I would’ve thought better.”
During his testimony at trial, Silva again stated that he used meth in the morning
and smoked a joint in the evening. He met Tabron and Twin at a restaurant and had “half
a cocktail.” When he left the restaurant, he had “a little buzz.” After he got home, he
smoked meth and then drove to find Tabron.
2. There Was No Evidence Silva’s Intoxication Affected His Intent to Aid and
Abet the Robbery
For the court to give an instruction on voluntary intoxication, there must be
“evidence from which a reasonable jury could conclude defendant’s mental capacity was
so reduced or impaired as to negate the required criminal intent. [Citation.]” (People v.
Marshall (1996) 13 Cal.4th 799, 848 (Marshall).) A defendant may present evidence of
intoxication on the question whether he is liable for criminal acts as an aider and abettor.
(People v. Mendoza (1998) 18 Cal.4th 1114, 1133 (Mendoza).) Evidence that a
defendant consumed alcohol or other intoxicating substances, without more, is not
sufficient to warrant the instruction; there must be some evidence from which a
reasonable jury can infer that the consumption of the substance affected the defendant’s
actual formation of specific intent. (People v. Verdugo (2010) 50 Cal.4th 263, 295.)
In Marshall, the court held that there was insufficient evidence for a voluntary
intoxication instruction where the defendant had an unspecified number of alcoholic
drinks over some period of hours, but there was no evidence of the effect of the alcohol
consumption on defendant’s state of mind. (Marshall, supra, 13 Cal.4th at p. 848.)
Where there is little evidence of intoxication and no evidence of its effect on the
defendant, the court is not required to provide the instruction. (People v. Roldan (2005)

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35 Cal.4th 646, 716 (Roldan), overruled on other grounds in People v. Doolin (2009) 45
Cal.4th 390, 421 & fn. 22.)
We conclude the trial court correctly found that the evidence was insufficient to
show Silva was so intoxicated that he could not form the specific intent to aid and abet
the robbery.
Silva had, at most, one cocktail with dinner around 9:00 p.m. in East Palo Alto and
he smoked methamphetamine sometime around midnight. There was no evidence that
this rendered him intoxicated between 3:00 to 4:00 a.m. when the robbery occurred.
Silva was a life-long user of methamphetamine and the trial court concluded that Silva’s
statement about using methamphetamine with a friend would not have rendered him too
intoxicated to form the intent to aid and abet the robbery. (Roldan, supra, 35 Cal.4th at
p. 716 [evidence that defendant was a habitual user of marijuana did not constitute
substantial evidence he was intoxicated or under the influence at the time of the crime].)
Even crediting the evidence of Silva’s intoxication, there was not sufficient
evidence regarding its effect on his mental state. (See People v. Williams (1997) 16
Cal.4th 635, 677-678 (Williams).) In Williams, the defendant argued the trial court
erroneously refused his request for an instruction on voluntary intoxication, pointing to
witness testimony that when he shot the four victims, he was “ ‘probably spaced out,’ ” as
well as his own post-arrest statements that he was “ ‘doped up’ ” and “ ‘smokin’ pretty
tough’ ” at the time of the killings. (Id. at p. 677.) Our Supreme Court concluded
Williams was not entitled to an instruction because “there was no evidence at all that
voluntary intoxication had any effect on [the] defendant’s ability to formulate intent.”
(Id. at pp. 677-678.)
The evidence of Silva’s potential intoxication is entirely from his own statements
to police and at trial. He stated that he was tipsy and was not “thinkin’ in my right
mind.” He also stated that when he went to get the second TV “red flags went up” and he
knew “somethin’ was going down.” Yet he still helped take the TV from the house to his
truck. Silva presented no testimony that his use of methamphetamine and his
consumption of one drink six hours before affected his mental state.

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Citing only federal authority, Silva argues he was deprived of due process by the
court’s failure to instruct on voluntary intoxication and it requires reversal per se. This is
not the correct standard. (See People v. Pearson (2012) 53 Cal.4th 306, 325, fn. 9 [“[t]he
failure to give a fully inclusive pinpoint instruction on voluntary intoxication did not . . .
deprive [defendant] of his federal fair trial right or unconstitutionally lessen the
prosecution’s burden of proof”; accordingly, if instructional error is shown, reversal is
required only if it is reasonably probable the jury would have reached a result more
favorable to the defendant absent the error].) Failure to instruct on voluntary intoxication
is evaluated under the Watson standard. (See Mendoza, supra, 18 Cal.4th at
pp. 1134-1135 [failure to properly instruct on voluntary intoxication subject to standard
for state law error].)
We conclude the evidence Silva was intoxicated at 3:00 a.m. when he aided the
robbery was minimal and there was no evidence, other than Silva’s statements, that his
use of drugs and alcohol had some effect on him.
J. Castro’s Prior Theft Conviction
Castro argues that the court improperly admitted his prior conviction pursuant to
Evidence Code14 section 1101, subdivision (b) for theft of two bicycles.
1. The Prior Offense
The prosecution moved to admit Castro’s prior convictions for a 2011 theft of two
bicycles and 2002 burglary of a parked car. The court stated that the prosecution sought
to introduce the prior convictions to show Castro had the intent to commit burglary,
which involved the intent to commit theft upon entering the house. Castro argued that
there was not a sufficient similarity between the priors and the current robbery. The
prosecutor argued there was a similarity of intent and the crimes involved similar
locations during similar times of day.
14 All further undesignated statutory references are to the Evidence Code.

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The court stated that in weighing the probative value versus the prejudice under
section 352, it seemed that admitting two prior incidents invited the jury to conclude
Castro “is a bad guy.” The court ruled that the prosecution could introduce the 2011 theft
of the bicycles, but not the earlier 2002 incident. The 2002 incident was admissible, but
the probative value did not outweigh the prejudice from “doubling up” and introducing
both convictions.
At trial, the prosecution introduced the testimony of the arresting officer and the
victim of the 2011 theft. A.L. testified that on July 20, 2011, at approximately 5:40 a.m.,
he saw someone, he later identified as Castro, running off with his two bicycles.
San Leandro Police Sergeant Randall Hudson testified that at 5:40 a.m. on July 20,
2011, he responded to a call that two bicycles had been stolen approximately a half mile
from Apricot and Blenheim streets. He found Castro walking with the two bicycles on
107th Avenue. Castro turned, looked at the officer, and immediately dropped the
bicycles and began running away. Sergeant Hudson ordered him to stop. Castro kept
running and Hudson chased him and arrested him.
The court instructed the jury: “The People presented evidence that defendant
Joseph Castro committed the offense of felony theft of two bicycles occurring on July 20,
2011 that was not charged in this case.
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“If you decide that the defendant committed the offense, you may, but are not
required to, consider that evidence for the purpose of deciding whether or not:
“The defendant acted with the intent to commit theft in this case.
“In evaluating this evidence, consider the similarity or lack of similarity between
the uncharged offense and the charged offenses.
“Do not consider this evidence for any other purpose.
“Do not conclude from this evidence that the defendant has a bad character or is
disposed to commit crime.”

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2. Admissibility of the Prior Theft to Show Intent
We review the trial court’s decision to admit the evidence under an abuse of
discretion standard. (People v. Rogers (2013) 57 Cal.4th 296, 326 (Rogers).) “ ‘ “Under
the abuse of discretion standard, ‘a trial court’s ruling will not be disturbed, and reversal
. . . is not required, unless the trial court exercised its discretion in an arbitrary,
capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’
[Citation.]” [Citation.]’ . . .” (Ibid., quoting People v. Foster (2010) 50 Cal.4th 1301,
1328-1329.)
Section 1101, subdivision (b) allows evidence of a crime, civil wrong, or other act
to prove a fact other than predisposition to commit crimes, such as motive, intent,
common plan, or identity. “To be admissible to show intent, ‘the prior conduct and the
charged offense need only be sufficiently similar to support the inference that defendant
probably harbored the same intent in each instance.’ [Citations.]” (People v. Cole (2004)
33 Cal.4th 1158, 1194.) “The least degree of similarity (between the uncharged act and
the charged offense) is required in order to prove intent. [Citation.]” (People v. Ewoldt
(1994) 7 Cal.4th 380, 402.)
In People v. Davidson (2013) 221 Cal.App.4th 966, 973, the court found evidence
of prior car theft showed a defendant’s intent to steal a motorcycle. The prior theft
undermined defendant’s claim that he innocently found the motorcycle. The motorcycle
had been stolen in the early morning hours from in front of the victim’s house, and it had
the ignition switch wiring pulled out. (Id. at p. 969.) In the prior theft, the defendant
took a car in the early morning hours when it was parked in front of the victim’s house.
The car ignition was punched out. (Id. at p. 973.)
Here, the trial court did not abuse its discretion in admitting the prior theft as
evidence of intent under section 1101, subdivision (b). The evidence was sufficiently
similar to support the inference that Castro harbored the same intent in the current
burglary. In both cases, the thefts occurred in the early hours of the morning within a
short distance of Castro’s residence. Castro argues the crimes were not similar because
there was no force or fear involved in the 2011 bicycle theft. Even recognizing these

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differences, “we disagree that these dissimilarities vitiated the inference that defendant
had the same intent in each incident.” (People v. Demetrulias (2006) 39 Cal.4th 1, 16.)
A “distinctive similarity” between the two crimes is not necessary for the other crime to
be relevant to intent. (Ibid., italics omitted.) In both cases, Castro had the intent to steal.
Castro argues that the prosecution had to rely on evidence of the prior theft
because there was no evidence that he intended to aid or abet the robbery/burglary. He
argues that he may have just shown up at the house at 3:00 a.m. without any idea what
was happening. Even if this was true, the evidence showed that Castro was made aware
of what was happening because Raul testified that Castro looked into the room where the
victims were being held and smiled. Mendoza testified Tabron asked Castro what he was
doing at the house and Castro responded he was there to help. Raul saw Castro walking
around the house during the robbery and he saw him assist Tabron with removing a TV.
Mendoza saw Castro walking away from the house on Apricot Street after the murders.
Even if the court correctly concluded the evidence was material, it must be
excluded if its probative value is substantially outweighed by the risk of unfair prejudice
to the defendant. (Rogers, supra, 57 Cal.4th at p. 331.) We review the trial court’s
choice to admit prior incidents under section 352 for abuse of discretion. (People v.
Harris (1998) 60 Cal.App.4th 727, 736-737.) In balancing the probative value of the
evidence against undue prejudice, delay or confusion, we consider the inflammatory
nature of the uncharged conduct; the possibility of confusion of issues; remoteness in
time of the uncharged offenses; and the amount of time involved in introducing and
refuting the evidence of the uncharged offenses. (People v. Branch (2001) 91
Cal.App.4th 274, 282.)
The evidence of the prior theft was not inflammatory and it took minimal time to
present to the jury. There was no possibility of confusion as the jury was instructed on
the role of the evidence to prove intent only. The prior incident was only two years
before the current offense.
Even if the court erred in admitting the evidence of the 2011 bicycle theft, any
error was harmless and does not require reversal. Castro argues that we must apply the

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harmless-beyond-a-reasonable-doubt test for errors that violate the United States
Constitution (Chapman v. California (1967) 386 U.S. 18, 24), while respondent argues
for the reasonable-probability test (Watson, supra, 46 Cal.2d at pp. 836-837) that applies
to errors under California law. (See People v. Malone (1988) 47 Cal.3d 1, 22, [error in
admitting evidence pursuant to section 1101, subdivision (b) tested by the Watson
harmless error standard].) We need not resolve the issue because we conclude that any
error was harmless under either standard.15
IV.
DISPOSITION
The judgment is affirmed.
15 Appellants argue cumulative error. We have analyzed each of appellants’
individual claims and found no error, so there can be no cumulative error. (People v.
Williams (2013) 56 Cal.4th 165, 201.)

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_________________________
RUVOLO, P. J.
We concur:
_________________________
KENNEDY, J.*
_________________________
RIVERA, J.
*Judge of the Superior Court of California, County of Contra Costa, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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A144079, People v. Tabron

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