People v. De La Rocha CA2/2

[[COURTLISTENER_SUBOPINION {"id":"11085517","type":"010combined","part":"opinion","author":null,"source_field":"html_with_citations"}]]
Filed 6/27/25 P. v. De La Rocha CA2/2
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

                           SECOND APPELLATE DISTRICT

                                         DIVISION TWO


 THE PEOPLE,                                                      B336681

          Plaintiff and Respondent,                                (Los Angeles County
                                                                   Super. Ct. No. BA468865)
          v.

 NANCY DE LA ROCHA et al.,

          Defendants and Appellants.


      APPEALS from judgments of the Superior Court of Los Angeles
County. Lisa B. Lench, Judge. Affirmed.
      Kelly C. Martin, under appointment by the Court of Appeal, for
Defendant and Appellant Nancy De La Rocha.
      Steven A. Brody, under appointment by the Court of Appeal, for
Defendant and Appellant Edwin Federico Loza.
      Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney
General, Noah P. Hill and Thomas C. Hsieh, Deputy Attorneys
General, for Plaintiff and Respondent.
                       ________________________________
       Nancy De La Rocha and Edwin Federico Loza appeal the
judgments entered following a jury trial in which they were convicted
as charged on two counts of first degree murder (Pen. Code,1 § 187,
subd. (a); counts 1 & 2), two counts of willful, deliberate, and
premeditated attempted murder (§§ 664/187, subd. (a); counts 3 & 4),
and one count of conspiracy to commit murder (§ 182, subd. (a)(1);
count 5).2 The jury further found the special circumstance that
appellants committed multiple murders to be true. (§ 190.2, subd.
(a)(3); counts 1 & 2.) As to all counts, the jury found true the allegation
that a principal personally used and intentionally discharged a firearm
which caused death or great bodily injury. (§ 12022.53, subds. (b)–
(e)(1).) The court sentenced both appellants to life without the
possibility of parole, plus two life terms, plus a term of 25 years to life
in state prison.
       Appellants De La Rocha and Loza both challenge their judgments
on the followings grounds: that the convictions were not supported by
substantial evidence, that they were prejudiced by a failure to instruct
on a lesser included offense of conspiracy to commit assault with a
firearm, and that their trials should have been severed from other
defendants’ trials. In addition, De La Rocha contends that the trial
court erroneously introduced statements made to a police informant,
and improperly limited defense counsel’s argument and refused a
related pinpoint instruction. Loza argues that his due process rights
were violated because the informant dissuaded him from obtaining an
attorney. Both appellants join in the other’s claims and assert that the
cumulative effect of errors was prejudicial. We reject appellants’
arguments and affirm the judgments.


      1 Undesignated statutory references are to the Penal Code.

      2 Codefendant Christian Ivan Macias was charged and found
guilty of the same offenses. We affirmed his conviction in People v.
Macias (Oct. 15, 2024, B333243 [nonpub. opn.].)


                                    2
                      FACTUAL BACKGROUND
      On May 13, 2018, around 1:15 to 1:30 a.m., M.W., J.S., M.J., and
L.U. were walking near Figueroa Street and Manchester Avenue in
South Los Angeles. They were each 15 years old. At least three of
them were wearing red clothing.
      As the group passed an outdoor taco stand, two or three Latino
individuals approached from across the street. M.W. testified that they
came “from out of nowhere” “straight for” the group. J.S. testified that
one of the suspects said “Suwoop Blood,” a phrase known to identify
Bloods gang members. M.W. was in fear for his life, thinking the
individuals wanted to hurt them, and so he told M.J. to “protect” him
and his friends. M.J. pulled out what looked like a little pistol—
actually, a pellet gun—causing the suspects to run.
      Afterward, as the group of teenagers continued down the
sidewalk, a silver or black SUV was “creeping” on the other side of the
street. It suddenly made a U-turn, accelerated, and pulled up next to
them. The driver was a Latin woman who looked like a “cholo,” and the
car held several male passengers. M.W. could see a gun on the front
passenger’s lap. The driver told the teenagers to “ ‘be safe.’ ”
Understanding the statement to be a threat, the boys ran.
      Surveillance video from the night of the incident captured the
SUV and its occupants. Prior to the encounter with the group of four
teenagers, appellant De La Rocha parked and exited her SUV near the
taco stand on Figueroa Street. Shortly thereafter, a Black man (with
no apparent connection to the victims) argued with De La Rocha and
pointed a gun at her. De La Rocha and a male companion reentered
the SUV. A few minutes afterward, surveillance video showed Macias
running across the street toward the group of teenage boys, and then
quickly running back. Video footage also captured appellant Loza and
codefendant Macias in or around the SUV. The SUV then drove back
and forth in the area of Figueroa Street and Manchester Avenue,
frequently changing direction.



                                   3
       Surveillance footage showed the SUV stopping near the group of
four teenage boys, and the boys then running. Two victims could be
seen falling. J.S. testified that, as he ran away, he could hear shooting.
One of his friends, who was running beside him, fell to the ground. J.S.
was struck by a bullet in his shoulder. M.W. testified that, as he ran
with his friends toward a freeway underpass, he was hit on the leg, and
he saw two of his friends struck by bullets.
       Around 1:30 a.m., officers responded to a report of a shooting
near Manchester Avenue and Grand Avenue. One victim, M.J., was
found on the ground near a bus bench, and another victim, L.U., was
located in a nearby parking lot. Both M.J. and L.U. died from gunshot
wounds. The other two victims, J.S. and M.W., were found, still alive
though injured, near the 110 freeway northbound on-ramp.
       Four nine-millimeter caliber shell casings found near the crime
scene were determined to be fired from the same gun. A day or two
after the shootings, graffiti with Macias’s gang moniker was observed
on a wall next to the area where L.U.’s body was found. The graffiti
was not present at the time of the shootings.
       Shortly after the shootings, surveillance cameras showed the
SUV park in an alley behind a nearby apartment complex where De La
Rocha stayed with her mother. Macias, Loza, and De La Rocha, as well
as an unidentified man, were observed exiting or near the vehicle and
then walking together down an alley. One man threw an object into a
trash can. The SUV seen in the surveillance videos had several unique
features, including a star pattern on the rims, a chrome roof rack, and
aerodynamic headlights, and was determined to match a vehicle owned
by De La Rocha.
       Following their arrests, an informant was placed in a cell with
Macias and then, later, with Loza. As the informant established a
rapport, Macias told him he was “Big K Rooster” from the Little
Gangsters clique of the 18th Street gang. Macias was taken out of the
cell to speak with detectives and, when he returned, he told the



                                    4
informant that the detectives had pictures and videos and the images
looked like him. Macias then recounted that, on the night of the
incident, he saw a group of individuals near Manchester on the other
side of the street who said “Suwoop.” When he ran across the street
toward them, one of them pulled a gun on him and so he backed up and
left. Shortly afterward he saw the “homegirl” passing by in her vehicle
and he got in the back. “Nancy” was “using” the vehicle, which was “in
her name.” When they found the victims, Macias “grabbed the burner”
and hopped out to shoot. He shot “seven bullets” with a “nine,” and was
“shooting everybody.” He and his “homeboy” then cleaned the vehicle.
       When Loza was placed with the informant in a cell, he said that
he was from the Little Gangsters clique of “South Central 18.” After a
detective stopped by and said he wanted to talk to Loza about a
shooting near the 110 and Manchester, Loza said to the informant,
“Someone talking.” He later agreed that “Rooster” could “pinpoint” him
if he flipped. Loza explained to the informant that the driver on the
night of the incident was a “girl” who has kids, had done a “lot of work,”
knew “all the politics,” and was “down.” The victims were four “Blacks”
who were Bloods. Loza said that the “shit happened” “out of nowhere”
and that he “didn’t expect it.” He stated that a “gang fool was gonna
shoot the homegirl,” and that a group of “Blacks” wearing red pulled a
gun on Macias. When Macias said, “I wanna bust at them and shit,”
Loza said, “Let’s go.” Two victims were “put down” and there were two
“attempts.” Loza bragged that it was good, “Like Cheerios, my boy,”
and said that he had a “regular” gun, without an extended clip. Loza
further stated that, during the incident, he kept his iPhone off, and,
after the incident, he “cleaned all [his] shit.”
       Officer Yudidt Martinez testified as a gang expert for the
prosecution. She explained that 18th Street was one of the most
powerful gangs in the United States. The incident occurred in 18th
Street territory. The gang protected its territory with violence. If a
member of 18th Street was a victim of crime within their own territory



                                    5
they would retaliate because, if they did not, they would show
weakness. If a Black man pointed a gun at an 18th Street associate in
18th Street territory, the gang would retaliate by using the same or a
greater amount of force, with multiple members involved. Officer
Martinez testified that “Suwoop” was a term used by the Bloods, and
that an 18th Street gang member could call out the term to determine
if somebody in 18th Street territory was a Blood.
       With respect to Macias, Martinez testified that he was a self-
admitted member of the Los Gangsters clique of 18th Street who was
known as Gallo, or Rooster. Macias had numerous 18th Street tattoos
and also had recently gotten a “BK” tattoo, which meant “Blood killer”
and showed he took credit for killing a Blood. Martinez, who had had
numerous contacts with Macias, identified him in a video surveillance
clip from the night of the incident.
       Officer Martinez opined that Loza, whom she was familiar with
and had spoken with, was also an 18th Street gang member. Loza had
numerous 18th Street tattoos, as well as a “BK” tattoo which he got
following his arrest in the case. Martinez identified Loza in
surveillance footage near De La Rocha’s SUV on the night of the
incident. As for De La Rocha, Martinez met and spoke with her four
days prior to the incident, in the same area where De La Rocha parked
the SUV following the shooting. Bodycam footage of the earlier
encounter showed De La Rocha speaking with Martinez about various
18th Street members from the area whom she associated with,
including some she had bailed out of jail. De La Rocha said her “man”
was from a different clique of the 18th Street gang. Martinez opined
that De La Rocha was an 18th Street gang associate.
                              DISCUSSION
I.     Substantial Evidence Supports the Convictions
       Both De La Rocha and Loza contend that their convictions on
each of the five counts were not supported by substantial evidence.




                                  6
        A.    Applicable standard of review
        In addressing a lack of substantial evidence argument on appeal,
“ ‘ “[T]he court must review the whole record in the light most favorable
to the judgment below to determine whether it discloses substantial
evidence—that is, evidence which is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.” ’ [Citation.] ‘ “ ‘The standard of
review is the same in cases in which the prosecution relies mainly on
circumstantial evidence. [Citation.] “ ‘Although it is the duty of the
jury to acquit a defendant if it finds that circumstantial evidence is
susceptible of two interpretations, one of which suggests guilt and the
other innocence [citations], it is the jury, not the appellate court[,]
which must be convinced of the defendant’s guilt beyond a reasonable
doubt. “ ‘If the circumstances reasonably justify the trier of fact’s
findings, the opinion of the reviewing court that the circumstances
might also reasonably be reconciled with a contrary finding does not
warrant a reversal of the judgment.’ ” ’ ” ’ ” ’ [Citation.] When ‘there
are two possible grounds for the jury’s verdict, one unreasonable and
the other reasonable, we will assume, absent a contrary indication in
the record, that the jury based its verdict on the reasonable ground.’ ”
(People v. Ghobrial (2018)
5 Cal.5th 250
, 277–278.)
        In conducting our analysis, the substantial evidence rule
“ ‘mandates consideration of the weight of the evidence before deferring
to the conclusions drawn from the evidence by the trier of fact. “[I]n
determining whether the record is sufficient . . . the appellate court can
give credit only to ‘substantial[’] evidence, i.e., evidence that reasonably
inspires confidence and is ‘of solid value.’ ” ’ ” (People v. Collins (2025)
17 Cal.5th 293
, 307.) Furthermore, in reviewing the evidence, we do
not “ ‘reevaluate a witness’s credibility.’ ” (People v. Brown (2014)
59
Cal.4th 86, 106
.) “ ‘Resolution of conflicts and inconsistencies in the
testimony is the exclusive province of the trier of fact. [Citation.]
Moreover, unless the testimony is physically impossible or inherently



                                     7
improbable, testimony of a single witness is sufficient to support a
conviction.’ ” (Ibid.)
       B.    Counts 1 through 4
       De La Rocha and Loza challenge their convictions on counts 1
and 2, for first degree murder, and counts 3 and 4, for willful,
deliberate, and premeditated attempted murder, arguing that the
convictions are not supported by substantial evidence.
       Murder is defined as “the unlawful killing of a human being . . .
with malice aforethought.” (§ 187, subd. (a).) “First degree murder is
an unlawful killing with malice aforethought, premeditation, and
deliberation.” (People v. Hernandez (2010)
183 Cal.App.4th 1327, 1332
,
citing People v. Chun (2009)
45 Cal.4th 1172, 1181
.)
       De La Rocha and Loza were both tried under a theory of aiding
and abetting the murders and attempted murders. (The jury found
that Macias personally discharged a firearm.) Our Supreme Court has
explained that “an aider and abettor’s guilt ‘is based on a combination
of the direct perpetrator’s acts and the aider and abettor’s own acts and
own mental state.’ ” (People v. Perez (2005)
35 Cal.4th 1219, 1225
(Perez), quoting People v. McCoy (2001)
25 Cal.4th 1111, 1117
.)
Establishing aider and abettor liability thus requires three distinct
elements of proof: (1) “a crime committed by the direct perpetrator,”
(2) “the aider and abettor’s . . . knowledge of the direct perpetrator’s
unlawful intent and an intent to assist in achieving those unlawful
ends,” and (3) “conduct by the aider and abettor that in fact assists the
achievement of the crime.” (Perez, at p. 1225).
       With respect to murder and attempted murder “the aider and
abettor must know and share the murderous intent of the actual
perpetrator.” (People v. McCoy (2001)
25 Cal.4th 1111, 1118
.) An aider
and abettor may be “convicted of first degree premeditated murder
based on direct aiding and abetting principles.” (People v. Chiu (2014)
59 Cal.4th 155, 166
[superseded by statute on other grounds, as
explained in People v. Lewis (2021)
11 Cal.5th 952, 959, fn. 3
].) “An



                                    8
aider and abettor who knowingly and intentionally assists a
confederate to kill someone could be found to have acted willfully,
deliberately, and with premeditation, having formed his own culpable
intent. Such an aider and abettor, then, acts with the mens rea
required for first degree murder.” (Chiu, at p. 167.) As for attempted
murder, when “there are multiple possible victims of the attempted
murder, the prosecution must establish that defendant intended to kill
each victim for each count charged.” (People v. Virgo (2013)
222
Cal.App.4th 788, 798
.)
              1.    De La Rocha’s convictions
      De La Rocha argues that the evidence was insufficient to prove
that she knew Macias intended to kill the four victims and that she
intended to assist him in doing so.
      “Because intent can seldom be proven by direct evidence, it
typically is inferred from the circumstances.” (People v. Owens (2022)
78 Cal.App.5th 1015
, 1025.) In determining whether a defendant
intended to aid and abet a crime, relevant factors include the
defendant’s presence at the scene of the crime, failure to prevent the
crime, companionship, and conduct before and after the crime. (People
v. Nguyen (2015)
61 Cal.4th 1015, 1054
; People v. Glukhoy (2022)
77
Cal.App.5th 576
, 599.)
      Substantial evidence supports the determination that De La
Rocha shared Macias’s intent to kill, or attempt to kill, the four victims
and that she intended to assist him in carrying out the offenses.
Shortly before the offenses, a man argued with De La Rocha and
pointed a gun at her. Separately, a member of the group of four
teenagers—most of whom were wearing red, and whom Macias
challenged by yelling “Suwoop”—pointed a gun at Macias, causing him
to run. Minutes later, De La Rocha stopped and let Macias and Loza
into her SUV. Loza explained that a “gang fool was gonna shoot the
homegirl” and how Macias said a group of “Blacks” wearing red pointed




                                    9
a gun at him. Macias said, “I wanna bust at them and shit,” and Loza
responded, “Let’s go.”
      The evidence thus shows that Loza and Macias intended to
search for the victims and “bust at” them, and that De La Rocha (who
was driving the vehicle carrying Loza and Macias) was aware of this
retaliatory intent. Further evidence shows that De La Rocha intended
to assist, and did assist, in the killings. The SUV, driven by De La
Rocha, circled around the area, driving back and forth, searching for
the victims. When the victims were spotted, the vehicle made a U-turn,
accelerated, and pulled up next to them, demonstrating that De La
Rocha targeted the group. The evidence further demonstrated that De
La Rocha knew her passengers were armed: M.W. saw a gun on the
front passenger’s lap, and both Macias and Loza said that they had
firearms. De La Rocha then said to the teenagers, “ ‘Be safe.’ ” M.W.
said the threat made him feel “there’s no other worse,” and caused the
group to “instantly start[] running” out of fear. Soon after, Macias
hopped out of the SUV and started “shooting everybody.” He shot to
kill—each of the four victims was hit by a bullet, and two were killed.
      Substantial evidence supports the jury’s finding that De La
Rocha shared Macias’s intent to kill, and attempt to kill, the victims.
(See People v. Nguyen, supra,
61 Cal.4th at p. 1054
; People v. Glukhoy,
supra, 77 Cal.App.5th at p. 599 [relevant factors in proving intent
include presence at the scene of the crime, failure to prevent it,
companionship, and conduct before and after].) She was present at the
scene of the crime; indeed, she intentionally transported her
confederates to the scene of the shooting. She did not prevent the crime
but rather facilitated it. Substantial evidence also proved
companionship. The evidence demonstrated that De La Rocha was a
gang associate and her companions were gang members, Macias got in
the SUV because he saw it was driven by his “homegirl” “Nancy” (De
La Rocha’s first name), and Loza said that she had done a “lot of work,”
knew “all the politics,” and was “down.” And De La Rocha’s conduct



                                  10
after the shooting—driving her confederates away from the scene,
parking in a location where they could wipe down the vehicle and
dispose of evidence, and then walking away from the vehicle with her
fellow perpetrators—likewise supported the finding of intent.
       Arguing that the finding could only have been based on
speculation, not substantial evidence, De La Rocha cites to Juan H. v.
Allen (9th Cir. 2005)
408 F.3d 1262
(Juan H.), which explained that “a
‘reasonable’ inference is one that is supported by a chain of logic, rather
than . . . mere speculation dressed up in the guise of evidence.” (Id. at
p. 1277.) In Juan H., the defendant, after shots were fired into his
trailer, confronted, with his brother, two men with whom they had a
history of conflict. After the men said that they knew nothing about
the gunshots, the defendant’s brother pulled a shotgun and fired twice,
killing one victim. (Id. at pp. 1266–1267.) In granting a petition for
writ of habeas corpus, the Ninth Circuit found that the record
contained no evidence that the defendant knew his brother would
assault or murder the victims, or any evidence that the defendant
intended to assist his brother in doing so. (Id. at pp. 1278–1279.)
       Juan H. is distinguishable. Among other things, the Juan H.
opinion found lacking support in the record for any conclusion that the
defendant left the crime scene in common flight, had a motive for
murder, knew that his brother would assault the victims, or that he
“intended, through his actions, to assist [the brother] in committing
first-degree murder.” (
408 F.3d at p. 1278
.) The evidence in this case
is starkly different. Both De La Rocha and Macias had guns pointed at
them just prior to the incident, De La Rocha was aware of the plan to
murder the victims, she facilitated the plan by targeting the victims,
and she drove her confederates as they fled from the crime scene.
       De La Rocha argues that different inferences should be drawn
from the evidence but fails to recognize the governing standard of
review. “A reversal for insufficient evidence ‘is unwarranted unless it
appears “that upon no hypothesis whatever is there sufficient



                                    11
substantial evidence to support” ’ the jury’s verdict.” (People v.
Zamudio (2008)
43 Cal.4th 327, 357
.) Substantial evidence supported
the murder and attempted murder counts, and the jury could
reasonably find De La Rocha guilty beyond a reasonable doubt for these
offenses.
             2.    Loza’s convictions
       Loza similarly argues that substantial evidence did not support
the findings that he knew Macias intended to kill the victims or that
Loza promoted the killings. He asserts that Macias was a lone actor.
       As with De La Rocha, substantial evidence reasonably supports
the conclusion that Loza did know of Macia’s intent, that he shared the
intent, and that he assisted in achieving the objective. (See Perez,
supra,
35 Cal.4th at p. 1225
.) Macias was certainly not a lone actor.
Loza was present in the SUV with his fellow gang member Macias and
his gang associate De La Rocha after both had guns pulled on them and
as they searched for the victims in order to retaliate. Loza told the
informant that a “gang fool was gonna shoot the homegirl,” that a
group pointed a gun at Macias, and that the victims were “ ‘suwooping’
in the wrong place.” When Macias said, “I wanna bust at them and
shit,” Loza responded, “Let’s go,” encouraging (rather than preventing)
the shootings. Loza himself carried a gun during the incident and
bragged about how the victims were “put down.” During the incident
he kept his iPhone off, demonstrating that he was aware of the nature
of the encounter, and afterward he “cleaned all [his] shit.” Following
the incident, he was captured on video, still in the presence of his
confederates. Later, he got a “BK” tattoo on his right hand,
demonstrating that he took credit for killing a Blood gang member.
       Substantial evidence thus reasonably demonstrated that Loza
shared Macias’s intent to kill the four victims. Loza’s presence before,
during, and after the shootings, his encouragement of the crimes, his
companionship with his confederates, and his conduct around the time
of the incident, demonstrated that he intended to aid and abet, and did



                                  12
aid and abet, the murders and attempted murders. (See People v.
Nguyen, supra,
61 Cal.4th at p. 1054
; People v. Glukhoy, supra, 77
Cal.App.5th at p. 599.) Simply because it is possible that different
conclusions may have been drawn from the evidence does not warrant
reversal. (People v. Ewing (2016)
244 Cal.App.4th 359, 380
[“That the
evidence might also reasonably be reconciled with a contrary finding,
as defendant argues, does not warrant reversal”].)
       B.    Count 5
       De La Rocha and Loza also argue that their convictions on
count 5, for conspiracy to commit murder, is not supported by
substantial evidence.
       The crime of conspiracy has four elements: “(1) the existence of
an agreement between at least two persons; (2) the specific intent to
agree to commit an offense; (3) the specific intent to commit the offense
that is the object of the agreement; and (4) an overt act in furtherance
of the conspiracy, which may be committed by any conspirator.”
(People v. Ware (2022)
14 Cal.5th 151, 163
.) Mere knowledge and
approval of the purpose of the conspiracy is insufficient to support a
conviction. (Id. at p. 166.)
       The agreement to commit the offense “must often be proved
circumstantially.” (People v. Homick (2012)
55 Cal.4th 816, 870
.)
“ ‘ “The existence of a conspiracy may be inferred from the conduct,
relationship, interests, and activities of the alleged conspirators before
and during the alleged conspiracy.” ’ ” (Ibid.)
       Substantial evidence supported the conclusion that there was an
agreement among the perpetrators, who each had the specific intent
and agreed to commit murder, and that overt acts were committed in
furtherance of the conspiracy. The evidence showed that each
defendant was a member or associate of the 18th Street gang, and that
they had a motive to kill the four victims in retaliation for entering
their territory and threatening Macias. After Macias and Loza entered
De La Rocha’s SUV, the group discussed how both Macias and De La



                                    13
Rocha had been threatened with guns. When Macias said, “I wanna
bust at them and shit,” Loza agreed, saying, “Let’s go.” De La Rocha
then furthered the conspiracy, searching for the victims and stopping
next to them when she found them, all while knowing that her
accomplices had guns. After the shootings occurred, the defendants all
fled together. (See People v. Jurado (2006)
38 Cal.4th 72, 121
[evidence
that defendants were alone together shortly before murder, as well as
later conduct, supported conclusion that defendants had specific intent
to agree to commit murder].) Moreover, nothing was taken from the
victims, indicating the motivation was revenge. (See People v. Beck
and Cruz (2019)
8 Cal.5th 548, 629
.) Given these and the related facts,
substantial evidence supported the convictions for conspiracy.
II.    Claimed Failure to Instruct on Lesser Included Offense
       With respect to count 5, the jury was instructed only on
conspiracy to commit murder. De La Rocha and Loza both contend that
the trial court had a duty to instruct, and failed to instruct, on a lesser
included offense of conspiracy to commit assault with a firearm.
       “ ‘A trial court has a sua sponte duty to “instruct on a lesser
offense necessarily included in the charged offense if there is
substantial evidence the defendant is guilty only of the lesser.”
[Citation.] Substantial evidence in this context is evidence from which
a reasonable jury could conclude that the defendant committed the
lesser, but not the greater, offense. “The rule’s purpose is . . . to assure,
in the interest of justice, the most accurate possible verdict
encompassed by the charge and supported by the evidence.” [Citation.]
In light of this purpose, the court need instruct the jury on a lesser
included offense only “[w]hen there is substantial evidence that an
element of the charged offense is missing, but that the accused is guilty
of” the lesser offense.’ ” (People v. Landry (2016)
2 Cal.5th 52, 96
.) We
review de novo whether the trial court improperly failed to instruct on
a lesser included offense. (People v. Souza (2012)
54 Cal.4th 90, 113
.)




                                     14
       A lesser offense is necessarily included in the charged offense
only if it meets either the “ ‘elements’ test” or the “ ‘accusatory pleading’
test.” (People v. Lopez (1998)
19 Cal.4th 282, 288
.) “The elements test
is satisfied when ‘ “all the legal ingredients of the corpus delicti of the
lesser offense [are] included in the elements of the greater offense.” ’ ”
(Ibid.) The “accusatory pleading test” is satisfied “ ‘ “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.” ’ ” (Id. at pp. 288–289.)
       The parties agree that the issue of whether the trial court had a
duty to instruct on a lesser included offense of conspiracy to commit
assault with a firearm implicates only possible application of the
accusatory pleadings test, not the elements test. Case law on the issue
of whether conspiracy to commit to assault with a firearm is a lesser
included offense of conspiracy to murder under the accusatory
pleadings test has mapped several differing paths. People v. Cook
(2001)
91 Cal.App.4th 910
(Cook) concluded that allegations of overt
acts in furtherance of a conspiracy to murder—that defendants
acquired a gun and shot and killed the victim—provided adequate
notice of conspiracy to assault with a firearm as a lesser included
offense. (Id. at pp. 919–922.) People v. Fenenbock (1996)
46
Cal.App.4th 1688, 1709
, on the other hand, found that “[b]ecause overt
acts need not be criminal offenses or even acts committed by the
defendant, the description of the overt acts in the accusatory pleading
does not provide notice of lesser offenses necessarily committed by the
defendant.” (Id. at p. 1709, fn. omitted.) Fenenbock instead concluded
that “it is the description of the agreement within the accusatory
pleading, not the description of the overt acts, which must be examined
to determine whether a lesser offense was necessarily the target of the
conspiracy.” (Ibid.) Because the information in Fenenbock alleged only
that the defendants conspired to commit murder, the panel concluded




                                     15
that the trial court was not required to instruct on conspiracy of a
lesser offense. (Ibid.)
       More recently, People v. Cortez (2018)
24 Cal.App.5th 807
(Cortez)
agreed with Cook “to the extent that the trial court may consider overt
act allegations when determining whether sua sponte instruction on a
lesser included conspiracy offense is required.” (Cortez, at p. 820.)
Cortez disagreed with Cook, however, that a lesser included offense of
conspiracy to commit assault with a firearm was required by the overt
act allegations. (Cortez, at p. 820.) The Cortez court noted that “the
accusatory pleading did not allege that the defendants agreed to
commit any crime, other than murder. There were no allegations, even
in the overt acts allegations, that the defendants agreed to commit
merely an assault.” (Ibid.) Applying this finding, the court concluded
that the overt acts alleged in Cortez “did not render defendant’s
allegedly lesser offenses necessarily included. The description of the
conspiratorial agreement to commit murder cannot be fairly read to
describe or encompass either conspiracy to commit assault with a
firearm or conspiracy to shoot at an inhabited dwelling,” and therefore
the trial court did not err by not instructing on conspiracy to commit a
lesser offense. (Id. at p. 821.)
       The holding of Cortez applies equally well here. The operative
information in this case alleged that the defendants “did unlawfully
conspire together . . . to commit the crime of murder.” This was the
only crime that the information alleged the defendants agreed to
commit. Of the 15 alleged overt acts, only one touched upon firearm
use, stating, “One coconspirator exited the SUV and shot” the victims.
The allegations, including the alleged overt acts, therefore did not
describe any agreement to commit assault with a firearm. Rather, the
only agreement alleged in the information—even considering the
totality of the alleged overt acts—was “conspir[ing] together” to commit
“murder.” As in Cortez, this description of the conspiratorial agreement




                                   16
cannot be read to encompass conspiracy to commit assault with a
firearm.
       Even if there were error, no prejudice is apparent. (See People v.
Rogers (2006)
39 Cal.4th 826
, 867–868 [“The erroneous failure to
instruct on a lesser included offense generally is subject to harmless
error review under the standard of People v. Watson (1956)
46 Cal.2d
818
, at pages 836–837].) “Error in failing to instruct the jury on a
lesser included offense is harmless when the jury necessarily decides
the factual questions posed by the omitted instructions adversely to
defendant under other properly given instructions.” (People v. Lewis
(2001)
25 Cal.4th 610, 646
.) The jury was instructed that to find
appellants guilty of first degree murder, and separately of attempted
willful, deliberate, and premeditated murder, appellants had to have
the specific intent to kill. The jury found appellants guilty of first
degree murder and attempted willful, deliberate, and premeditated
murder, thereby necessarily finding that they had the specific intent to
kill required for conspiracy to commit murder. Thus, based on the
instructions that were given and the jury’s verdicts, there is no
reasonable likelihood that the jury, if differently instructed on count 5,
would have found that appellants conspired to commit only a lesser
offense of assault with a firearm.
III. Denial of Separate Trials and Admission of Statements
Made to the Informant
       Next, both Loza and De La Rocha contend that the trial court
erred in denying requests for separate trials. Prior to trial, Loza
argued that his trial should be severed from Macias’s based on claimed
antagonistic defenses, while De La Rocha requested that her trial be
severed from both Macias’s and Loza’s due to out-of-court statements
they made identifying her as the driver. The trial court declined to
sever the trials, and separately overruled objections by De La Rocha to
admission of the statements made by Macias and Loza to the
informant. Following the verdicts, the trial court denied motions for



                                    17
new trials from both appellants in which they argued, among other
things, that the trials should have been severed.
       “When two or more defendants are jointly charged with any
public offense, whether felony or misdemeanor, they must be tried
jointly, unless the court order[s] separate trials.” (§ 1098.) “Section
1098 establishes a clear legislative preference for joint trials where . . .
multiple defendants are charged with the same crimes against the
same victims.” (People v. Gamache (2010)
48 Cal.4th 347, 381
.) The
trial court may, however, “ ‘in its discretion, order separate trials “in
the face of an incriminating confession, prejudicial association with
codefendants, likely confusion resulting from evidence on multiple
counts, conflicting defenses, or the possibility that at a separate trial a
codefendant would give exonerating testimony.” ’ ” (People v. Letner
and Tobin (2010)
50 Cal.4th 99, 150
.) “We review a trial court’s denial
of a severance motion for abuse of discretion based on the facts as they
appeared at the time the court ruled on the motion.” (People v. Avila
(2006)
38 Cal.4th 491, 575
.) “If the court’s joinder ruling was proper at
the time it was made, a reviewing court may reverse a judgment only
on a showing that joinder ‘ “resulted in ‘gross unfairness’ amounting to
a denial of due process.” ’ ” (Ibid.)
       The trial court’s denial of a motion for new trial is also reviewed
“ ‘under a deferential abuse-of-discretion standard.’ [Citations.] ‘ “A
trial court’s ruling on a motion for new trial is so completely within
that court’s discretion that a reviewing court will not disturb the ruling
absent a manifest and unmistakable abuse of that discretion.” ’ ”
(People v. Thompson (2010)
49 Cal.4th 79, 140
.)
       A.     Loza’s severance claim
       Loza filed a pretrial motion seeking a separate trial from Macias.
Loza argued in the motion that his defense at trial would be that
Macias, not Loza, was the shooter. He also asserted that Macias would
likely claim that Loza was the shooter. These assertions were
predicated on statements made to police officers in which both Macias



                                     18
and Loza, following their arrests, blamed the other for the shootings.
Loza argued that acceptance by the jury of Macias’s defense would
necessarily lead to a conviction of Loza, and the trial should be
separated due to antagonistic defenses. At the hearing on the matter,
Loza’s counsel acknowledged that the prosecution stated that it did not
intend to introduce the statements made to the officers. Nevertheless,
counsel argued that Macias might testify and place the blame on Loza,
and that counsel for Macias and Loza were likely to argue that the
other defendant was the shooter. The trial court found these stated
reasons insufficient to justify severing the trials. Following trial, the
trial court denied a motion for new trial in which Loza argued, among
other things, that the trials against him and Loza should have been
separated.
       Mutually antagonistic defenses are not per se prejudicial. (People
v. Daveggio and Michaud (2018)
4 Cal.5th 790, 819
.) Rather, severance
is required for conflicting defenses only when “ ‘ “the conflict is so
prejudicial that [the] defenses are irreconcilable, and the jury will
unjustifiably infer that this conflict alone demonstrates that both are
guilty.” ’ ” (People v. Coffman and Marlow (2004)
34 Cal.4th 1, 41
.) “ ‘If
the fact of conflicting or antagonistic defenses alone required separate
trials, it would negate the legislative preference for joint trials and
separate trials “would appear to be mandatory in almost every case.” ’ ”
(People v. Thompson (2016)
1 Cal.5th 1043, 1081
.) “If the moving
party’s guilt can be established by sufficient independent evidence, ‘it is
not the conflict alone that demonstrates . . . guilt,’ and severance is not
required.” (People v. Winbush (2017)
2 Cal.5th 402, 456
.)
       We conclude that the trial court did not abuse its discretion in
denying Loza’s motion for separate trials and his new trial motion. Nor
did the trial court’s denials result in gross unfairness. Loza was not
likely to obtain a better result had the trials been separated.
       The case against the defendants was a “ ‘ “ ‘classic case’ ” ’ for a
joint trial, because defendants mutually were charged with the same



                                    19
crimes arising from the same events.” (People v. Letner and Tobin,
supra,
50 Cal.4th at p. 150
.) The fact that Macias and Loza might
attempt to “fix blame on each other did not by itself require separate
trials.” (Ibid.) The conflict between Loza and Macias at trial was
relatively minimal, given that the statements made to the police in
which each blamed the other were not introduced, and neither
defendant testified. While it is true that, during closing argument,
counsel for each defendant appeared to blame the other defendant for
the shooting, it is not probable that this argument alone led the jury to
believe that both were guilty. (See People v. Coffman and Marlow,
supra,
34 Cal.4th at p. 41
.)
       Instead, in this case there existed “sufficient independent
evidence” establishing Loza’s guilt. (People v. Winbush, supra,
2
Cal.5th at p. 456
.) As detailed above, among other evidence, the video
surveillance placed him at the scene of the crime and later fleeing with
his accomplices. As Loza told the informant, he responded, “Let’s go” to
Macias’s statement that “I wanna bust at them and shit.” Loza stated
that he carried a gun during the incident and bragged about how the
victims were “put down.” And after the incident, he got a “BK” tattoo
on his right hand.
       Loza was tried under a theory of aiding and abetting the murders
and attempted murders, while the jury found that Macias personally
discharged a firearm. The jury’s verdicts were not likely compelled by
Loza and Macias having antagonistic defenses. Rather, the jury’s
findings that Macias was the defendant who pulled the trigger, and
that Loza aided and abetted the offenses, were compelled by the
evidence itself. Loza thus fails to demonstrate that the trial court
abused its discretion, or that reversal is otherwise warranted.
       B.    De La Rocha’s claims regarding statements made to
the informant
       Prior to trial, De La Rocha filed a motion for severance, seeking a
separate trial from both codefendants. The motion was based on the



                                   20
ground that the prosecution would introduce out-of-court statements by
Macias and Loza identifying her as the driver. Later, following trial,
De La Rocha filed a motion for new trial, arguing, among other things,
that a separate trial should have been ordered. The motion was based,
in part, on two new grounds—that severance should have been granted
because of antagonistic defenses, and that severance should have been
granted to prevent introduction of certain gang evidence.
       De La Rocha repeats these arguments on appeal. The record
shows, however, that De La Rocha, upon her counsel’s request, took the
initial motion off calendar and never pressed for a pretrial ruling on the
issue. Further, she did not raise the latter two grounds until after
trial. Although we could properly find the first severance claim
forfeited (see People v. Pinholster (1992)
1 Cal.4th 865, 931
), we elect to
address it, in part because De La Rocha separately challenged
admission of the statements to the informant, and we herein address
her argument regarding that issue.
       With respect to the latter two issues, though—severance based on
antagonistic defenses and introduction of gang evidence—De La Rocha
clearly forfeited these claims. (People v. Tran (2022)
13 Cal.5th 1169
,
1197 [declining to address issue because appellant forfeited challenge
by not “mov[ing] for severance” on stated ground]; see also People v.
Pinholster, supra,
1 Cal.4th at p. 931
; People v. Salas (1972)
7 Cal.3d
812, 817
; People v. Simon (2001)
25 Cal.4th 1082
; 1103.) The record
demonstrates that, prior to trial, De La Rocha was aware of the
possibility of what she claims were antagonistic defenses and the
likelihood of the introduction of gang evidence but did not move for
severance on these grounds, giving us no cause to address them on
appeal.
       Returning to the first ground, De La Rocha argues that severance
of trials was necessary because the statements made by Loza and
Macias to the jailhouse informant, in which they identified De La
Rocha as the driver, were inadmissible against her. Separately, De La



                                    21
Rocha argues that—regardless of the issue of severance—the
statements were insufficiently trustworthy to be admitted against her,
and admission of the statements deprived her of her rights to
confrontation and due process.3 Because we find that the statements
were properly admitted, we reject these contentions.
              1. The statements to the informant were properly admitted
        Generally, under the Aranda/Bruton doctrine, a defendant’s
Sixth Amendment right to confrontation is violated if, during a joint
trial, the trial court admits a codefendant’s out-of-court statement
implicating the defendant, unless the codefendant testifies and is
subject to cross-examination. (People v. Capistrano (2014)
59 Cal.4th
830, 869
[overruled on other grounds in People v. Hardy (2018)
5
Cal.5th 56, 104
]; see generally People v. Aranda (1965)
63 Cal.2d 518
;
Bruton v. United States (1968)
391 U.S. 123
[
88 S.Ct. 1620
].) In
Crawford v. Washington (2004)
541 U.S. 36
[
124 S.Ct. 1354
]
(Crawford), and following opinions, however, the United States
Supreme Court narrowed the scope of the right to confrontation to bar
only “testimonial” out-of-court statements not subject to cross-
examination. (Crawford, at p. 68; see also Davis v. Washington (2006)
547 U.S. 813, 824
[
126 S.Ct. 2266
]; Whorton v. Bockting (2007)
549 U.S.
406, 420
[
127 S.Ct. 1173
].) A statement is “testimonial” under this
standard if it was “ ‘made with some degree of formality or solemnity,’ ”
and “the primary purpose of the statement must ‘pertain[] in some
fashion to a criminal prosecution.’ ” (People v. Leon (2015)
61 Cal.4th
569, 603
.) Crawford and subsequent United States Supreme Court
authority thereby limited the right of confrontation described by the
Aranda/Bruton doctrine to cover only “testimonial” statements by a
codefendant. (People v. Tran, supra, 13 Cal.5th at p. 1195; People v.


      3 At various stages throughout the pretrial proceedings, De La
Rocha made these same arguments in objecting to introduction of the
statements. The arguments are properly raised on appeal.


                                   22
Cortez (2016)
63 Cal.4th 101, 129
; People v. Washington (2017)
15
Cal.App.5th 19, 29
(Washington); People v. Arceo (2011)
195
Cal.App.4th 556, 571
.)
       There is no question that, in this case, the statements made by
Loza and Macias to the informant were not testimonial. Crawford
described “ ‘testimonial’ statements” as including “ ‘statements that
were made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a
later trial.’ ” (541 U.S. at pp. 51–52.) The court continued:
“Statements taken by police officers in the course of interrogations are
also testimonial under even a narrow standard.” (Id. at p. 52.) In
contrast, it has been repeatedly held that statements made unwittingly
to a government informant (as in this case) are not testimonial. (Davis
v. Washington, supra,
547 U.S. 813 at p. 825
, citing Bourjaily v. United
States (1987)
483 U.S. 171
, 181–184 [
107 S.Ct. 2775
,
97 L.Ed.2d 1447
];
People v. Almeda (2018)
19 Cal.App.5th 346
, 362–363 (Almeda); People
v. Gallardo (2017)
18 Cal.App.5th 51
, 67–68; People v. Arauz (2012)
210
Cal.App.4th 1394
, 1401–1402 (Arauz).) De La Rocha criticizes this
authority and attempts to distinguish it, but these efforts are
unavailing. In the end, “[t]he last thing” Loza and Macias “expected
was for [their] statement[s] to be repeated in court,” and thus the
statements cannot be considered testimonial. (
Arauz, supra, at
p. 1402
.) Further, the fact that the informant may have received some
information from police regarding the operation does not change the
nature of the nontestimonial statements. (Ibid.) The admission of the
statements therefore did not violate De La Rocha’s right to
confrontation.
       Nor did admission of the statements violate De La Rocha’s due
process rights. In Washington, supra, we rejected a similar argument
that due process provided an alternative ground for challenging
admission of nontestimonial statements by a codefendant, declining to
“breathe life back into the Aranda/Bruton doctrine when the



                                  23
codefendant’s confession is nontestimonial.” (
15 Cal.App.5th at p. 30
.)
Among other reasons for so concluding, we found no basis for
construing the broader guarantees of due process to prohibit what the
more specific constitutional guarantee of confrontation permits. (Ibid.)
Moreover, pertinent to our discussion below regarding the
trustworthiness of the statements, De La Rocha fails to demonstrate
that admission of the statements was so unreliable as to be
fundamentally unfair. (See People v. Dalton (2019)
7 Cal.5th 166, 209
;
People v. Albarran (2007)
149 Cal.App.4th 214, 229
.)
       In arguing that Macias’s and Loza’s statements to the informant
should not have been admitted into evidence, De La Rocha contends
that the statements were insufficiently trustworthy to be admitted as
declarations against penal interest. (Evid. Code, § 1230.) We review
the trial court’s evidentiary rulings for abuse of discretion. (People v.
Lawley (2002)
27 Cal.4th 102, 153
.) In a situation like this, where the
declarants are unavailable to testify, “[t]o be admissible, the out-of-
court statement must be trustworthy and against the declarant’s penal
interest.” (Arauz, supra,
210 Cal.App.4th at p. 1400
.) “There is no
litmus test for the determination of whether a statement is trustworthy
and falls within the declaration against interest exception. The trial
court must look to the totality of the circumstances in which the
statement was made, whether the declarant spoke from personal
knowledge, the possible motivation of the declarant, what was actually
said by the declarant and anything else relevant to the inquiry.”
(People v. Greenberger (1997)
58 Cal.App.4th 298, 334
.) “[S]tatements
by a nontestifying codefendant that implicate the defendant, even by
name, may be admissible if they are disserving to the codefendant’s
interest and are not exculpatory, self-serving, or collateral.” (Almeda,
supra,
19 Cal.App.5th at p. 364
.)
       De La Rocha asserts that Loza’s and Macia’s statements lacked
trustworthiness because they were made by suspects who were both 19
years old to a purported gang member inmate in his 30’s. She contends



                                   24
that the suspects, in speaking with the informant, might have been
anxious and wanting to demonstrate toughness or bravado. These
speculative conjectures do not demonstrate that the trial court erred in
finding the statements sufficiently trustworthy. As in
Arauz, supra,
comments in which a codefendant implicated himself in statements to
an informant showed “ ‘trustworthiness’ ” and were “ ‘specifically
disserving.’ ” (
210 Cal.App.4th at p. 1401
.) Both Loza and Macias told
the informant that they were directly involved in the shooting, and
recounted what happened before and after the incident. They related
numerous specific details, many of which were corroborated by the
surveillance footage and the other’s statement. Their statements
identifying the other defendants as 18th Street gang members or
associates were also corroborated by further evidence. Moreover,
neither attempted to exculpate himself or place the blame on another,
providing ample support for the finding that the statements were
trustworthy. (See Almeda, supra,
19 Cal.App.5th at p. 366
.)
      De La Rocha avers that Loza’s statement to the informant was
unreliable because Loza took credit for the murders. Loza did not
actually tell the informant, however, that he personally shot the
victims. Rather, when the informant asked, “How many you put down,
though?” Loza responded “two” and there were two “attempts.” He
also said that he had a “regular” gun, without an extended clip. While
these statements could be understood to mean that Loza was taking
credit for personally shooting the victims, they could also reasonably be
understood to indicate that Loza was part of the group that shot the
victims and that he carried a gun while doing so, consistent with the
prosecution’s case that he aided and abetted the offenses, and the jury’s
verdicts. In any event, “We do not resolve conflicting facts or determine
witness credibility” in determining whether a statement is sufficiently
trustworthy to be admitted as a declaration against penal interest.
(Almeda, supra,
19 Cal.App.5th at p. 368
.)




                                   25
      We accordingly conclude that the trial court did not err in
admitting the statements made by Loza and Macias to the informant.
            2.     No basis for severance
      De La Rocha further contends that her trial should have been
severed from her codefendants’ because the statements they made to
the informant were inadmissible. Because we conclude that the trial
court properly ruled that the statements were admissible, De La
Rocha’s severance argument fails. (See People v. Avila, supra,
38
Cal.4th at p. 575
[appellate court reviews denial of severance motion
based on facts at time of ruling].) Nor is any gross unfairness
apparent, given that the statements were properly introduced.
IV. De La Rocha’s Contentions re Denial of a Pinpoint
Instruction and Sustained Objection During Closing Argument
      De La Rocha next argues, on an individual basis, that the trial
court erred by refusing to give a pinpoint instruction, initially
requested by Loza’s counsel, that one defendant could not compel the
testimony of another. De La Rocha additionally contends that the trial
court erred by sustaining an objection to a statement made by her
attorney during closing argument that she could not force Loza and
Macias to testify, as counsel wished to emphasize that the jurors should
consider the statements made to the informant with caution because
the statements were untested through cross-examination. We address
these arguments in turn.
      A.    Denial of pinpoint instruction
      During discussions regarding jury instructions, counsel for Loza
requested a pinpoint instruction stating that one defendant could not
compel the testimony of another. Counsel requested that the
instruction be given by adding language to CALCRIM No. 358.4


      4 CALCRIM No. 358 pertains to an out-of-court statement made
by a defendant. The instruction given in this case read: “You have
heard evidence that defendants Christian Macias and Edwin Loza
made oral statements before the trial. You must decide whether a

                                  26
Counsel for De La Rocha joined in the request. The trial court denied
the request, finding, in part, that the requested instruction was “not
something that is required.”
        De La Rocha argues that the trial court erred by declining to
amend CALCRIM No. 358 as requested. In support of her argument,
she cites to People v. Duke (1999)
74 Cal.App.4th 23
(Duke), in which
the appellate court found that admission of out-of-court statements
implicating the defendant, made by a codefendant, did not violate the
right to confrontation since they fell under the “ ‘residual
trustworthiness test’ ” as containing “particularized guarantees of
trustworthiness such that adversarial testing would be expected to add
little, if anything, to their reliability.” (Id. at pp. 29–31.) In dicta, the
Duke court noted that, in addition to the statements meeting the
residual trustworthiness test, “[a]dded to the mix,” “the trial court
instructed the jury that it could consider the fact that [the defendant]
was not able to cross-examine [the codefendant] about his statements
in assessing those statements, thus taking some of the sting out of the
trial court’s ruling.” (Id. at pp. 31–32.)
        Duke does not lead us to conclude that the trial court in this case
should have expressly instructed that one defendant could not compel
the testimony of another. First, Duke appears to have little, if any,
relevance post-Crawford, as the residual trustworthiness test utilized
in Duke was abandoned in Crawford in favor of the rule that
Confrontation Clause limitations apply only to testimonial out-of-court
statements. (
Crawford, supra,
541 U.S. at pp. 60, 68.) The Duke
court’s observation that the instruction took “some of the sting out of
the trial court’s ruling” (
Duke, supra,
74 Cal.App.4th at pp. 31–32) was



defendant made any such statement in whole or in part. If you decide
that the defendant made such a statement, consider the statement
along with all the other evidence in reaching your verdict. It is up to
you to decide how much importance to give to the statement.”


                                     27
made in the context of a now abrogated test, in which the admissibility
of the out-of-court statements was more uncertain. Second, even under
the standard that applied at the time, an instruction that a
codefendant could not be forced to testify was not required. At the
most, Duke noted that the instruction was helpful in that case, but it
did not purport to dictate that a similar instruction be given in other
cases. (Ibid.)
       “ ‘[A] trial court may properly refuse an instruction offered by the
defendant if it incorrectly states the law, is argumentative, duplicative,
or potentially confusing [citation], or if it is not supported by
substantial evidence [citation].’ [Citation.] Instructions that highlight
specific evidence, or invite the jury to draw inferences favorable to one
side, are considered argumentative and generally should not be given.”
(People v. Bell (2019)
7 Cal.5th 70, 107
.) Here, given that there was no
requirement that the requested instruction be given, the trial court
acted within its discretion in refusing the request. The requested
instruction could have led the jury to improperly infer that the out-of-
court statements by Macias and Loza were untrustworthy because the
statements were not subject to cross-examination.
       In an analogous context, our Supreme Court found that the trial
court was not required to instruct the jury to view an accomplice’s out-
court-statements with caution, or to require corroboration, when the
statements were declarations against penal interest. (People v. Brown
(2003)
31 Cal.4th 518, 556
.) That was because the statements were
“made under conditions sufficiently trustworthy to permit their
admission into evidence despite the hearsay rule.” (Ibid.) Just so here.
As explained above, the statements by Macias and Loza to the
informant were declarations against penal interest. No instruction
regarding inability to call the codefendants to testify was required, and
the trial court did not err in denying the requested amendment to the
instruction.




                                    28
      B.     Objections during closing argument
      De La Rocha continues that the trial court erred by limiting her
counsel’s closing argument. During a lengthy closing argument, De La
Rocha’s attorney discussed the statements made by Macias and Loza to
the informant and noted that the statements were admissible and
might be used against De La Rocha. The following exchange before the
jury then took place:

      De La Rocha’s attorney: Now, one of the basic tenets of the
      American criminal justice is the opportunity to cross-examine the
      witnesses against you. I didn’t have the opportunity to do that.
      We can’t do that. I can’t compel Mr. Loza or Mr. Macias to get up
      on the witness stand because every criminal defendant deserves
      the right to remain silent. No one can force them to get up on the
      witness stand. Well, then we’re left with a situation where—
      Prosecution: Your honor, this is improper argument.
      The court: Yes, I agree.
      De La Rocha’s attorney: The statements that these two guys
      made were untested. They are just simply recordings of them
      talking to Perkins agents without Ms. De La Rocha being able to
      test them.
      Prosecution: Same objections, your honor.
      The Court: Well, that objection is overruled.
      De La Rocha’s attorney: I ask that you consider their statements
      in that vein.

Later during closing argument, after De La Rocha’s attorney stated, “I
ask that you consider the fact that they are hearsay declarants, and
you use that to assess the credibility of whether or not they should be
used against Ms. De La Rocha,” the trial court again overruled an
objection by the prosecution that it was “improper argument.”




                                   29
      De La Rocha asserts that she was prejudiced by the trial court’s
sustaining of the objection to the statement that Macias and Loza could
not be forced to take the witness stand. A review of the relevant
proceedings themselves demonstrates that there was no prejudice. It
appears that De La Rocha’s attorney said what she wished to say.
Although the trial court sustained a single objection, it did not instruct
the jury to disregard the argument. Furthermore, De La Rocha’s
attorney continued with her argument, noting that the statements were
untested and asking the jury to consider the statements “in that vein.”
The trial court overruled an objection to that argument. Later, the
attorney asked the jury to consider that the statements were hearsay
and use that to assess the credibility of the statements against De La
Rocha, to which the trial court again overruled an objection. It is
unclear what additional, substantive information counsel might have
imparted. Counsel argued to the trial court during a break in
proceedings that “because the statements of the codefendants were
untested through cross-examination that the jurors should view it with
caution,” but that message was already effectively communicated by
counsel to the jury. Thus, if there had been error in the sustaining of
the single objection, it was harmless.
      Regardless, De La Rocha does not demonstrate error. As noted
above, the fact that the out-of-court statements were not tested by
cross-examination had no legal effect on the reliability of the
statements. (See People v. Brown, supra,
31 Cal.4th at p. 556
.)
V.    Loza’s Contention that the Informant Dissuaded Him
From Obtaining Counsel
      Loza argues that his due process rights were violated because,
while speaking with the informant, the informant purportedly
discouraged him from consulting counsel. Loza contends: “While the
Supreme Court determined in Illinois v. Perkins (1990)
496 U.S. 292
[
110 S.Ct. 2394
(Perkins)] that, as a general matter, conversations
between a suspect and undercover agents do not implicate Miranda



                                   30
[Miranda v. Arizona (1966)
384 U.S. 436
[
86 S.Ct. 1602
,
16 L.Ed.2d 694
(Miranda)]] concerns, that holding did not extend to efforts by an agent
to precondition a suspect to waive his right to counsel or otherwise
discourage a suspect from consulting an attorney.”
      Loza bases his contention that the informant discouraged him
from seeking counsel on the following exchange:

      Loza: So if I’m here, I can’t—I can’t have a lawyer?
      Informant: Yeah, you can. You’re entitled to everything, my boy.
      You can do that. But you do that, it’s like, you know, you just
      wanna talk some shit, and they’re not gonna tell you nothing. All
      right. Fuck it.
      Loza: Oh, okay. Okay. Okay.
      Informant: Not telling you what to do, my boy, you know,
      you’re—
      Loza: Yeah.
      Informant: entitled to do what you want, my boy.
      Loza: Yeah.
      Informant: Just a little heads up, you know?
      Loza: Yeah.
      Informant: But at the same time, it’s, like, if you want, fucken,
      these fools fucken tell you something.
      Loza: Oh, yeah.
      Informant: You know? You could let them run their mouth.
      That’s what—I mean, I’m telling you from my personal
      experience. Like, with me, it’s, like, I’ve done—I remember the
      first time I did that shit, and it was, like, bye. Oh, I ended up in
      prison and shit. You know?
      Loza: Oh, I’ll ask—I’ll ask for—
      Informant: Yeah.
      Loza: You know? I think go like that.




                                   31
       Loza argues that he was prejudiced because, during their
conversation, the informant essentially became a “trusted advisor,”
and, after the informant made his comments regarding attorneys, Loza
made some (but not all) of the statements implicating himself in the
offenses. Loza implies, but does not actually claim, that if it were not
for the informant’s statements regarding attorneys, he may have
consulted an attorney instead of continuing to discuss his role in the
crimes.
       We conclude that Loza forfeited his claim that his due process
rights were violated by the informant’s statements regarding obtaining
a lawyer. In People v. Orozco (2019)
32 Cal.App.5th 802
(Orozco), we
addressed a similar due process claim. The defendant in Orozco
confessed to killing his infant daughter while speaking privately with
the child’s mother in a meeting that was orchestrated by police and
occurred after the defendant had been questioned by police and asked
for a lawyer. On appeal, the defendant argued that his confession
should have been suppressed as obtained in violation of due process.
We determined that the argument had been forfeited because the
defendant failed to make a due process-based objection in the trial
court. (Id. at p. 819.) Likewise, in this case, Loza did not object to
introduction of the statement to the informant on due process grounds.
He accordingly forfeited a due process challenge on appeal.
       In any event, even if the issue were properly raised, Loza fails to
establish a due process violation. In constructing his argument that he
was unfairly influenced by the informant, Loza relies, in part, on
Miranda. Miranda, however, only applies when the suspect is subject
to “custodial interrogation.” (Miranda, supra,
384 U.S. at p. 444
.) As
we noted in Orozco, “For purposes of Miranda, ‘interrogation’ means
‘express questioning’ or ‘words or actions on the part of the police . . .
that the police should know are reasonably likely to elicit an
incriminating response.’ (Rhode Island v. Innis (1980)
446 U.S. 291
,
300–301 [
64 L.Ed.2d 297
,
100 S.Ct. 1682
].)” (Orozco, supra, 32
32
Cal.App.5th at p. 813
.) Accordingly, “[i]mplicit in the definition of
‘interrogation’ is that (1) the suspect is talking to the police or an agent
of the police, and (2) the suspect is aware that he is talking to the police
or one of their agents.” (Orozco, at p. 813.) “Conversely, there is no
‘interrogation’ when a suspect speaks with someone he does not know is
an agent of the police.” (Id. at p. 814; see also
Perkins, supra,
496 U.S.
at p. 297
[“the danger of coercion results from the interaction of custody
and official interrogation”].) Thus, to the extent that Loza bases his
argument on a claimed Miranda violation, the argument fails.
(Perkins, at p. 297 [“We reject the argument that Miranda warnings
are required whenever a suspect is in custody in a technical sense and
converses with someone who happens to be a government agent”].)
       Although Loza acknowledges that he did not know that the
informant was an agent of the police, he nevertheless argues that the
statements he made to the informant following the conversation about
attorneys were involuntary and the product of coercion. “Involuntary
statements to police are inadmissible for all purposes.” (People v.
Miranda-Guerrero (2022)
14 Cal.5th 1, 20
.) “Statements are
involuntary when they are not the product of ‘ “ ‘a rational intellect and
free will.’ ” ’ ” (Ibid.) “A finding of coercive police activity is a
prerequisite to a finding that a confession was involuntary under the
federal and state Constitutions.” (People v. Maury (2003)
30 Cal.4th
342, 404
.) We consider the totality of the circumstances in determining
whether a confession was involuntary. (People v. Linton (2013)
56
Cal.4th 1146, 1176
.)
       Loza contends that the facts in this case are similar to those in
Collazo v. Estelle (9th Cir. 1991)
940 F.2d 411
, 414–417, in which the
Ninth Circuit held that a police officer resorted to coercive tactics in
effectively telling the defendant that he would be penalized if he did not
waive his prior invocation of his Miranda rights. The facts in this case
are not similar to Collazo. Loza was not coerced by a police officer to
waive his Miranda rights. Loza argues that the holding of Collazo



                                    33
should nevertheless still apply because the informant was an agent of
the police. Perkins and like authority dictate otherwise. “Questioning
by captors, who appear to control the suspect’s fate, may create
mutually reinforcing pressures that the Court has assumed will
weaken the suspect’s will, but where a suspect does not know that he is
conversing with a government agent, these pressures do not exist.”
(Perkins, supra,
496 U.S. at p. 297
.)
        Loza argues that this court should effectively expand Perkins and
find that the police abused their authority by coordinating with the
informant to convince Loza not to invoke his right to counsel. We see
no reason to do so. To the extent the police coordinated with the
informant regarding his comments about attorneys, “[t]he officers’
behind-the-scenes manipulation is, at most, a form of deception, but
‘ “[p]olice trickery . . . does not, by itself, render a confession
involuntary.” ’ ” (Orozco, supra,
32 Cal.App.5th at p. 819
.)
        Moreover, the premise of Loza’s argument—that he might have
stopped speaking about his role in the offenses if not for the informant’s
comments—is too speculative to support his challenge. “[T]here must
be a proximate causal connection between the deception or subterfuge
and the confession.” (People v. Musselwhite (1998)
17 Cal.4th 1216,
1240
.) The informant’s comments did not cause Loza to admit to the
crimes. Loza simply asked the informant whether he could have a
lawyer and the informant responded. Although the informant’s
comments could be understood as a suggestion not to ask for an
attorney, the informant also told Loza he was “Not telling you what to
do, my boy.” In any event, there is no indication that Loza may have
intended to ask for an attorney immediately and stop speaking with the
informant if not for the informant’s comments, regardless of the
informant’s stated view on attorneys. More germanely, the comments
were not of a type that would compel Loza to suddenly tell the
informant that he was involved in the shootings. The comments did




                                   34
not overcome Loza’s “ ‘ “ ‘rational intellect and free will.’ ” ’ ” (People v.
McWhorter (2009)
47 Cal.4th 318, 346
.)
      Accordingly, Loza fails to demonstrate that his subsequent
statements to the informant were involuntary or that his due process
rights were otherwise violated.
VI. Cumulative Error Claims
      Finally, De La Rocha and Loza argue that the asserted combined
errors deprived them of a fair trial. Because we have rejected
appellants’ contentions regarding their various claims of error, we
likewise reject their cumulative error argument. (People v. Homick,
supra,
55 Cal.4th at p. 869
.)
                              DISPOSITION
      The judgments are affirmed.
      NOT TO BE PUBLISHED.



                                              LUI, P. J.
We concur:



      ASHMANN-GERST, J.



      CHAVEZ, J.




                                      35