Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. KA081382, Robert M. Martinez, Judge. .
Seymour I. Amster, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Marcos Salcido, appeals the judgment entered following his conviction, by jury trial, for first degree murder (2 counts), with a multiple-murder special circumstance finding, and gang and firearm enhancements (Pen. Code, §§ 187, 190.2, subd. (a)(3), 186.22, subd. (b), 12022.53). He was sentenced to state prison for two terms of life without possibility of parole, plus a term of 50 years to life.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1. Prosecution evidence.
a. The shootings.
Jose Alberto was a student at North Park High School in Baldwin Park. He lived with his parents and his 14-year-old brother Pedro. Jose Alberto also belonged to a tagging crew, a group of friends who painted graffiti together. He claimed his tagging crew was not associated with Northside Bolen, a street gang in Baldwin Park, but he testified he regularly socialized with close friends who were members of Northside Bolen.
On the night of November 13, 2007, Jose Alberto was in Central Park with some Northside Bolen friends when a shooting took place. He testified he had nothing to do with the shooting; he just heard gunshots and started running.
All further calendar references are to the year 2007 unless otherwise specified.
At school the following day, Jose Alberto and defendant Marcos Salcido “mad-dogged” each other as they passed in the hall, and they made a date to fight after school. Salcido belonged to the KHA gang, which stood for “Kings Have Arrived.” After school, Jose Alberto and Salcido met at a vacant lot so they could fight. They each brought a couple of friends with them. However, a campus police officer intervened and the fight was called off.
About 8:30 p.m. that night, Jose Alberto was at home. His parents were in the living room watching television. His younger brother, Pedro, had been outside saying goodbye to his girlfriend, but then he came back into the house. A little later, Jose Alberto heard gunshots. At first he didn’t do anything, but then he heard his mother scream so he ran outside. Pedro was standing by the front gate, bleeding from two gunshot wounds to the head.
Jose Alberto’s mother, Maria, testified she and her husband went outside when they heard the gunshots. Maria saw Pedro standing in the front yard. She also saw three young men near Pedro. Maria testified her husband, Jose Luis, ran after the men trying to apprehend them.
At the time of the shooting, Joaquin Zepeda was outside, leaning on his car which was parked just up the street from Jose Alberto’s house. When he heard the gunshots, Zepeda felt a hot sensation on his neck like the burn from a passing bullet. He saw an older man running up the street after someone and yelling “grab him.” Zepeda testified he heard, but did not see, at least two other people running up the street at this time. Zepeda saw the older man fall to the ground.
Baldwin Park Police Officer Luis Valdivia responded to a radio call about shots fired. He was flagged down by a man and told someone had been shot. Valdivia found Jose Luis lying on the ground, bleeding from the chest. The wound was fatal.
Other officers found Pedro lying on the ground in front of his house. He had been shot six times and he was pronounced dead by responding paramedics. A single.40-caliber expended shell casing and seven 9-millimeter expended shell casings were found near Pedro’s body. Three more 9-millimeter expended shell casings were found up the street, closer to Jose Luis’s body.
The autopsy showed Jose Luis had been shot once in the chest. A deformed, medium-caliber bullet was still in his body. The bullet’s deformity was consistent with it having impacted a hard surface before striking Jose Luis’s body.
The police never found any of the guns used in the shootings.
b. Gang evidence.
Detective Francisco Real testified as a gang expert. KHA was a gang “recognized” by the Mexican Mafia prison gang, which means KHA paid the Mexican Mafia “taxes.” They did this either by sharing profits from drug trafficking or other criminal activity, or by “doing work” for them, i.e., committing crimes. The three major gangs in Baldwin Park are Northside Bolen, Eastside Bolen, and KHA. Eastside Bolen and KHA get along with other, but neither gang gets along with Northside Bolen. To “put in work” is to engage in criminal activity for the gang’s benefit. This can range from such minor crimes as vandalism to crimes more highly regarded by the gang, such as drive-by shootings. Real testified Nestor Islas and defendant Salcido were KHA members, and that Juan Rodriguez was a member of Eastside Bolen.
Given a hypothetical based on the trial evidence, Real opined the shootings had been committed for the benefit of a criminal street gang because there were three gang members involved, the gunmen believed they were shooting at a rival gang member, and the shooting occurred in disputed gang territory. Real testified such drive-by shootings made it easier for gang members to commit other crimes in the neighborhood by intimidating the residents and persuading them not to assist the police.
c. Salcido’s police statement.
Detectives Rodriguez and Real conducted a tape-recorded interview with Salcido on December 1, and the recording was played for the jury. Detective Rodriguez testified Salcido told them that on the day of the shootings he had an argument with Jose Alberto. They agreed to fight each other after school, but the fight didn’t come off. Later that afternoon, Salcido drove around with O.M., Islas and Rodriguez, and talked about putting in work against the Northside Bolen gang. According to the transcript of the interview, Salcido characterized the substance of their conversation as: “[L]et’s... get those fools, like let’s go see where the fools at....”
They drove into Northside Bolen territory and went by Jose Alberto’s house, but “no one was there.” They went by again later and saw either Jose Alberto or his brother with a girl in front of the house. They parked. Rodriguez and Islas, who were both armed, got out and walked toward Jose Alberto’s house, but Salcido stayed in the car. Islas whistled and Pedro came out of the house. Islas asked Pedro if he was from Northside. Then there were gunshots. Salcido got scared, exited the car and ran away. He denied having been armed that night.
Later in the interview, Salcido admitted he had been carrying a gun and that he had fired a single shot at Pedro. Salcido did not say he shot at the ground. Rather, he demonstrated to the detectives how “he raised [the] gun up” and fired in Pedro’s direction from eight to ten feet away. In the courtroom, Detective Rodriguez repeated Salcido’s demonstration: “For the record, the witness has extended both arms straight out in front of him at about chest level as if holding a weapon.” The following colloquy occurred:
“[Detective]: How many times did you shoot?
“Salcido: I only shot once.
“[Detective]: Once. Okay. Thank you.
“Salcido: But I, I don’t know if I got him or not though.”
And then:
“[Detective]: Were you scared?
“Salcido: Hell, yeah.
“[Detective]: Why did you fire?
“Salcido: ’Cause I was scared, like I never done anything like that before.”
Salcido did not say anything about feeling coerced or pressured by Islas into taking part in the drive-by shooting.
2. Defense evidence.
a. Salcido’s testimony.
Salcido testified in his own behalf. He and Islas were members of KHA, and Jose Alberto belonged to Northside Bolen. KHA and Northside Bolen were rivals. Salcido and Jose Alberto argued at school on November 14 and made an arrangement to fight when school was over. That afternoon, as they were starting to face off, a black Nissan pulled up in front of Jose Alberto. Inside the car was “an older guy from Northside.” They had a brief conversation, during which Jose Alberto was pointing at Salcido. Then the Nissan pulled around in front of Salcido. The older guy from Northside threw gang signs at him and lifted up his shirt to display a gun. Salcido was frightened, but he was also mad because this happened in front of his girlfriend.
Later in the day, Salcido was driving around with O.M. and Rodriguez. At one point, Islas called O.M. and they drove to Central Park to pick him up. Islas already knew what had happened between Salcido and Jose Alberto after school. When Islas said he wanted to retaliate against Northside Bolen for shooting at him the night before, Salcido was shocked. He denied being in agreement with the retaliation plan because of his encounter with Jose Alberto earlier that day.
Islas had O.M. drive to an apartment complex. He told Salcido to come with him into one of the apartment units, where Islas’s friend gave them each a gun. Salcido testified he knew he had been given the gun to “[p]ut in work, ” which meant to “[g]o looking for Northsiders.”
They returned to O.M.’s car and drove around Northside Bolen territory. After a while, Islas wanted to keep looking for Northsiders, but everyone else wanted to go home. Islas told O.M. to take him home first. Following Islas’s directions, O.M. ended up driving past Jose Alberto’s house. There was a bald young man out front with a girl. Islas said he wanted to do a drive-by and he told O.M. to make a U-turn.
O.M. drove past the house and parked. Now there was nobody in front of Jose Alberto’s house. Islas and Rodriguez got out, but Salcido did not. Islas told Salcido if he didn’t get out, “You know what’s going to happen.” Salcido conceded he never told the detectives Islas said that to him. Salcido testified he got out and walked with Rodriguez and Islas toward Jose Alberto’s house. Islas whistled to get Jose Alberto’s attention and someone came out of the house. Salcido did not recognize this person, who didn’t appear to be Jose Alberto. Islas approached the person and said, “Where are you from?” At the same time, Islas started pulling something out of his waistband. When Salcido saw this, he fired a single shot toward the ground. Salcido testified he believed this was the only way to make it appear he was participating in the assault, something which was expected of him because he had made KHA look bad at school that afternoon. If he didn’t do what he was told, KHA would have killed him.
Salcido testified: “I shot once because that was the only way, my only opportunity, to get myself out of the situation and... to make it seem that I was participating with [Rodriguez] and [Islas]... because I made K.H.A. look bad.”
But in addition to this story about firing once in order to trick Islas into believing he was fully participating in the attack, Salcido offered two additional explanations for his conduct that night: (1) he wanted to withdraw from the attack plan, and he communicated this intention to his companions by firing once and running away; and (2) he believed that, by firing the first shot, he might be able to scare his companions into breaking off the attack.
Salcido denied having subsequently told Rodriguez he thought he had shot one of the victims.
b. Rodriguez’s testimony.
Codefendant Juan Rodriguez testified he was a student at North Park High School at the time of the shootings. He denied being a gang member, although he had friends in the Eastside Bolen gang and he “claimed” Eastside Bolen. Rodriguez was not friends with Salcido, but was acquainted with him from school and knew he belonged to KHA. Similarly, he wasn’t friends with Islas but knew who he was. Rodriguez was friends with O.M., who was not involved in any gang.
Rodriguez testified there was a big difference between merely “claiming” a gang and being a “jumped in” member.
On the evening of November 14, Rodriguez wanted to smoke marijuana with O.M., but Islas and Salcido wanted O.M. to take them to Northside Bolen territory so they could “put in work.” All four of them were in O.M.’s car and they drove to an apartment complex so Islas could obtain some marijuana. Islas and Salcido got out. When Salcido returned to the car he looked scared. After they started driving again, Islas showed Rodriguez he had some marijuana and a 9-millimeter handgun. Salcido had a.40-caliber handgun and Rodriguez himself was carrying an unloaded.22-caliber handgun. He had been carrying this gun around since having been shot two months earlier. He just felt he needed something to scare people off and, for that purpose, the gun did not have to be loaded.
Rodriguez told O.M. to take him home, but O.M. refused because he wanted to smoke Islas’s marijuana. As they drove around, Islas directed O.M. where to go because Islas wanted to look for Northsiders. When Rodriguez asked why, Islas said he had been shot at by a couple of Northsiders the night before. Islas also said something had happened at school that day between Salcido and Jose Alberto. Salcido was supposed to have fought with Jose Alberto, but he “ranked it, ” which meant “he got scared” and “backed off.” Rodriguez said a gang member usually suffered retribution if he made his gang look bad.
Rodriguez testified it was not until he asked Islas why he wanted to look for Northsiders that he understood “this was between K.H.A. and Northside. This is because Northside made K.H.A. look bad, and K.H.A. felt that they... had to do something about it.”
Rodriguez again told O.M. to take him home, and then Salcido said he had to go home too. O.M. wanted to drop Islas off first because they were already close to where he lived. Then, at a stoplight, Islas told O.M. to make a turn because Jose Alberto lived right there. Rodriguez and Salcido again said they needed to go home, but Islas insisted that O.M. drive past Jose Alberto’s house. This was about an hour after the stop at the apartment complex where Islas and Salcido obtained the guns.
O.M. made the turn and drove past the house. Islas had his gun out. There was a bald young man and a girl coming out of the house. Islas suggested doing a drive-by shooting. Rodriguez and Salcido urged him to forget about it, but Islas directed O.M. to make a U-turn. When they passed the house again there was no one outside. O.M. made another U-turn and parked.
Islas got out first. When he saw that Rodriguez and Salcido were not moving, he started pressuring them: “ ‘You guys have to get off [i.e., get out], fools. What’s up?’ [¶] And I [i.e., Rodriguez] felt the threat already too. And [Islas] looks at [Salcido] and says, ‘We’ve got to get off. If not, you know what’s going to happen. The crew already told you they’re mad at you because you ranked and made us look bad at K.H.A. And if you don’t get off, I am going to tell them. You already know what’s going to happen if you don’t get off.’ So he’s pressuring [Salcido] to get off the car. And he’s pressuring me as well. I... feel the threat this guy has a gun. So I feel we have to get off. So we get off the car.”
Islas wanted Rodriguez to call Jose Alberto out of the house, but Rodriguez refused and walked back toward the car. Then he heard a whistle. He turned around and saw a young man walking out of the house. Islas said in a friendly manner, “Hey, homie. Come here, ” and the man walked toward him. Rodriguez realized the man wasn’t Jose Alberto, so he started walking back toward the house to stop Islas from asking the man to call Jose Alberto out of the house. But before he could get there, Islas started shooting. Rodriguez testified he did not see Salcido fire any shots. However, he acknowledged telling the police Salcido fired one shot and then ran away.
Rodriguez got scared and started running back toward the car. He heard a woman scream. An older man yelled, “That’s my son. Leave him alone, ” and started running after Islas. Rodriguez kept running toward the car. Islas was running behind him and the older man was catching up. Rodriguez saw Islas turn with the gun in his hand and then Rodriguez heard three or four gunshots. He jumped into the car and so did Islas. Salcido had run in another direction.
O.M. sped off. Rodriguez asked Islas, “Hey, did you shoot the dad?”, and Islas replied, “No, fool, I didn’t shoot the dad. I shot the ground because he was getting close to me.” Islas asked Rodriguez if he had used his gun and, because Rodriguez was scared of Islas, he said yes. Later that night, Salcido told Rodriguez he had shot one of the victims.
c. Other testimony.
Salcido’s older sister, Gina, testified Salcido went out on November 14, at 6:00 or 7:00 p.m. He returned home later that night, but around 10:00 p.m. some people in a car came by to pick him up. Salcido looked scared as he left the house.
Detective Rodriguez was asked if Salcido ever said he had been forced to go to Jose Alberto’s house that night, and Rodriguez answered “Absolutely not.” When Rodriguez noted the defendants were armed and asked what Salcido had been scared of, Salcido replied, “Witnesses, stuff like that.” When Rodriguez said, “But you had plenty of opportunity if you didn’t want to do this to get out of the car and leave, ” Salcido replied: “I know I did.” Salcido did express fear of gang retribution for talking to the police.
d. Trial proceeding.
Salcido, Islas and Rodriguez were tried together, but each defendant had a separate jury.
CONTENTIONS
1. The trial court erred by failing to exclude a witness from the courtroom.
2. The trial court gave an improper limiting instruction.
3. The record is incomplete and insufficient for proper appellate review.
4. The trial court erred by excluding evidence of Salcido’s state of mind at the time of the shooting.
5. There was prosecutorial misconduct.
6. The trial court erred by not instructing, sua sponte, on voluntary manslaughter.
7. The trial court gave an erroneous duress instruction.
8. The trial court gave erroneous accomplice instructions.
9. The trial court gave an erroneous instruction regarding Salcido’s right not to testify.
10. The trial court gave an erroneous implied malice instruction.
11. Defense counsel rendered ineffective assistance.
12. There was cumulative error.
DISCUSSION
1. Trial court did not err by failing to exclude witness from the courtroom.
Salcido contends the trial court erred when it failed to exclude Jose Alberto from the courtroom while his mother, Maria, was testifying. This claim is meritless.
Salcido argues Maria’s testimony “was interrupted and resumed on a subsequent day, with sufficient time for [Jose Alberto] to coach her testimony. Her story the second day was different than that of the first and more closely matched the son’s statement of events even though it was impossible that it happen [sic] that way. In addition, her story on the second day did not match with the story that she told to the police. The court should have excluded [Jose Alberto] from the courtroom after testifying.”
But Salcido fails to specify how Maria’s testimony changed or why it was impossible. The failure to properly develop an argument is fatal on appeal. (See Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 [“Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived.”].)
In any case, there does not appear to be even a potentially meritorious claim here. When Maria took the witness stand, the trial court asked if there was any objection to Jose Alberto remaining in the courtroom and no party objected. Moreover, the factual predicate for Salcido’s coaching claim is missing because Maria did not resume her testimony on a subsequent day; the record shows she completed her testimony in a single day.
2. Trial court’s limiting instruction was adequate.
Salcido contends the trial court erred by failing to give an adequate limiting instruction during the testimony of codefendant Rodriguez. He argues the instruction was confusing and, in effect, lowered the prosecution’s burden of proof. This claim is meritless.
a. Factual background.
On direct examination, Rodriguez was asked why he called O.M. that day. He testified: “I called him so me and him could smoke, smoke weed.... And then when I called him, he said he was with friends, you know. And I just insisted, ‘Let’s go blazing [i.e., smoke marijuana].’ [¶] And then he said, ‘Well, I can’t right now. I’m right now hanging around.’ [¶] And I asked him, “Who are you with?’ [¶] And he said, ‘I’m here with [Islas] and [Salcido].’ [¶] And I told him, ‘Let’s just go blazing.’ [¶] And he says, ‘Look, they want to go and put in work. They want me to take them.’ But he said – ”
Salcido’s attorney interrupted to make a hearsay objection, which the trial court overruled. Rodriguez then testified: “So he says, ‘Look, come with me. That way I could go take them and drop them off. And right after, me and you will go blazing. So I’ll just go take them and drop them off.’ ”
Then, after a little more testimony, the trial court gave the jury the following limiting instruction: “Earlier the court overruled an objection of hearsay when this witness testified about a statement that [O.M.] had made. The Court is going to limit the use of that statement to this defendant only as to his state of mind, and the jurors are not to consider that testimony as to defendant[s] Salcido and Islas for any purpose.”
b. Discussion.
Salcido complains that when the trial court gave this limiting instruction it “referenced the prior objection, without stating the content of the objection, or what material he was referencing that he was limiting. Because the jury was filled with lay people, this instruction was essentially meaningless.” We disagree. The limiting instruction came just three reporter’s transcript pages after the hearsay objection, and there were no intervening objections. We think the jury would have understood what testimony the trial court was referencing.
Moreover, even had there been error, it would not have prejudiced Salcido because there was ample evidence from both his police statement and his own testimony that he understood they were going to “put in work” against the Northside Bolen gang.
3. The appellate record is complete.
Salcido contends his convictions must be reversed because the appellate record is not complete. This claim is meritless.
Salcido argues, “During cross-examination of [codefendant Rodriguez] by the People, portions of [his] taped interview were played in order to impeach the witness, but those portions are not indicated by time or by transcript line number. A transcript of the recording was handed out to the jury, but only sections of the recording itself [were] played and no line nor page numbers were indicated for the record in order to preserve the information for appeal.”
“[S]tate law entitles a defendant only to an appellate record ‘adequate to permit [him or her] to argue’ the points raised in the appeal. [Citation.] Federal constitutional requirements are similar. The due process and equal protection clauses of the Fourteenth Amendment require the state to furnish an indigent defendant with a record sufficient to permit adequate and effective appellate review. [Citations.] Similarly, the Eighth Amendment requires reversal only where the record is so deficient as to create a substantial risk the death penalty is being imposed in an arbitrary and capricious manner. [Citation.] The defendant has the burden of showing the record is inadequate to permit meaningful appellate review. [Citation.]” (People v. Rogers (2006) 39 Cal.4th 826, 857-858.)
As the Attorney General points out, several portions of the tape-recorded police interview were played during the prosecutor’s cross-examination of Rodriguez. Each time, the jurors were given a different transcript with which to follow along. The record is complete because the tape itself and the transcripts were admitted into evidence.
4. Trial court did not improperly exclude evidence of Salcido’s state of mind.
Salcido contends the trial court erred during codefendant Rodriguez’s testimony by excluding evidence about Salcido’s state of mind at the time of the shootings. He argues the evidence was admissible under the state-of-mind exception to the hearsay rule (Evid. Code, § 1250), and that its exclusion was prejudicial because there was no other evidence Salcido joined in the shooting because he was afraid of his own gang.
a. Factual background.
While cross-examining codefendant Rodriguez, Salcido’s attorney had him read aloud portions of his police statement. At one point, Rodriguez was explaining that, when he got out of the car with Salcido and Islas at Jose Alberto’s house, he did not think they were actually going to shoot anyone: “They ain’t gonna shoot, you know, but they didn’t shoot. I was wrong. Like, I know... [Salcido is] gonna get down, like, he’s cool and everything.... That’s why I think that he only shot once... and he left. Well, he didn’t want to kill. He didn’t want to kill him. I could tell because we were – when [Salcido]....” (Italics added.) At this point, the prosecutor objected to Rodriguez’s testimony as improper speculation and the trial court sustained the objection.
Shortly thereafter, Rodriguez testified he told the police he had seen Salcido run from the scene. When defense counsel asked whether Salcido would be disciplined if someone from his gang had seen him run away, the trial court sustained the prosecutor’s objection, again on the ground of speculation.
b. Discussion.
“Evidence Code section 1250, subdivision (a) provides that evidence of a statement of a declarant’s then-existing state of mind or emotion is not inadmissible under the hearsay rule when ‘(1) [t]he evidence is offered to prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or (2) [t]he evidence is offered to prove or explain acts or conduct of the declarant.’ [¶] Where that evidence involves the victim’s fear of the defendant, we have initially looked to whether the victim’s state of mind was really in dispute and whether it was relevant to an issue in the case. [Citations.]” (People v. Thompson (1988) 45 Cal.3d 86, 103-104, italics added.)
Here, the disputed evidence was not admissible under this statute because it was not evidence of Salcido’s state of mind. The first sustained objection was to Rodriguez giving his opinion that Salcido did not want to kill Pedro. The second sustained objection was to Rodriguez’s opinion about whether Salcido would be disciplined if anyone from his gang found out he had run away from the shooting.
Moreover, Salcido’s assertion that “[t]he jury did not have any evidence that Salcido acted out of fear of being ‘checked, ’ ” is incorrect. During this same series of questions the following colloquy occurred: “If [Salcido] would not shoot, would he have been checked? [¶] A. Yes, I believe so.” Asked, “What would happen to an individual if he ran from a shooting, especially if it was his gang that was doing the shooting?”, Rodriguez testified: “He could get beat up. He could get killed. He could get – it all depends.” Salcido himself testified he fired his gun “[b]ecause... I had to do what I was told. If I didn’t do what I was told, they would come beat me up or come threaten me and my family.”
Rodriguez testified “checked” meant a gang member was going to be disciplined.
The trial court did not err by sustaining these objections to codefendant Rodriguez’s testimony.
5. No prosecutorial misconduct.
Salcido contends the prosecutor committed misconduct by misstating evidence during the cross-examination of codefendant Rodriguez. This claim is meritless.
a. Factual background.
The following colloquy occurred during codefendant Islas’s examination of codefendant Rodriguez:
“Q. And you claim Eastside Bolen?
“A. Yes.
“Q. And Eastside Bolen’s main enemy is?
“A. They have a lot.
“Q. What’s that?
“A. They have a lot, a lot of enemies.
“Q. The main enemy is Northside, is it not?
“A. They have many enemies, sir.
“Q. But Northside is the main enemy?
“[Counsel for Rodriguez]: Objection. Asked and answered.
“The Court: Overruled.
“The Witness: I wouldn’t say the main enemy. They got other enemies, got Des Madres.
“Q. [Counsel for Islas]: And Des Madres also is their main enemy?
“A. I am not saying it is the main enemy. I’m saying Eastside’s got a lot of enemies.”
During the People’s subsequent examination, the prosecutor asked:
“Q. Now, when [defense counsel for Islas] was asking you if Northside Bolen was one of... your major enemies, you said, ‘We have many enemies’; is that correct?
“A. I said they have many enemies.
“Q. You used the word we?
“A. I don’t
“Q. Do you want to have the record read back?
“A. I don’t recall, sir. I probably did say that.
“Q. Okay. Do you include yourself as being the we meaning Eastside Bolen?
“A. We meaning Eastside, if I said we. But I don’t believe – I don’t know, sir.
“Q. When you used the word we, you mean yourself included in that gang; right?
“A. I don’t know if I said we.”
b. Discussion.
“[C]onduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’ ” (People v. Espinoza (1992) 3 Cal.4th 806, 820.) “When we review a claim of prosecutorial remarks constituting misconduct, we examine whether there is a reasonable likelihood that the jury would have understood the remark to cause the mischief complained of. [Citation.]” (People v. Osband (1996) 13 Cal.4th 622, 689.) A prosecutor’s behavior violates the federal Constitution when it comprises an egregious pattern of conduct denying the defendant a fair trial. (People v. Smithey (1999) 20 Cal.4th 936, 960.)
Salcido argues there was misconduct because “the prosecutor intentionally misstated the evidence insisting that Juan Rodriguez used the word ‘we’ when answering the question about Northside’s enemies, when in fact he never said that.” We see no indication in the record the prosecutor intentionally misstated Rodriguez’s testimony. Although Rodriguez did not use the word “we, ” he did testify he “claimed” Eastside Bolen as his gang. Hence, we agree with the Attorney General there was no misconduct because the nature and context of the prosecutor’s questions strongly suggested the prosecutor honestly believed Rodriguez had used the word “we” rather than “they” when discussing Eastside Bolen. There was ample evidence at trial that Rodriguez strongly identified with Eastside Bolen even if he was not, as the gang expert testified, an official member.
6. Trial court properly declined to instruct on voluntary manslaughter.
Salcido contends the trial court erred by refusing to instruct the jury on heat-of-passion voluntary manslaughter on the ground there was insufficient evidence to support the instruction. This claim is meritless.
a. Legal principles.
A trial court must instruct on a lesser included offense if there is sufficient evidence to support a finding by the jury that the lesser offense was committed rather than the greater. (People v. Breverman (1998) 19 Cal.4th 142, 154-163.) That evidence must be of some weight, however; the existence of “ ‘any evidence, no matter how weak, ’ ” will not justify instructions on lesser offenses. (Id. at p. 162.)
“An intentional, unlawful homicide is ‘upon a sudden quarrel or heat of passion’ (§ 192(a)), and is thus voluntary manslaughter [citation], if the killer’s reason was actually obscured as the result of a strong passion aroused by a ‘provocation’ sufficient to cause an ‘ “ordinary [person] of average disposition... to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.” ’ [Citations.] ‘ “[N]o specific type of provocation [is] required....” ’ [Citation.] Moreover, the passion aroused need not be anger or rage, but can be any ‘ “ ‘[v]iolent, intense, high-wrought or enthusiastic emotion’ ” ’ [citation] other than revenge [citation].” (People v. Breverman, supra, 19 Cal.4th at p. 163, italics added.) “The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection.” (People v. Lee (1999) 20 Cal.4th 47, 59.)
Thus, “[t]he heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively. As we explained long ago... ‘this heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, ’ because ‘no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.’ [Citation.]” (People v. Steele (2002) 27 Cal.4th 1230, 1252-1253.) “[T]he desire for revenge does not qualify as a passion that will reduce a killing to manslaughter.” (People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704; accord People v. Gutierrez (2002) 28 Cal.4th 1083, 1144 [“If anything, defendant appears to have acted out of a passion for revenge, which will not serve to reduce murder to manslaughter.”].)
b. Discussion.
The trial court refused to instruct on heat-of-passion voluntary manslaughter because there was no indication Salcido’s reason had actually been overcome by strong passion; rather, the evidence showed he had been motivated by revenge after having been “disrespected” by a rival gang.
The trial court did not err. There was no evidence Salcido exhibited any anger, fury, or rage at the time of the shooting. Salcido himself did not testify his reason had been overcome by a strong passion at the time of the shooting. To the contrary, Salcido testified he very calculatedly fired a single shot at the ground in order to fool his fellow gang members into thinking he was taking part in the attack. He also testified he shot in order to communicate his intent to withdraw from the attack, and that he believed he could thwart the attack entirely by firing at the ground before Islas could get off a shot. None of these explanations accord with a heat of passion voluntary manslaughter theory.
Salcido argues his confrontation at school with Jose Alberto earlier that day provided a factual basis for a heat of passion theory. But even if that event constituted adequate provocation, there was still an absence of the subjective element. Moreover, we agree with the Attorney General that this confrontation “was not the type of conduct that would cause an ordinary person of average disposition to act rashly or without due deliberation.” (See People v. Manriquez (2005) 37 Cal.4th 547, 586 [calling defendant a “mother fucker” and daring him to use his weapon, if he had one, “plainly were insufficient to cause an average person to become so inflamed as to lose reason and judgment”].) Salcido is not entitled to a different standard of reasonableness just because he belonged to a gang. (Cf. People v. Humphrey (1996) 13 Cal.4th 1073, 1087 [indicating disapproval of a reasonable gang member standard]; see People v. Lucas (1997) 55 Cal.App.4th 721, 740 [receiving hard looks or so-called “mad-dogging” does not constitute reasonable provocation to shoot someone].)
There was no error in refusing to give this instruction.
7. Duress instruction.
Salcido contends the trial court erred by telling the jury duress was not a defense to murder. This claim is meritless.
The trial court gave an instruction defining duress, but then said: “This defense, however, is not available to a perpetrator of a murder or an aider and abettor to the crime of murder.” Salcido argues, “The instruction... was an erroneous statement of the law. This is because duress can act as a defense to reduce the crime of first degree murder to second degree murder.” Salcido is wrong. “ ‘[D]uress is not a defense to any murder’ [citation] and, in particular, does not negate malice. [Citation.] Duress likewise does not categorically negate premeditation and deliberation, although ‘[i]f a person obeys an order to kill without reflection, the jury might find no premeditation and thus convict of second degree murder.’ [Citation.]” (People v. Hinton, supra, 37 Cal.4th at pp. 882-883.)
The trial court explained it was proceeding in this manner because there had been testimony about duress at trial and the court wanted the jury to clearly understand that duress could not constitute a defense to murder. Salcido in effect concedes the propriety of the trial court’s decision when he states duress “was the primary focal point of [his] defense.” A similar approach was used in People v. Hinton (2006) 37 Cal.4th 839, 882: “The trial court instructed the jury in accordance with CALJIC No. 4.40 that a person is not guilty of a crime when he engages in conduct, otherwise criminal, under the reasonable belief that his life would be in immediate danger if he did not engage in the charged conduct. The trial court also used CALJIC No. 4.41, which stated: ‘When a person commits a crime punishable with death, it is not a defense that he committed the act or made the omission under threats or menaces of immediate death or bodily harm.’ Defendant contends that these instructions ‘prohibited the jury from considering that [his] honest belief that Hicks was threatening his life could negate the specific intent requirements and mental state elements of first-degree murder.’ No error appears.” “The instructions... correctly informed the jury that threats and menace do not constitute a defense to murder. Nothing in these instructions barred the jury from considering whether these threats – or any other facts – prevented defendant from premeditating and deliberating....” (Id. at p. 883.)
As the Attorney General explains: “Although the circumstances of duress may be relevant to the requisite mental state for first and second degree murder, this ‘is not due to a special doctrine of duress but to the legal requirements of’ murder.” (See People v. Anderson (2002) 28 Cal.4th 767, 784 [“We agree that a killing under duress, like any killing, may or may not be premeditated, depending on the circumstances. If a person obeys an order to kill without reflection, the jury might find no premeditation and thus convict of second degree murder. As with implied malice murder, this circumstance is not due to a special doctrine of duress but to the legal requirements of first degree murder.”].)
Salcido also complains that when the jury subsequently asked the trial court “to explain or differentiate provocation or duress, ” the trial court “instructed the jury [to] go back over the instructions it had previously read without discussing it with counsel.” (Italics added.) The record shows, however, that Salcido’s attorney was present and discussed this jury request with the trial court.
The trial court’s duress instruction was not erroneous.
8. Accomplice instructions.
The trial court gave the following instruction, derived from CALCRIM No. 301: “[E]xcept for the testimony of Juan Manuel Rodriguez and Marcos Salcido, which requires supporting evidence[, ] the testimony of only one witness can prove any fact.” Salcido asserts, “Although this was a correct statement of the law to the Rodriguez jury, ” it should not have been given to his jury because his “testimony to the jury deciding his case did not require any corroboration.” Salcido argues that, as a result of this instruction, “the jury did not consider [his] testimony.”
We disagree with Salcido’s conclusion. Although the instruction should not have been given, we do not believe there was any resulting error because the jury would not likely have been confused. In any event, it is clear from the record that even if there was error, it was not prejudicial.
a. Legal principles.
Section 1111 defines an accomplice as “one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” An accomplice is one who acts with “ ‘knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.’ ” (People v. Stankewitz (1990) 51 Cal.3d 72, 91.) Whether a person is an accomplice is a question of fact for the jury unless there is no dispute as to either the facts or inferences to be drawn from the facts. (People v. Fauber (1992) 2 Cal.4th 792, 834.) “Defendant must establish the accomplice status of a prosecution witness by a preponderance of the evidence.” (People v. Sully (1991) 53 Cal.3d 1195, 1228.)
“A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense....” (§ 1111.) “To corroborate the testimony of an accomplice, the prosecution must present ‘independent evidence, ’ that is, evidence that ‘tends to connect the defendant with the crime charged’ without aid or assistance from the accomplice’s testimony. [Citation.] Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime. [Citations.] ‘ “[T]he corroborative evidence may be slight and entitled to little consideration when standing alone.” [Citation.]’ [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 562.)
“We must consider whether it is reasonably likely that the trial court’s instructions caused the jury to misapply the law. [Citations.] ‘[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.’ [Citations.]” (People v. Carrington (2009) 47 Cal.4th 145, 192.)
b. Discussion.
In this case, the evidence of the codefendants’ accomplice liability was not without possible dispute. Rodriguez’s story was that he was unwillingly dragged along to the shooting scene when the others refused to take him home. Rodriguez said he did not shoot anyone and his gun was unloaded; rather than walk toward Pedro, he walked in the opposite direction in order to separate himself from the attack. Salcido testified he shot at the ground, not at Pedro, in order to: pretend to play an active role in the attack; communicate his intent to withdraw; and, scare his companions into aborting the attack. Despite the obvious credibility problems with both of defendants’ stories, there was probably an arguable “dispute as to either the facts or inferences to be drawn from the facts, ” which meant the trial court properly determined the accomplice question should be determined by the jury. (See People v. Williams (1997) 16 Cal.4th 635, 679 [trial court may only instruct that witness is accomplice as matter of law if facts establishing witness’ culpability are clear and undisputed].)
Hence, the trial court properly instructed the jury with CALCRIM No. 334 as follows: “Before you may consider the statement or testimony of Juan Manuel Rodriguez and/or Marcos Salcido as evidence against any codefendantregarding the crimes of murder alleged in Counts 1 and 2, you must decide whether Juan Manuel Rodriguez and/or Marcos Salcido were accomplices to those crimes.” The instruction defined “accomplice” and then explained: “If you decide that a witness was not an accomplice then supporting evidence is not required and you should evaluate his or her statements or testimony as you would that of any other witness. [¶] If you decide that a witness was an accomplice then you may not convict the defendant of murder based on his or her statement or testimony alone.”
The trial court then instructed: “You may use the statement or testimony of an accomplice to convict the defendant only if: [¶] 1. The accomplice’s statement or testimony is supported by other evidence that you believe; [¶] 2. That supporting evidence is independent of the accomplice’s statement or testimony; [¶] 3. That supporting evidence tends to connect the defendant to the commission of the crime. [¶]... [¶] Supporting evidence, however, may be slight. It does not need to be enough by itself to prove the defendant is guilty of the charged crime, and it does not need to support every fact mentioned by the accomplice in the statement or about which the accomplice testified. [¶] On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime. [¶] The evidence needed to support the statement or testimony of one accomplice cannot be provided by the statement or testimony of another accomplice.” “Any statement or testimony of an accomplice that tends to incriminate the defendant should be viewed with caution. You may not, however, arbitrarily disregard it. You should give that statement or testimony the weight you think it deserves after examining it with care and caution and in light of all the other evidence.”
However, the trial court’s earlier use of CALCRIM No. 301, as part of its introductory instructions, conflicted with the CALCRIM No. 334 instructions because it told the jury, in effect, that Salcido and Rodriguez were accomplices as a matter of law.
The Attorney General argues this conflict did not constitute error: “In light of the entire instructional charge, it is not reasonably likely that the jury misapplied CALCRIM No. 301 by requiring supporting evidence before any of appellant’s testimony, including exculpatory, testimony, could be used to prove a fact. Considering CALCRIM No. 301 in conjunction with CALCRIM No. 334, the challenged ‘supporting evidence’ language in CALCRIM No. 301 only applied to the testimony of appellant or codefendant Rodriguez to the extent such testimony was accomplice testimony ‘against any codefendant.’ Indeed, the term ‘supporting evidence’ was only used in CALCRIM Nos. 301 and 334. Thus, the jury would have likely recognized that the challenged portion of CALCRIM No. 301 was limited to testimony from appellant that incriminated a codefendant.” (Italics added.) We find the Attorney General’s argument persuasive.
But even assuming, arguendo, that the jury was confused by the accomplice instructions, we conclude the error was harmless. (See People v. Williams (2010) 49 Cal.4th 405, 456 [“Error in failing to instruct the jury on consideration of accomplice testimony at the guilt phase of a trial constitutes state-law error, and a reviewing court must evaluate whether it is reasonably probable that such error affected the verdict.”]; People v. Miranda (1987) 44 Cal.3d 57, 101, disapproved on another ground in People v. Marshall (1990) 50 Cal.3d 907, 933, fn. 4 [although trial court erred by refusing to give accomplice testimony instruction, error was harmless under the Watson standard].)
People v. Watson (1956) 46 Cal.2d 818, 836.
Salcido was not convicted because the jury discounted his testimony compared to the contrary testimony of another witness. The undisputed evidence showed Salcido had a strong motive for seeking revenge against Jose Alberto, the intended target of the drive-by shooting, and that Salcido talked about “putting in work” against the Northside Bolen gang while he was riding around in O.M.’s car. The undisputed evidence showed Salcido had plenty of opportunity to back out if that’s what he really wanted to do. Salcido never told Detective Rodriguez he was coerced into joining the attack. The only thing Salcido told police he was frightened of was committing a drive-by shooting for the first time and potentially being seen by witnesses. During closing argument, the prosecutor summed up this evidence without ever asking the jury to view Salcido’s testimony with caution because he was an accomplice.
Against the weight of this overwhelming inculpatory evidence, Salcido testified he fired at the ground, not at Pedro, both to trick Islas into believing he was participating in the attack, and to abort the attack and communicate his withdrawal. Not only is there an internal inconsistency in this defense, but it was completely undermined because Salcido confessed to Detective Rodriguez that he shot at Pedro, not at the ground.
In sum, we conclude the jurors would not likely have been confused by the accomplice instructions but, if they were, any error was harmless given the overwhelming evidence of Salcido’s guilt.
9. Instruction on a defendant’s right not to testify.
The trial court instructed the jury:
“A defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. [¶] Do not consider for any reason at all the fact that a defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way.”
Salcido argues that, because he testified, there was no reason to give this instruction and it prejudiced the jury against him: “By giving this instruction the jury concluded that the defendant testified because he felt that the evidence against him was overwhelming. This caused [the] jury to conclude that he felt desperate when he testified and his testimony should be evaluated under that standard.”
Salcido fails to cite any authority or reasoned argument to support his theory the jury would have reached such a conclusion. Moreover, the three juries were instructed simultaneously and they were told some instructions might not apply. We agree with the Attorney General that Salcido’s jury likely realized this instruction related to Islas, the only one of the three codefendants who did not testify, and simply ignored the instruction when considering the question of Salcido’s guilt or innocence.
10. Instruction on implied malice.
Salcido contends the trial court’s murder instructions failed to clearly state “that murder performed under an implied malice theory is second degree murder.” Salcido also contends the second degree murder instruction was erroneous because “general intent is not sufficient to convict a defendant of second degree murder based on implied malice.” These claims are meritless.
The trial court told the jury murder required malice aforethought, which was of two kinds: express malice and implied malice. Express malice was defined as an unlawful intent to kill, while implied malice was defined as the commission of an intentional act dangerous to life with conscious disregard for the risk. The trial court said, “If you decide the defendant has committed murder, you must decide whether it is murder of the first or second degree. A defendant is guilty of first degree murder if the People have proved that he acted willful [sic], deliberately, and with premeditation.” The court explained the concepts of willfulness, premeditation and deliberation, and then said: “All other murders are of the second degree.”
As to Salcido’s first claim, the Attorney General properly points out “the instructions correctly informed the jury that first degree murder required a willful, deliberate, and premeditated killing, whereas all other murders were of the second degree.” As to Salcido’s second claim, the jury was instructed that implied malice required Salcido to have intentionally committed a life-threatening act with deliberate disregard for the consequences. A general intent in this situation would have been merely committing a life-threatening act.
11. Ineffective assistance of counsel.
Salcido contends his convictions must be reversed because he was denied the effective assistance of trial counsel. This claim is meritless.
a. Legal principles.
A claim of ineffective assistance of counsel has two components: “ ‘First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’ [Citation.] To establish ineffectiveness, a ‘defendant must show that counsel’s representation fell below an objective standard of reasonableness. [Citation.] To establish prejudice he ‘must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.]” (Williams v. Taylor (2000) 529 U.S. 362, 390-391 [120 S.Ct. 1495].) “[T]he burden of proof that the defendant must meet in order to establish his entitlement to relief on an ineffective-assistance claim is preponderance of the evidence.” (People v. Ledesma (1987) 43 Cal.3d 171, 218.)
“[I]f the record sheds no light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for an explanation and failed to provide one, or there could be no satisfactory explanation for counsel’s performance. [Citation.]” (People v. Castillo (1997) 16 Cal.4th 1009, 1015.) An appellate court “need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” (Strickland v. Washington (1984) 466 U.S. 668, 697 [104 S.Ct. 2052].)
“Where the record shows that the omission or error resulted from an informed tactical choice within the range of reasonable competence, we have held that the conviction should be affirmed.” (People v. Bunyard (1988) 45 Cal.3d 1189, 1215; see People v. Hillhouse (2002) 27 Cal.4th 469, 502 [“deciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance”]; People v. Mitcham (1992) 1 Cal.4th 1027, 1059 [decision whether to put on witnesses is “matter[] of trial tactics and strategy which a reviewing court generally may not second-guess”].) “It is not sufficient to allege merely that the attorney’s tactics were poor, or that the case might have been handled more effectively. [Citations.] [¶] Rather, the defendant must affirmatively show that the omissions of defense counsel involved a critical issue, and that the omissions cannot be explained on the basis of any knowledgeable choice of tactics.” (People v. Floyd (1970) 1 Cal.3d 694, 709, disapproved on other grounds by People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36.)
b. Failure to object to evidence of autopsy photographs.
Salcido contends defense counsel was ineffective for failing to object to the evidence of the victims’ autopsy photographs which, he asserts, “served only to inflame the passions of the jury by depicting a shocking and gruesome state of the victim’s [sic] bodies after death.” This claim is meritless.
“This court is often asked to rule on the propriety of the admission of allegedly gruesome photographs. [Citations.] At base, the applicable rule is simply one of relevance, and the trial court has broad discretion in determining such relevance. [Citation.] ‘ “[M]urder is seldom pretty, and pictures, testimony and physical evidence in such a case are always unpleasant” ’ [citation], and we rely on our trial courts to ensure that relevant, otherwise admissible evidence is not more prejudicial than probative [citation]. A trial court’s decision to admit photographs under Evidence Code section 352 will be upheld on appeal unless the prejudicial effect of such photographs clearly outweighs their probative value. [Citation.] Finally, prosecutors, it must be remembered, are not obliged to prove their case with evidence solely from live witnesses; the jury is entitled to see details of the victims’ bodies to determine if the evidence supports the prosecution’s theory of the case. [Citation.]” (People v. Gurule (2002) 28 Cal.4th 557, 624.)
Although Salcido’s claim encompasses the photographs of both bodies, he focuses on the autopsy photographs of Pedro’s body, arguing: “It was a gruesome sight to view a dead body, on a cold metal autopsy table, filled with torn wounded flesh.” Salcido relies on People v. Smith (1973) 33 Cal.App.3d 51, disapproved on another ground in People v. Wetmore (1978) 22 Cal.3d 318, 324, fn. 5, where photographs of the victims’ bodies had been taken at the scene of the crime. Smith described the photographs as “gruesome; their impact... heightened by vivid coloration; the two pictures of Mrs. Fitzhugh’s seminude, terribly mutilated, bloody corpse have a sharp emotional effect, exciting a mixture of horror, pity and revulsion.” (People v. Smith at p. 69.)
The photographs here are nothing like that. Neither body is mutilated and the only significant blood consists of small patches of dried blood covering Pedro’s bullet wounds. There is nothing gruesome about either body. In this circumstance, defense counsel could have reasonably concluded it would have been futile to object to the evidence. (See People v. Mendoza (2000) 24 Cal.4th 130, 171 [defense objection to photograph of victim’s body would not have succeeded where Court of Appeal “independently reviewed the photographs, and... conclude[d] that they are not unduly gruesome or inflammatory”].)
c. Salcido’s absence from critical stage of proceedings.
Salcido contends defense counsel unreasonably failed to obtain his waiver to being present at a critical stage of the proceedings. Salcido asserts this issue “was discussed in this brief in sections VII and IX.” But those sections of Salcido’s brief have nothing to do with his absence from any proceeding. We agree with the Attorney General that, in its present posture, this cursory allegation has been forfeited because failure to properly develop an argument is fatal on appeal. (See Jones v. Superior Court, supra, 26 Cal.App.4th at p. 99 [“Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived.”].)
d. Reliance on other defense counsel.
Salcido complains his attorney “had very few questions and instead relied upon the questions and answers asked by codefendant’s counsel in the presentation of information to his jury.... This evidence presented to Appellant’s jury in Appellant’s defense should have primarily been elicited by his trial defense counsel.... By failing to adequately question the witnesses for himself, it gave the impression that he was not vigorously defending his client, and it was in fact the case that he sat back most of the time and let the other attorney’s [sic] steer the ship.” (Italics added.)
This claim has not been adequately grounded in the record. Salcido fails to identify either the witnesses or the evidence he is talking about. “It is not sufficient to allege merely that the attorney’s tactics were poor, or that the case might have been handled more effectively. [Citations.] [¶] Rather, the defendant must affirmatively show that the omissions of defense counsel involved a critical issue, and that the omissions cannot be explained on the basis of any knowledgeable choice of tactics.” (People v. Floyd, supra, 1 Cal.3d at p. 709.) Our review of the trial transcript shows defense counsel actively participated in examining the witnesses. (See People v. Cleveland (2004) 32 Cal.4th 704, 746 [“Although in extreme circumstances cross-examination may be deemed incompetent..., normally the decision to what extent and how to cross-examine witnesses comes within the wide range of tactical decisions competent counsel must make.”].)
e. Failing to have Jose Alberto removed from courtroom.
Salcido contends defense counsel was ineffective for failing to ask the trial court to remove Jose Alberto from the courtroom during his mother’s testimony. As discussed ante, however, Salcido’s suggestion the two could have coordinated her testimony during the evening recess is factually incorrect and, consequently, there could not have been any resulting prejudice.
f. Failing to object to interpreter.
Salcido contends defense counsel should have challenged the competence of the interpreter used during the testimony of Maria. He claims the record is replete with examples of the interpreter’s faulty translations, and he complains that “asking questions of the attorney’s [sic] about what they mean by what they are saying is at the least really awkward and confuses the testimony of that witness.”
But, again, Salcido has failed to cite any portions of the trial record at which these mistranslations and confusing questions occurred. The failure to properly develop an argument is fatal on appeal. (See Jones v. Superior Court, supra, 26 Cal.App.4th at p. 99 [“Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived.”].) We have reviewed Maria’s testimony and noticed only that the interpreter occasionally asked clarifying questions of the examining attorneys.
12. There was no cumulative error.
Salcido contends that, even if harmless individually, the cumulative effect of these claimed trial errors mandates reversal of his convictions. “Because we identified [at most] only one harmless error[, regarding the accomplice instructions, ] the claim of cumulative error is without merit.” (People v. Vieira (2005) 35 Cal.4th 264, 305.)
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J., KITCHING, J.