Filed 4/16/15 P. v. Hill CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A133121
v.
ROSA PUI HILL et al.,                                                (Alameda County
                                                                     Super. Ct. No. C162185A)
         Defendants and Appellants.


                                                I. INTRODUCTION
         The crimes alleged in this matter arose out of a custody dispute between estranged
spouses Rosa Hill and Eric Hill. Appellants Rosa Hill and her mother, Mei Li, appeal
from the judgment following their conviction by a jury of the first-degree murder of
Selma Hill (Eric Hill’s grandmother) and the attempted premeditated murder of Eric Hill.
Mei Li was also convicted of first-degree burglary of Selma Hill’s residence.1
         On appeal, Mei Li raises several claims of instructional error. Rosa Hill argues the
trial court erred in admitting her pretrial statement and failing to answer a question from
the jury during deliberations. She also raises claims of prosecutorial misconduct and
ineffective assistance of counsel. Both appellants argue the evidence was insufficient to
support the attempted murder conviction and cumulative error. Each appellant joins in


1
 A third co-defendant, Ping Li (Rosa Hill’s father and Mei Li’s husband), was also
charged in this matter. His case was severed from the trial of the other two defendants.
In her opening brief, Rosa Hill states that he pled guilty to violations of Penal Code
sections 32 and 459, and was sentenced to four years imprisonment.


                                                             1
the arguments of the other pursuant to California Rules of Court, rule 8.200, subdivision
(a)(5). Finding merit to one of Mei Li’s claims of instructional error, we will reverse her
conviction for the murder of Selma Hill.2 We affirm the judgment in all other respects.
                    II. FACTUAL AND PROCEDURAL BACKGROUND
         On November 17, 2009, the Alameda County District Attorney filed an
information against Ping Li and appellants Rosa Hill and Mei Li.3 Count one charged
Rosa and Mei with the murder of Selma, in violation of Penal Code section 187,
subdivision (a).4 In connection with count one, the information alleged the felony-
murder special circumstance that Rosa committed this offense in the course of a burglary,
within the meaning of section 190.2, subdivision (a)(17),5 and that Rosa and Mei were
armed with firearms within the meaning of section 12022, subdivision (a)(1).
         Count two charged Ping and appellants Rosa and Mei with the premeditated
attempted murder of Eric, in violation of sections 187, subdivision (a), and 664,
subdivision (a). In connection with count two, the information alleged that Rosa
personally used a firearm within the meaning of sections 12022.5, subdivision (a), and

2
  Shortly before oral argument in this matter, Mei Li’s counsel submitted a letter drawing
to the court’s attention two cases filed after briefing was complete, People v. Chiu (2014)
59 Cal.4th 155 and People v. Smith (2014) 60 Cal.4th 603, which address the natural and
probable consequence theory of aiding and abetting. At oral argument, we set a schedule
for supplemental briefing regarding these two cases. Having now reviewed those briefs,
we agree with the parties that, under People v. Chiu, the jury in this case was erroneously
instructed on aider and abettor liability for first degree murder under the natural and
probable consequences doctrine. However, in light of our reversal of Mei Li’s first
degree murder conviction on another ground, as explained herein, we need not address
the parties’ contentions regarding Chiu.
3
 Because several individuals involved in this matter share the same last names of Hill
and Li, in the interests of clarity and readability, we will hereafter refer to them by first
names; no disrespect is intended.
4
    Unless specified all further statutory references are to the Penal Code.
5
  We note that the information alleged the underlying felony of burglary but cited to
section 190.2, subdivision (a)(17)(A), which specifies the underlying felony of robbery.
The parties raise no issue in this regard; thus, we will presume, as they apparently did,
that subdivision (a)(17)(G), specifying burglary, was intended.


                                                2
12022.53, subdivision (b), and that Ping and Mei were armed with firearms within the
meaning of section 12022, subdivision (a)(1).
          Count three charged Ping and Mei with residential burglary of Selma’s home, in
violation of section 459.6 In connection with count three, the information alleged that
Ping and Mei were armed with firearms within the meaning of section 12022, subdivision
(a)(1).
          On March 5, 2010, the trial court granted Rosa’s motion to set aside the special
circumstance allegation.
          On March 7, 2011, the trial court granted Ping’s motion to sever.
          Rosa and Mei were tried together by a jury between March 16 and June 28, 2011.
     A. Prosecution Case
          1. Eric And Rosa
          Eric and Mei both worked at the Alameda County Social Services Office in
Oakland as eligibility technicians. Mei introduced Eric to her daughter, Rosa, in late
2002. Eric and Rosa began seeing each other in early 2003 and married in April 2005.
They lived with Mei and Ping in Antioch for four or five months before purchasing a
condominium in Fremont. They had a child together, a daughter, Elizabeth, who was
born in June 2006.
          Upon Eric’s return to work from paternity leave, supervisors complained about his
job performance. Eric believed his work was adversely impacted by medication he took
to control his mental illnesses, which included severe depression, visual and auditory
hallucinations, and suicidal tendencies. His symptoms became worse when he stopped
taking his medication.
          Eric had a history of mental problems dating back to high school. In 2004, after
Rosa saw Eric put a knife to his wrist, he took time off work and went to a Kaiser
intensive outpatient program (IOP) designed to deal with depression and associated
suicidal thoughts. His treating psychiatrist, Dr. Cohen, advised Rosa to supervise Eric

6
    Rosa was not charged with a separate count of burglary.


                                               3
and to remove all knives and sharp objects from the home. In 2005, Eric had a
breakdown at work and was driven to the emergency room by his supervisor. He was
placed back in the IOP. In 2007, Eric was not in therapy but spoke to Dr. Cohen on the
phone from time to time. By the time of trial in 2011, Eric self-reported that he was not
on any medication and was feeling fine.
       In early 2007, Eric and Rosa were having problems in their marriage; they
separated in March. Eric moved out and went to live with his grandmother, Selma, in
Dublin. Rosa had custody of Elizabeth after the couple separated. Eric initiated legal
proceedings for full legal and physical custody in May 2007 after being informed by
Carolyn Lacativo of Child Protective Services (CPS) that she thought Rosa was a danger
to Elizabeth due to Rosa’s paranoid tendencies and erratic behavior. Rosa accused Eric
of molesting Elizabeth; Eric denied the allegations.
       The Alameda County family court assigned Dr. Phillip Montes, a psychologist, as
the mediator in the case. The court ordered both Rosa and Eric to undergo psychiatric
evaluations by Dr. Randall Kolin. At the next hearing, the court split legal and physical
custody equally between Eric and Rosa. During the year and a half of custody litigation,
Eric complained to Dr. Montes about Rosa, including that she disrupted daycare, did not
put Elizabeth in daycare as instructed, was overfeeding Elizabeth and that she did not
return her on time after Thanksgiving. By August 2008, Eric had physical custody of
Elizabeth 85 percent of the time and 100 percent legal custody.
       In January 2009, Eric and Elizabeth were living with Selma, who was 91 years old
and in declining health. She was approximately five feet tall, “heavy,” and had poor
eyesight. She had difficulty moving around and she sometimes used a walker to maintain
her balance. Selma was romantically involved with Lester Rowe, and would spend
Thursday until Sunday at his condominium in Fremont. Lester was 90 years old and
dying of bladder cancer. Lester regularly called Selma at 4:00 p.m. on the days they were
not together.




                                             4
       2. Events Of January 7, 2009
       On January 7, 2009, Eric and Elizabeth left the house around 7:00 a.m., before
Selma woke up, and Eric went to work after dropping Elizabeth at daycare.
       Shortly after 5:00 p.m., Lester telephoned his son and daughter-in-law, Jeffrey and
Ute Rowe. He explained that he had been trying to reach Selma by telephone for the last
hour, and it was very unusual that she had not answered. Lester was very upset. Jeffrey
and Ute agreed to drive to Selma’s residence to check on her. They arrived around 5:30
p.m. and found nothing unusual. Ute knocked and rang the doorbell several times, while
Jeffrey checked the back yard. Finding nothing, they agreed to wait for Eric to arrive.
       Eric and Elizabeth arrived shortly before 6:00 p.m. Jeffrey and Ute introduced
themselves to Eric and explained why they were there. They all went into the house
through the garage, with Eric carrying Elizabeth in his arms.
       Jeffrey and Ute waited in the family room while Eric carried Elizabeth upstairs.
When Eric went into his grandmother’s room, he saw Mei crouching near the closet. He
felt confused and worried because Mei should not have been there; she did not have a
social relationship with Selma.
       Eric asked Mei what she was doing there. She stood up but did not answer. Eric
put Elizabeth down and asked where his grandmother was. When Mei said Selma “was
out shopping,” Eric knew something was not right. Then he asked Mei how she got into
the house. Mei said she came “through the door in the garage.” Eric “got scared” and
“thought something may have happened to” Selma. He “started running towards the
garage.”
       As Eric hurried toward the stairs, “Rosa ran out of the baby’s room and charged”
toward him. She wore a dark jacket and a black ski mask. He felt a bump on the back of
his head and heard popping noises. He fell down in the hallway and the two women hit
him all over his body. Rosa used a hand-held stun gun to stun Eric repeatedly in the legs
and lower back, while Mei hit Eric with a baton. Eric yelled, “Help, Jeff, help.”
       Downstairs, Jeffrey and Ute Rowe heard two or three popping noises, followed by
Eric screaming, “What are you doing? What are you doing?” Worried that they had


                                            5
heard gunshots, they ran next door to the home of a neighbor, who called 911. Jeffrey,
Ute and the neighbor went back to Selma’s house, where they heard more popping
sounds. The neighbor heard Eric screaming, “Wait. Wait. Wait.”
       Meanwhile, Eric felt blood dripping down his face and he realized he was in a
fight for his life. He testified that in 2009, he weighed 265 pounds and that Rosa and Mei
each weighed around 100 pounds. Eric stood up and pushed Mei away, but Rosa
knocked him down again. He was hit multiple times with stun guns. Eric managed to get
the baton and was hitting someone with it. He kicked Rosa into the baby’s room, but she
came out again and hit him with the stun gun while telling him to shut up and stop
moving. At this point, Eric saw that Rosa was holding a gun to his chest. He stopped
fighting and lay still on the floor. Mei pushed the baton down on Eric’s throat and began
choking him. Both Mei and Rosa insisted that Eric give up custody of Elizabeth. They
demanded, “Are you going to give up Elizabeth? Will you give up Elizabeth? Can Rosa
have Elizabeth?” Eric agreed to give Elizabeth to them because he did not want to die.
       At that point, Eric heard sirens outside. Rosa ran to the window while Mei held
the baton to his throat. Rosa returned to the bedroom doorway, pointing her gun at Eric.
He could hear police officers in the house.
       Deputies of the Alameda County Sheriff’s Office arrived at Selma’s house at
5:53 p.m. They heard screaming and yelling from inside the house and a male voice
saying, “Please don’t kill me. I don’t want to die. Please don’t.”
       The deputies went upstairs with their weapons drawn. They found Eric on his
knees in the hallway. Mei was bleeding from the head and standing near unspent bullets,
an “electronic stun device” and a “collapsible baton.” Eric suddenly darted into a
bedroom, and Deputy Daniel Molleson deployed his Taser to incapacitate him. Deputy
Jared Hattaway ordered Mei to drop to her knees and raise her hands. Deputy Hattaway
heard Eric shouting that Mei and Rosa had a gun and that his two-year-old daughter was
in the house. Hattaway asked Mei where the child was, but she did not respond. When
he asked her again, she pointed to a bathroom. Looking into a mirror on the bathroom
wall, Hattaway saw the reflection of Rosa, “standing very still,” in a nearby bedroom.


                                              6
Hattaway ordered Rosa to come out of the bedroom with her hands raised. She complied.
Hattaway discovered a second electronic stun device in that bedroom. He found
Elizabeth crying in the bathroom.
       Deputies removed Rosa and Mei from the residence and searched them. Rosa was
wearing a long black coat with mud and dirt on it and multiple layers of clothing. A
small unloaded black handgun was found in her jacket pocket. Mei was wearing a heavy
tan coat and black pants. She told an officer she had a stun gun in her pocket, which was
removed. Mei was taken to the hospital and treated for her head wound.
       Deputy Mitchell Mensinger located Rosa’s father, Ping, slouched down in the
driver’s seat of a gray Prius that was parked across the street and several houses down
from Selma’s house. The vehicle was registered to Ping. Inside the Prius, Mensinger
found a pink and black backpack belonging to Mei which contained her business cards,
her driver’s license, a flashlight, a red wig, pepper spray, a headlamp and directions to
Selma’s house.
       Officers also found a black backpack with no identifying information in Selma’s
back yard near the fence. It contained a pocket saw, packaging tape, a master long-cast
fishing reel, a rope, crossbow arrows, a knife, a pry bar and .22-caliber ammunition.
       Criminalists of the Alameda County Sheriff’s Crime Lab processed the crime
scene. Numerous items were retrieved from the upstairs area of the house, including
unfired .22-caliber bullets, a Taser, a knife within a sheath, latex gloves, a duty belt, a
retractable baton and a stun gun.
       Deputies searched the back yard and found no evidence of a struggle. They cut
the padlock on a storage shed. Inside the shed, they found Selma’s body in a garbage
can. The body was wrapped in blue sheets. There were plastic grocery bags on the
body’s head, neck and hands; a white rope was wrapped around the body.
       Selma’s autopsy revealed blunt injuries to the head and neck area, along with
“heat effect” wounds on the right hand, arm and torso that could have been caused by a
Taser. The pathologist testified that the cause of death was asphyxiation due to
strangulation associated with multiple blunt injuries.


                                               7
       3. Police Investigation
       Deputies impounded Rosa’s Acura Integra, which she had parked near Selma’s
home. Deputy Scott Busby searched the vehicle and found a crossbow, a crossbow bolt,
a box of .22-caliber bullets and packaging for a glass cutter. A black duffle bag
contained numerous items including handcuffs/leg irons, pepper spray, a hacksaw, a
camping axe, a pry bar and a rubber mallet. Deputy Busby also found a blue coin purse
containing $2,000 in cash, an envelope holding another $432.06 and a samurai sword
with “a holding strap of the kind commonly used to carry over your shoulder.”
       On January 8, 2009, deputies executed a search warrant on a residence in Antioch.
They found mail addressed to Mei, Ping and Rosa, and recovered a computer and a .38-
caliber revolver registered to Ping. Deputy Andrew Brosi, a computer forensics expert,
analyzed the computer and found, under a user account labeled “Mei Li,” internet
searches for the terms “taser gun, stun guns,” “gun silencer” and “how to break into a
house.”
       Deputies determined that Mei and Ping maintained a second residence. On
January 20, 2009, deputies executed a search warrant on a residence in Brentwood.
Inside, they found indicia that Mei and Rosa resided in the home, including bills and a
pay stub in Mei’s name and job applications in Rosa’s name. In the kitchen, deputies
found printed documents and handwritten notes. One internet printout contained
information on chloroform and “poisons and antidotes.” Other printouts were titled
“Medications That Can Cause Confusion in Elderly Persons” and “Medications That
Should Be Avoided If Possible When Certain Diseases Are Present.” In one notebook,
there were recorded movements of vehicles, including Eric’s, at Selma’s residence, as
well as the time the garage door opened. Rosa later testified that she “was interested in
the company that Eric was keeping.”
       In the dining room of the Brentwood residence, deputies found handwritten notes,
several of which were read for the jury: “Crime equals desire, ability, opportunity. [¶]
Flashlight . . . as a weapon to hit at forehead, wrist, critical PTS that they cannot hit back.
Knuckles can do the job. [¶] Palm to chin, down to up, low to high, go back to neck, that


                                               8
tall person may fall back. [¶] Ask . . . in a strong voice, the other party may feel
compelled to answer. [¶] Pepper spray . . . does not work on everybody. Tear gas, a guy
says give me more.” Another handwritten note contained references to “angel of death
trial,” “toxicology,” “arsenic,” “traceless death” and “poison tablet.”
       In the master bedroom/bathroom, deputies found indicia in Mei’s name. They also
found notes for a “revenge spell” against “Eric Hill, Gregory Hill, Selma,” and a note that
referred to “Eric Hill and Selma Hill” as “troublemakers.”
       Deputy Brosi analyzed the hard drives of several computers seized from the
Brentwood residence. He found internet searches for “traceless suicide,” “poison death
by touch,” “homemade silencer,” “how suicide,” “strychnine” and “cyanide.” There
were also internet searches for “how to murder,” “gun shows,” how “to get away with
murder,” “punishment for murder” and “how to strangle.”
       A Verizon Wireless cell phone analyst examined the cell phone records of Rosa,
Mei and Ping’s cell phones. Rosa’s cell phone made a series of ten calls to Mei’s cell
phone from 11:46 a.m. to 5:15 p.m. on January 7, 2009. Mei’s phone connected through
cell towers in Oakland until 5:05 p.m., at which point the remaining calls (at 5:05 p.m.,
5:11 p.m., 5:12 p.m. and 5:15 p.m.) were processed through towers in Dublin and
Pleasanton.
       A criminalist working for the sheriff’s office and qualified as an expert in DNA
testified that she tested the Taser and the baton found upstairs in Selma’s house. The
contributing DNA sample taken from the Taser barb could not exclude Selma. The baton
sample had a mixture of DNA present that included at least two sources; the majority was
consistent with Eric’s DNA and the minority was consistent with Mei’s DNA. Rosa,
Ping and Selma were all excluded from the baton samples.
       An employee from Taser International testified that in order to activate a Taser,
the individual must pass an online or telephone background check and the name on the
credit card used to pay the activation fee must match the name used for the background
check. Two Tasers were activated in Mei’s name on December 24, 2008. The Taser
employee could not tell whether the background check was conducted online or over the


                                              9
telephone. Mei’s supervisor testified that Christmas Eve was a scheduled work day for
Mei. Rosa testified that she activated the Tasers in Mei’s name because she purchased
the Tasers for Mei. An employee from the Antioch Armory testified that two Tasers and
pepper spray were sold to an older Asian couple on December 24, 2008.
       Robert Spellacy, who sold guns at a Reno, Nevada, gun show in October 2008,
testified that he sold a .32-caliber gun to Rosa and Mei in a private sale for $200 in cash.
A .32-caliber revolver was recovered from the trunk of the Acura.
B. Defense Case
       Rosa testified that she was born in Hong Kong and lived there until the age of 11,
when her family immigrated to the United States. She grew up in San Leandro and
graduated from U.C. Davis with a degree in applied mathematics. She had no prior
criminal record.
       1. Rosa And Eric
       She met Eric in October 2002. During a trip to Yellowstone in May 2003, he
exhibited aggressive behavior and had panic attacks. She tried to break off the
relationship several times, but he would cry and say he could not live without her.
During one of these events in June 2004, Eric put a knife to his wrist. She told him he
had to get help, and she took him to see Dr. Peter Cohen, a psychiatrist at Kaiser.
       Dr. Cohen testified that he first saw Eric in June 2004. Eric had been cutting
himself for three weeks prior to the appointment, and had previously tried to eat or drink
himself to death. He complained of depression and suicidal feelings. Dr. Cohen
recommended inpatient treatment, but he agreed to an intensive outpatient program and
prescribed Prozac after Rosa agreed to monitor Eric and to remove sharp objects from the
house. Eric saw Dr. Cohen in February 2005; he reported that he had been doing fine
until he got the flu and stopped taking Prozac, at which time his symptoms got worse and
he experienced visual and auditory hallucinations.
       Rosa and Eric were married in April 2005. During their honeymoon, Eric stopped
taking his medication so he could drink alcohol. He became angry and had outbursts.
That summer, Eric’s supervisor took him to the emergency room because of a mental


                                             10
breakdown. Eric was hospitalized briefly. Dr. Cohen noted that he was off Prozac and
his hallucinations returned, although Dr. Cohen did not consider him suicidal. Eric
returned to the IOP.
       The couple’s daughter Elizabeth was born in June 2006. Later that year, Eric
stopped taking his medication because he did not want to fall asleep at work. His
supervisor wanted to terminate him, so Mei suggested he contact his union representative.
In early 2007, he met with union shop steward Ruth Levin, who helped him avoid losing
his job.
       During this time period, Rosa began to notice that when she shared a meal with
Eric, she would become extremely drowsy and pass out. She had no symptoms when she
prepared the meal herself, and feared that Eric was putting medication in her food. In
March 2007, Eric told her that he heard voices telling him to push children into traffic.
Rosa was very worried and told Eric to talk to Dr. Cohen. On March 13, Eric admitted to
Dr. Cohen that he was hearing voices that told him to hurt people. Eric was diagnosed
with major depression recurrent with psychotic features.
       Several incidents in early 2007 led Rosa to believe that Eric was molesting
Elizabeth. Rosa awoke one night and saw Eric with his hand down Elizabeth’s diaper.
Another time, Rosa saw a cut on the baby’s chest. Eric said he had been changing her.
When Rosa tried to talk to him, he walked away. The next day, they took Elizabeth to
Rosa’s parents’ house. When Mei gave the baby a bath, she noticed that her vaginal
opening was unusually large and there was discharge. There were times when Eric was
holding Elizabeth on his lap and he had an erection.
       Rosa saw her primary care physician, Dr. Quin Huffman, in March 2007. She told
Dr. Huffman that she suspected Eric of putting medication in her food. A urine
toxicology screen was negative for codeine. She also told the doctor she suspected Eric
of sexually abusing Elizabeth. Dr. Huffman told Rosa that she was required by law to
report the matter to CPS. Dr. Huffman also contacted Kaiser Social Services, advised
Rosa to take Elizabeth to her pediatrician and referred Rosa to a Kaiser crisis counselor.



                                            11
       The crisis counselor advised Rosa to contact Eric’s psychiatrist and make an
urgent appointment with her pediatrician. She also reported the matter to CPS. The
individual she spoke with at CPS was Ruth Levin.
       Levin did not immediately recognize Eric as the person she had assisted as a shop
steward, but she did realize it at some point. Levin screened the call and classified the
case as emotional abuse rather than sexual abuse because the report did not come from
the child or a witness to sexual abuse. She assigned the case to Carolyn Lacativo and
Levin’s involvement in the case ended.
       Rosa moved with Elizabeth to her parents’ home in Antioch. Rosa reported the
abuse to the Fremont police department, which recommended that she take Elizabeth to
Children’s Hospital for an exam. Dr. Rachael Gilgoff, a child abuse pediatrician,
examined Elizabeth on March 29, 2007. The exam was normal, but Dr. Gilgoff testified
that this did not rule out sexual abuse.
       The Fremont police investigated but concluded there was not enough evidence to
pursue the case.
       Lacativo from CPS testified that she was concerned about Elizabeth when she
heard the allegation that Eric had experienced recent hallucinations telling him to push
children into the street. She interviewed Rosa and was told by the Fremont police that
there was no evidence to prove that Eric had molested Elizabeth. Lacativo also testified
that Rosa was not cooperative with her investigation. It was difficult to get Rosa to meet
with her. She learned that Rosa was living with her parents, but Rosa and Mei refused a
home visit. Finally, Lacativo met with Rosa, Mei and Elizabeth at the social services
office in Hayward.
       Rosa testified that she thought CPS was biased against her because Levin had
helped Eric with his demotion at work. Rosa said she had trouble contacting Lacativo,
not the other way around, and that Lacativo was very upset that Rosa wanted to meet her
at her office rather than at her parents’ home.
       When Eric and Rosa separated in March 2007, Rosa retained custody of Elizabeth.
Eric testified that he began legal proceedings to obtain custody after Lacativo called him


                                             12
and told him she considered Rosa a danger to Elizabeth because of her paranoid
tendencies and erratic behavior. Lacativo denied she said that to Eric. Lacativo
admitted, however, that she and Rosa had a hostile relationship and that Rosa had filed a
formal complaint against her.
        In the custody matter, at some time prior to June 21, 2007, the court issued a
restraining order that gave Rosa sole legal and physical custody and ordered that Eric
have no contact with Elizabeth. On July 31, 2007, Eric was granted temporary sole legal
and physical custody for one week. On August 7, the court ordered joint legal and
physical custody, awarding 50 percent to each parent. On February 13, 2008, the court
increased Eric’s custodial time and decreased Rosa’s. Minor changes to custodial time
were made in May and August 2008; the court gave Eric sole legal custody in August
2008. The matter was set for trial in November 2008. Trial was then reset for February
2009.
        The court generally followed the recommendations of its mediator, Dr. Phillip
Montes. In turn, Dr. Montes relied on data provided by Lacativo. As the case
progressed, Dr. Montes recommended that Eric have greater physical custody because he
was convinced that Rosa had mental health problems. Dr. Montes concluded from the
Fremont police report that Eric did not molest Elizabeth.
        Rosa tried unsuccessfully to convince Dr. Montes that she did not have a mental
illness. Randall Kolin, Ph.D., conducted psychological evaluations of both Rosa and Eric
in August 2007 at the request of the court. Dr. Kolin found that Rosa was overwhelmed
with stress and anxiety but there was no indication of paranoia. Dr. Kolin found that Eric
had a severe impairment in his reality testing; he advised the court that Eric might be
experiencing some psychotic symptoms.
        In an August 31, 2007 report, Lacativo stated that she considered Elizabeth to be
safe with Eric, but she remained concerned about Rosa’s mental status. Lacativo
concluded that Rosa was making false allegations against Eric to alienate Elizabeth from
him.



                                             13
         Between June 2007 and April 2008, Rosa saw Dr. Carrie Kelley Skarda, a
psychologist at Kaiser in Antioch.7 Dr. Skarda thought Rosa was stressed but had good
judgment and insight. Upon learning that Dr. Montes thought Rosa was delusional, Dr.
Skarda sent him a letter stating that Rosa was not suffering from a delusional disorder.
On her own initiative, Rosa underwent a psychological evaluation at Portia Bell Hume
Behavior Health Center in April 2008. The evaluators concluded that Rosa had an
adjustment disorder, and they ruled out any delusional disorder or paranoia.
         Rosa thought that by seeing Dr. Skarda and undergoing the evaluation at the Portia
Bell Hume Center, she was in full compliance with the court’s wishes. Rosa felt that,
instead of protecting Elizabeth, the court process was hurting her and it was taking a toll
on Rosa as well. When Elizabeth would cry out, “No, Daddy, no,” in the middle of the
night, Rosa thought Elizabeth was still being abused. Yet, the mediator continued to
reduce her amount of physical custody of Elizabeth. Dr. Montes had concerns about
Rosa spending three hours a day at the daycare center; he believed this interfered with
what the court had designed as a safe place for Elizabeth. According to Dr. Montes,
because of Eric’s susceptibility to depression, it was crucial that the stability and support
provided by the daycare center be maintained. Dr. Montes asked the court to ban Rosa
from the daycare center and that she be arrested if she appeared there.
         After Rosa was prohibited from seeing Elizabeth at the daycare center, she missed
her terribly. Elizabeth seemed scared and reluctant to leave Rosa at the end of her visits.
Rosa started to panic and worried that Eric might have a psychotic breakdown and hurt
Elizabeth.
         On the weekend preceding January 7, 2009, Mei told Rosa that Elizabeth pointed
to the area between her legs and said “owie” and that “Daddy did it.” Elizabeth told Rosa
she did not want to go see her Daddy. When Rosa returned Elizabeth to Eric after that
weekend, Elizabeth was shaking badly and whispered in Rosa’s ear, “Help me, Mommy.”
Rosa was panicking over what would happen to Elizabeth while in Eric’s care.

7
    Rosa discontinued seeing Dr. Skarda when the doctor moved away from California.


                                             14
       2. Events Of January 7, 2009
       Early on the morning of January 7, 2009, Rosa awoke from a nightmare in which
Elizabeth was screaming, “no, Daddy, no.” She felt compelled to go and check on her
safety. She left the house, taking with her a gun, a stun gun, and a Taser in case Eric
became violent. She drove to Selma’s house in Dublin, parked around the corner, and
climbed onto a second-story balcony. She testified that when she looked in the window,
she saw both Eric and Elizabeth lying naked on a futon. Eric was fondling her and had
an erection.
       Rosa was not sure what to do. She climbed down from the balcony and rang the
doorbell but there was no answer. She did not call the police because she could not prove
what she saw. She testified that she was “just so emotionally overwhelmed that I
couldn’t leave Elizabeth with Eric anymore.” She saw Eric leave for work.
       Rosa went into the back yard and heard Selma open the door on the side of the
garage. Rosa thought Selma was unaware of what Eric was doing and that, if she knew,
she would help protect Elizabeth. Rosa talked to Selma, and the two women went into
the garage through the side door. Rosa told Selma about the molestation, hoping that
Selma would withdraw her financial support from Eric. Selma responded that Eric was
Elizabeth’s father and that he could do whatever he wanted. Rosa was shocked, upset
and angry.
       Selma grabbed what looked like a knife or a box cutter and appeared to swing it at
Rosa, pointing it toward her face. Rosa grabbed a broom and hit Selma several times
with it. She testified that, “I got really angry. I lost it.” Rosa tased her and shoved her
with the broom. Selma fell back and started gagging. Rosa used a stun gun to see if
Selma would move, but she did not.
       Rosa was in shock. She telephoned her mother but did not reach her until about
3:00 p.m. Rosa also tried to call her pastor but got only his voicemail. Rosa wrapped
Selma’s body in sheets and then moved it by herself to the shed in the backyard by using
boards to place the body onto a dolly. Rosa put the body into the garbage in the shed and
padlocked the door. The key to the padlock was found on Rosa’s utility belt. Rosa


                                             15
decided to wait until Eric got home to see if she could convince him to let Mei take care
of Elizabeth.
       Rosa testified that when Mei arrived at Selma’s house around 5:25 p.m., Rosa met
her at the side entrance, but did not tell her what had happened to Selma. Rosa told her
mother that she needed her to watch Elizabeth while Rosa tried to talk to Eric about
custody. When Eric arrived, Rosa was upstairs. She heard him talking to her mother.
Rosa testified that, when she came out of the bathroom into the hallway, Eric charged
her. She was scared and tased him, but it had no effect. He grabbed Rosa and started
banging her head into the floor. Mei tried to pull him off of Rosa, and Rosa was able to
reach the stun gun and stun him. Eric grabbed the baton and hit Mei in the head with it.
Rosa testified that at some point Eric had a gun.
       At that point, Elizabeth ran into the hallway, and Rosa picked her up, moved her to
the far corner of the bathroom, and closed the door. As the struggle continued, Rosa tried
to talk to Eric about having Elizabeth stay with her mother, but she was distracted by the
sound of sirens.
       Rosa testified that she did not go to the house with the intention of killing Selma
or Eric. She gave a statement to the police that night because the officers told her that if
she did not talk to them, she would never see Elizabeth again. Rosa told the police that
Mei had tased Eric. She admitted at trial that not everything she told the police was true.
       On June 28, 2011, the jury convicted both Rosa and Mei of one count of first
degree murder and one count of premeditated attempted murder. The jury also convicted
Mei of one count of first degree burglary. The jury found the firearm enhancement
allegations were true as to Rosa but not true as to Mei.
       On August 29, 2011, the trial court sentenced Rosa to consecutive prison terms of
25 years to life plus one year on count one and life with the possibility of parole plus 10
years on count two. The court sentenced Mei to consecutive terms of 25 years to life on
count one and life with the possibility of parole on count two, and stayed a four-year
sentence on count three. Appellants filed timely notices of appeal.



                                             16
                                     III.   DISCUSSION
   A. Whether The Prosecutor Gave Adequate Notice Of A Felony Murder Theory
       Mei contends that neither she nor Rosa was given constitutionally adequate notice
that the prosecutor would pursue a felony-murder theory.
       1. Background
       In the amended complaint filed on August 17, 2009, the Alameda County District
Attorney charged Rosa and Mei with murder with malice aforethought in violation of
section 187, subdivision (a), and alleged the special circumstance that they killed the
victim in the course of a burglary within the meaning of section 190.2, subdivision
(a)(17). At the conclusion of the preliminary hearing and a lengthy discussion with
counsel, the magistrate declined to hold either Rosa or Mei to answer on the special
circumstance allegation. The court stated, “I do believe there’s probable cause to believe
that [Rosa is] guilty of a burglary . . . . [¶] And I think I’ve made clear why I think that
alone does not establish the specials, but I’m not saying that there isn’t probable cause on
that point.”
       The prosecutor subsequently filed an information that again alleged a felony-
murder special circumstance, that Rosa had killed the victim in the course of a burglary
within the meaning of section 190.2, subdivision (a)(17). On March 5, 2010, the court
granted Rosa’s section 995 motion to set aside the special circumstance allegation.
       At the end of trial, the prosecutor requested instructions on the first degree felony-
murder theory of murder, based on an unlawful killing that occurred during the
commission or attempted commission of the crime of burglary and/or kidnapping.
Rosa’s counsel objected to the giving of any instructions on felony murder or kidnapping,
on the grounds “there was no notice in the accusatory pleadings that the DA was going to
rely on a felony murder rule,” and the magistrate had found no evidence of kidnapping at
the preliminary hearing.
       The prosecutor acknowledged that the magistrate had found insufficient evidence
to hold Rosa and Mei to answer on special circumstance allegations at the preliminary
hearing, but argued that this ruling had no bearing on theories of murder for submission


                                             17
to the jury. The trial court agreed with the prosecutor: “What we are talking about is
theories of liability. And the fact that there was insufficient evidence presented at a
preliminary hearing to establish any basis for a special circumstance count of kidnapping
is a far different thing from what we are dealing with here.” The court found there was
“ample evidence of the underlying felonies [i.e., kidnapping and/or child abduction] that
would constitute the burglary allegation for felony murder.”
       The trial court instructed the jury pursuant to CALJIC Nos. 8.21, 8.26 and 8.27 on
first degree felony murder as a theory of murder, i.e., an unlawful killing committed in
the perpetration of, or attempt to perpetrate, certain enumerated felonies including, as
alleged here, burglary and kidnapping. The court’s burglary instruction pursuant to
CALJIC No. 14.50 specified kidnapping and/or child abduction as the underlying
felonies: “Every person who enters any building with the specific intent to commit
kidnapping and/or child abduction, a felony[,] is guilty of the crime of burglary in
violation of Penal Code section 459.” The court also instructed on the substantive
offenses of kidnapping and child abduction pursuant to CALJIC Nos. 9.50, 9.57 and 9.71.
       2. Legal Principles
       Our Supreme Court has explained that, although there are different theories of
murder with different elements, there is only one statutory offense of murder. (People v.
Nakahara (2003) 30 Cal.4th 705, 712.) “ ‘[I]f the charging document charges the offense
in the language of the statute defining murder (§ 187), the offense charged includes
murder in the first degree and murder in the second degree.’ ” (People v. Taylor (2010)
48 Cal.4th 574, 625.) Similarly, “[f]elony murder and premeditated murder are not
distinct crimes, and need not be separately pleaded.” (People v. Nakahara, supra, 30
Cal.4th at p. 712.) Thus, a pleading charging murder under Penal Code section 187,
subdivision (a), “provides adequate notice that the defendant might be convicted of first
degree murder on a felony-murder theory.” (People v. Abel (2012) 53 Cal.4th 891, 937;
see also People v. Kipp (2001) 26 Cal.4th 1100, 1131; People v. Gallego (1990) 52
Cal.3d 115, 188.)



                                             18
       3. Analysis
       Appellants contend they did not receive adequate notice of a felony-murder theory
because it was not specifically pleaded and the felony-murder special circumstance
allegation was stricken before trial. Mei contends that she and Rosa “were led to believe
that the prosecution would not be proceeding under a felony murder theory,” and that the
“lack of notice deprived [her] of . . . a reasonable opportunity to defend such a theory.”
       As an initial matter, the claim fails because the issue was not preserved for appeal.
Mei neither requested a continuance to address the claimed lack of sufficient notice of the
felony-murder theory nor moved to reopen the taking of evidence so as to present a
defense against the felony-murder theory. (See People v. Gurule (2002) 28 Cal.4th 557,
602, 603; People v. Kipp, supra, 26 Cal.4th at pp. 1131-1132; People v. Memro (1995) 11
Cal.4th 786, 869, overruled on another ground in People v. Gaines (2009) 46 Cal.4th 172,
181, fn. 2.)
       The contention also fails on the merits. The information charged murder pursuant
to Penal Code section 187, subdivision (a). “A pleading referring only to Penal Code
section 187, subdivision (a) provides adequate notice that the defendant might be
convicted of first degree murder on a felony-murder theory.” (People v. Abel, supra, 53
Cal.4th at p. 937, citing People v. Kipp, supra, 26 Cal.4th at p. 1131.) The information
also charged Mei with residential burglary, providing further notice of a potential felony-
murder theory. Moreover, the magistrate’s refusal to hold appellants on a felony-murder
special circumstance was based on the evidence presented at the preliminary hearing and
the magistrate’s finding of probable cause that murder, not kidnapping, was the felony
appellants intended upon entry into Selma’s house. By contrast, the trial court heard
evidence in the case “for close to three months,” including evidence that appellants
“pondered the issue as to custody and how to regain control of the baby,” before deciding
to instruct on the felony-murder theory of murder. The dismissal of the special
circumstance allegation did not deprive appellants of notice of, or bar the prosecution
from pursuing, a felony-murder theory of murder.



                                             19
       Mei’s reliance on Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234 (Sheppard) is
misplaced. First, federal cases are not binding on this court. (People v. Williams (1997)
16 Cal.4th 153, 190 [decisions of lower federal courts interpreting federal law are not
binding on state courts]; People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3 [decisions of
lower federal courts are not binding, even on federal questions].) Moreover, and as we
have previously determined (see People v. Crawford (1990) 224 Cal.App.3d 1, 7-9), that
case is readily distinguishable on its highly unusual facts.
       In Sheppard, the defendant was charged with murder, and the trial proceeded on a
theory that the killing was premeditated and deliberate. No felony-murder theory or
robbery charges, upon which a felony-murder theory could be based, arose, either
“directly or indirectly,” during pretrial or trial proceedings. After both sides had rested
and jury instructions had been settled, the prosecutor raised for the first time the theory of
felony murder with a predicate offense of robbery, and requested and obtained an
instruction applicable to this new theory. (Sheppard, supra, 909 F.2d at p. 1235.) The
prosecutor argued that theory and the defendant was convicted of first degree murder.
(Id. at pp. 1235-1236.) During the course of the defendant’s federal habeas petition, the
state defended its practice of murder pleading, but conceded that “ ‘a pattern of
government conduct affirmatively misled the defendant, denying him an effective
opportunity to prepare a defense’ ” against the felony-murder charge. (Id. at p. 1236,
italics omitted.) The state in fact admitted that the “ ‘ “defendant was ambushed.” ’ ”
(Ibid.) The Ninth Circuit concluded that the defendant’s Sixth Amendment right to
notice of the charges against him had been violated, and granted the habeas petition. (Id.
at pp. 1237-1238.)
       Unlike Sheppard, here the prosecutor repeatedly attempted to charge a felony-
murder special circumstance and charged a separate felony, burglary, as count three in
the information. The prosecutor persistently argued, and the record is replete with
references to, the theory that appellants intended to take the child, that is, kidnapping
and/or child abduction as the target offenses of burglary. Under these circumstances,



                                             20
appellants could not have been misled and suffered no violation of their right to notice of
the charges.
     B. Whether The Trial Court Erred By Instructing The Jury That Felony Murder
        Could Be Based On Uncharged Felonies
         Mei contends the trial court erred by instructing the jury that felony murder could
be based on the uncharged felonies of kidnapping or child abduction. Noting that the
only felony (other than murder and attempted murder) charged in the information or
amended information was burglary, Mei argues, “to the extent the jury relied on the
felony murder doctrine to convict for first degree murder, the jury could only convict the
defendants on a burglary theory of felony murder.”
         The contention has no merit. There is no requirement that an information must
charge the underlying offense for a felony-murder theory. As our Supreme Court has
stated, “it has long been the law in this state that an accusatory pleading charging murder
need not specify degree or the manner in which the murder was committed. [Citations.]
Thus, even where the People intend to rely on a felony-murder theory, the underlying
felony need not be pleaded in the information.” (People v. Thomas (1987) 43 Cal.3d 818,
829, fn. 5.)
         People v. Tully (2012) 54 Cal.4th 952, 1024 (Tully), upon which Mei relies, is not
to the contrary. Mei contends that, in Tully, “the California Supreme Court suggested
that Apprendi’s8 requirement that any fact that increases the maximum penalty for a
crime, other than a prior conviction, be formally charged, submitted to the fact finder,
treated as a criminal element, and proved beyond a reasonable doubt might require that
the underlying felony for felony murder be actually charged in the information.” We find
no such suggestion by the court in Tully; rather this was one of the defendant’s
contentions. In rejecting the argument that Apprendi required the jury to unanimously
agree on the theory of murder and which of two possible target offenses (theft or rape)
supported the burglary-murder theory of first degree murder, the court stated: “We have
previously rejected these arguments and do so again. [¶] ‘[A]though the two forms of
8
    Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).


                                              21
murder have different elements, only a single statutory offense of murder exists. Felony
murder and premeditated murder are not distinct crimes, and need not be separately
pleaded. [Citations.] As for defendant’s claim that a unanimity instruction should have
been given, our cases have repeatedly rejected this contention, holding that the jurors
need not unanimously agree on a theory of first degree murder as either felony murder or
murder with premeditation and deliberation. [Citations.] [¶] We are not persuaded
otherwise by Apprendi v. New Jersey [, supra,] 530 U.S. 466. There, the United States
Supreme Court found a constitutional requirement that any fact that increases the
maximum penalty for a crime, other than a prior conviction, must be formally charged,
submitted to the fact finder, treated as a criminal element, and proved beyond a
reasonable doubt. [Citation.] We see nothing in Apprendi that would require a
unanimous jury verdict as to the particular theory justifying a finding of first degree
murder. (See also Ring v. Arizona (2002) 536 U.S. 584, 610 [requiring jury finding
beyond reasonable doubt as to facts essential to punishment].)’ (People v. Nakahara,
supra, 30 Cal.4th at pp. 712-713, original italics; see People v. Taylor, supra, 48 Cal.4th
at p. 626 [rejecting contention that for purposes of felony murder the jury must
unanimously agree on the target offense].)” (Tully, supra, 54 Cal.4th at pp. 1023-1024.)
We discern nothing in Tully that supports Mei’s argument for new charging requirements
for felony murder.
       To the extent Mei argues that the jury was not required to determine beyond a
reasonable doubt that a defendant committed or attempted to commit the uncharged
underlying felonies of kidnapping or child abduction, the contention is belied by the jury
instructions.
       Moreover, as with her prior argument regarding inadequate notice of a felony-
murder theory, to the extent that Mei claims she was surprised by the prosecution’s
felony-murder theory based on kidnapping or child abduction, her failure to move for a
continuance or to reopen the taking of evidence to present a defense against it waives the
claim. (People v. Kipp, supra, 26 Cal.4th at pp. 1131-1132; People v. Memro, supra, 11
Cal.4th at p. 869.)


                                             22
     C. Whether The Trial Court Correctly Instructed On Aider And Abettor Liability For
        Felony Murder
        Mei contends the trial court erred in failing to instruct the jury that she could not
be guilty of felony murder if she did not aid and abet the burglary or kidnapping until
after Selma was already dead.9 Respondent argues that the instructions were in fact
correct; the evidence did not support such an instruction; and Mei waived any such
instruction by failing to request it.
        Here, the trial court instructed the jury on general principles pertaining to felony
murder and aiding and abetting.10 Specifically, the trial court instructed on first degree
felony murder pursuant to CALJIC No. 8.21 as follows: “The unlawful killing of a
human being, whether intentional, unintentional or accident, which occurs during the
commission or attempted commission of the crime of kidnapping and/or burglary is also
murder of the first degree when the perpetrator had the specific intent to commit that
crime. [¶] The specific intent to commit kidnapping and/or burglary and the commission
or attempted commission of that crime must be proved beyond a reasonable doubt.” The
trial court instructed on aider and abettor liability for felony murder pursuant to CALJIC
No. 8.27: “If a human being is killed by any one of several persons engaged in the
commission or attempted commission of the crime of kidnapping and/or burglary, all
persons, who either directly and actively commit the act constituting that crime, or who
with knowledge of the unlawful purpose of the perpetrator of the crime and with the
intent or purpose of committing, encouraging, or facilitating the commission of the
offense, aid, promote, encourage, or instigate by act or advice its commission, are guilty



9
 Regarding the allegations against Mei, the prosecution charged her in count three with
burglary based presumably on her own entry into Selma’s house. On the murder charge,
count one, however, the prosecution proceeded inter alia on the felony-murder theory that
Mei was an accomplice to Rosa’s uncharged burglary (the earlier entry into Selma’s
house) or uncharged kidnapping.
10
  The trial court also instructed the jury on conspiracy as a theory of liability. Mei does
not challenge the conspiracy instructions; thus, we need not address them here.


                                              23
of the murder [sic] of the first degree, whether the killing is intentional, unintentional, or
accidental.”
       Mei argues that the court should have instructed the jury with the third, optional
paragraph of CALJIC No. 8.27, which provides: “[In order to be guilty of murder, as an
aider and abettor to a felony murder, the accused and the killer must have been jointly
engaged in the commission of the (felony)__________ at the time the fatal [blow was
struck] [wound was inflicted].]” (CALJIC No. 8.27.)
       This provision is derived from People v. Pulido (1997) 15 Cal.4th 713 (Pulido),
which addressed the “scope of complicity” in felony murder, framing the question
presented thusly: “If one person, acting alone, kills in the perpetration of a robbery, and
another person thereafter aids and abets the robber in the asportation and securing of the
property taken, is the second person guilty of first degree murder under section 189?”
(Id. at p. 716.) The court answered the question in the negative, explaining that the
second person is an accomplice to robbery but is not liable for the murder “because the
killer and accomplice were not ‘jointly engaged at the time of such killing’ in a robbery
[citation]; the killer, in other words, was not acting, at the time of the killing, in
furtherance of a ‘common’ design to rob.” (Ibid.)
       Pulido involved a defendant who testified that he and the codefendant were
driving around, stopped at a gas station, and the codefendant went inside while the
defendant waited in the car. Upon hearing a gunshot, the defendant ran into the store and
saw the codefendant with a gun and the gas station employee’s body on the floor. The
defendant went back to the car; the codefendant followed, carrying a cash register which
he dumped on the defendant’s lap. As they drove away, at the codefendant’s direction,
the defendant pried open the register, gave the money to the codefendant, and discarded
the register by the side of the road. (Pulido, supra, 15 Cal.4th at p. 718.) The court
concluded that aiders and abettors who join a felonious enterprise only after a killing has
taken place, so-called “late joiners,” are not liable for the earlier homicide. (Id. at pp.
725-726.)



                                               24
       In Pulido, the Supreme Court did not reach the issue of whether the trial court had
a sua sponte duty to instruct regarding a late-joining accomplice because the defendant
could not demonstrate prejudice from the asserted error. (Pulido, supra, 15 Cal.4th at p.
726.) The factual question posed by the omitted instruction was necessarily resolved
adversely to the defendant under another instruction, the robbery-murder special-
circumstance instruction. (Ibid.) By returning a true finding on the special circumstance
allegation, the jury necessarily found the defendant was engaged in the robbery at the
time of the killing. (Id. at pp. 726-727.)
       To provide guidance in future cases, however, the Pulido court discussed the
standard jury instructions in the context of robbery as the underlying felony: “These
standard instructions are correct in general; when, however, substantial evidence would
permit the jury to find the defendant began aiding and abetting an enumerated felony only
after the killing occurred, they may require modification, or qualification with a special
instruction. Unmodified, CALJIC No. 8.27 appears to tell the jury that an aider and
abettor in an enumerated felony, without any temporal or causal qualification, is liable for
first degree murder in a killing committed by anyone else engaged in the felony. In
combination with [CALJIC No. 9.40.1, concerning the duration of a robbery], CALJIC
No. 8.27 could well suggest to a jury that a person who aids and abets only in the
asportation phase of robbery, after the killing is complete, is nonetheless guilty of first
degree murder under the felony-murder rule. As we have seen, that implication would be
incorrect.” (Pulido, supra, 15 Cal.4th at p. 728.)
       Mei argues the trial court erred in failing to instruct the jury pursuant to paragraph
three of CALJIC No. 8.27, the “complicity instruction,” because, without that point of
clarification, the jury could have found Mei guilty of felony murder even if she did not
aid and abet any underlying felony committed by Rosa until after Rosa killed Selma.
       Respondent contends that Mei was not entitled to the complicity instruction
because it was not supported by the evidence. Respondent relies on the use note to
CALJIC No. 8.27, which provides that the complicity instruction “should only be given if
a defendant contends he or she did not aid and abet until after the fatal blow was


                                              25
stricken.” (Use Note to CALJIC No. 8.27 (Spring 2013 ed.) p. 587, citing Pulido, supra,
15 Cal.4th 713.) Respondent points out that this was not Mei’s theory at trial. Rather, in
her testimony, Rosa repeatedly distanced Mei from any involvement and insisted that
Mei knew nothing other than that Rosa wanted her to watch Elizabeth so she could talk to
Eric. Mei’s counsel argued to the jury that Mei only struck Eric when she saw him
attacking her daughter. Presumably in reliance on the use note, Mei asserts multiple
times in her briefs that she did not aid and abet Rosa until after Rosa killed Selma, and
that this was her theory at trial.
       The parties’ focus on appellants’ theory at trial is misplaced. Although the use
note bases applicability of the instruction on a defendant’s contentions at trial, our
reading of Pulido indicates that the court was focused, rather, on whether substantial
evidence could support a jury finding. Regardless of appellants’ contentions at trial, there
was substantial evidence from which one or more jurors could conclude that Mei was not
present when Rosa killed Selma and that Mei’s “joint engagement” in the commission of
burglary and/or kidnapping did not arise until after Selma was already dead. There was
evidence that Rosa arrived at Selma’s house early that morning, that Selma was killed
early in the day, and that Mei did not arrive at Selma’s house until after 5:00 p.m. for the
purpose of watching the child so Rosa could talk to Eric.11
       A similar situation was present in Pulido, where the defendant claimed he
participated in the robbery only under duress or after reaching a place of temporary
safety, not that he intentionally assisted in the robbery only after the killing. (Pulido,
supra, 15 Cal.4th at p. 726.) Nowhere in Pulido does the court base its conclusion on the
defendant’s contentions or theory at trial, as opposed to substantial evidence from which
the jury could conclude that he was a “late joiner.” (See id. at pp. 726-728 [noting that


11
  There was also evidence that would have supported the opposite finding—that Mei
knew of and participated in Rosa’s plans prior to the commission of the murder and was
“jointly engaged” in the scheme throughout. But it was up to the jury to make that
determination which, in the absence of the Pulido instruction, i.e., paragraph three of
CALJIC No. 8.27, it was prevented from making.


                                              26
when “substantial evidence would permit the jury to find the defendant began aiding and
abetting an enumerated felony only after the killing occurred,” the standard jury
instructions may require modification].) We suggest the use note to CALJIC No. 8.27
could more precisely articulate this point.
       Respondent argues that, even if the instruction could properly have been given, it
merely pinpoints a theory of the defense and Mei waived the instruction by failing to
request it. Mei acknowledges that she did not request the instruction; she contends the
trial court had a sua sponte duty to give it.
       In criminal cases, a trial court must instruct sua sponte on the “ ‘ “general
principles of law relevant to the issues raised by the evidence,” ’ ” that is, those principles
“ ‘ “closely and openly connected with the facts before the court, and which are necessary
for the jury’s understanding of the case.” ’ ” (People v. Breverman (1998) 19 Cal.4th
142, 154.) By contrast, “ ‘pinpoint’ ” instructions “relate particular facts to a legal issue
in the case or ‘pinpoint’ the crux of a defendant’s case, such as mistaken identification or
alibi. [Citation.] They are required to be given upon request when there is evidence
supportive of the theory, but they are not required to be given sua sponte.” (People v.
Saille (1991) 54 Cal.3d 1103, 1119.)
       As noted previously, the Pulido court did not decide whether the trial court had a
sua sponte duty to instruct regarding the timing of an accomplice’s participation in the
underlying felony relative to the killing because the special circumstance finding
necessarily resolved the issue against the defendant. (Pulido, supra, 15 Cal.4th at pp.
726-727.) However, the Pulido court’s statement that the evidence “may require” such
an instruction, albeit dicta, certainly suggests that a sua sponte duty could exist,
depending on the evidence. (Id. at p. 728.) Here, the special circumstance allegation was
stricken after the preliminary hearing, and there is no argument that any other instructions
given to the jury supplied the missing finding regarding the timing of Mei’s participation
in the underlying felony.
       The only case we have found that holds a trial court has a sua sponte duty to
instruct on this issue is People v. Esquivel (1994) 28 Cal.App.4th 1386 (Esquivel), which


                                                27
predates Pulido. In Esquivel, the defendant was convicted of felony murder based on his
participation in the underlying robbery as an aider and abettor. (Id. at pp. 1389, 1393-
1394.) Esquivel and two other men were at the home of an acquaintance when one of the
men attacked and killed the acquaintance. Various items of personal property were stolen
from the acquaintance’s home, including guns that were found at the defendant
Esquivel’s home. (Id. at pp. 1390-1391.) Esquivel argued on appeal that the trial court
“erred in failing to instruct the jury sua sponte that if [he] became an aider and abettor to
a robbery after the victim had already been fatally wounded, he could not be found guilty
of felony murder.” (Id. at p. 1392.) The Court of Appeal agreed and reversed his
conviction, holding Esquivel could not be liable for murder under a felony-murder theory
if he formed the intent to aid and abet the robbery after the murder was committed and
the jury should have been instructed accordingly. (Id. at pp. 1396, 1401.)
       The Esquivel court also held that the trial court had a sua sponte duty to instruct on
the timing of his intent to participate in the underlying felony. (Esquivel, supra, 28
Cal.App.4th at pp. 1398-1399.) Analogizing to the law of conspiracy, Esquivel relied on
People v. Marks (1988) 45 Cal.3d 1335, in which the court stated, “ ‘A conspirator
cannot be held liable for a substantive offense committed pursuant to the conspiracy if the
offense was committed before he joined the conspiracy. [Citations.] The trial court,
however, did not instruct the jury that it must find defendant joined the conspiracy before
the murder. A trial court has a sua sponte duty to instruct on the general principles of law
relevant to the issues raised by the evidence. [Citation.] There was evidence suggesting
that defendant did not join the alleged conspiracy until after the murder.’ ” (Esquivel,
supra, 28 Cal.App.4th at pp. 1398-1399, quoting People v. Marks, supra, 45 Cal.3d at p.
1345.) The Esquivel court also found that no instruction informed the jury that Esquivel,
as an aider and abettor, had to have formed the intent to participate in the robbery before
the murder was committed in order to be found guilty of felony murder. This amounted
to a failure to adequately inform the jury of the relevant legal principles, as to which the
trial court had a sua sponte duty to instruct. (Esquivel, supra, 28 Cal.App.4th at p. 1399.)



                                             28
       Our Supreme Court’s recent case of People v. Wilkins (2013) 56 Cal.4th 333
(Wilkins) also bears on whether the trial court in this case had a sua sponte duty to
instruct regarding the timing of Mei’s participation in the underlying felony for felony-
murder liability. In Wilkins, the defendant burglarized a home under construction, stole
several large appliances, and drove away with them in the bed of a pickup truck. (Id. at
p. 338.) As he was driving, a stove fell off the truck onto the freeway. Another driver
alerted the defendant, but he left it on the freeway and continued to drive. (Id. at pp. 338-
339.) Subsequently, another motorist swerved to avoid the stove, crashed his vehicle,
and was killed. (Id. at p. 339.) The defendant was convicted of first degree murder on
the felony-murder theory that the motorist’s death occurred in the commission of a
burglary. (Id. at p. 340.)
       At trial, defense counsel requested an instruction that, for purposes of felony
murder, the burglary continues until the perpetrator reaches a place of temporary safety,
also known as the “escape rule.” The trial court refused the instruction, and the Court of
Appeal affirmed. (Wilkins, supra, 56 Cal.4th at pp. 337-338, 341.) The California
Supreme Court, however, reversed, based on its determination that the defendant’s
requested instruction was legally correct and supported by substantial evidence, i.e.,
evidence that the defendant was 62 miles from the scene of the burglary when the stove
fell off his truck, he had been driving for about an hour, and there was no evidence that
anyone was following him or was even aware yet of the burglary. Thus, the jury could
have concluded that the defendant had reached a place of temporary safety before the
fatal collision occurred, in which case the murder did not occur while the killer was
engaged in the felony. (Id. at pp. 347-348.) The critical inquiry for applicability of the
felony-murder rule, the court explained, is “whether the murder was ‘committed in the
perpetration of’ the felony. (Pen. Code, § 189, italics added.)” (Id. at p. 346.)
       The parties in Wilkins disagreed on whether the failure to instruct on the escape
rule amounted to misinstruction on an element of the offense, in which case the federal
harmless error standard applied, or a refusal to give a pinpoint instruction, a state law
error. (Wilkins, supra, 56 Cal.4th at pp. 348-349.) The Wilkins court concluded that the


                                             29
federal harmless error standard applied because the instruction the trial court gave
“was—in absence of an instruction on the escape rule—incomplete and misleading.” (Id.
at p. 349.) The court explained: “[T]he jury was told that it could consider ‘[w]hether
the fatal act occurred while the perpetrator was fleeing from the scene of the felony or
otherwise trying to prevent the discovery or reporting of the crime.’ Nothing in the
instruction, however, informed the jury that there was any rule it must apply in
determining whether the felony and the fatal act were part of one continuous transaction
or in determining whether defendant’s flight had ended. . . . Under these instructions,
even a juror who believed that defendant had reached a place of temporary safety before
the fatal act occurred would have no reason to conclude that he or she must find the
defendant not guilty of first degree murder. The instructions given, therefore, amounted
to misinstruction on an element of the offense of first degree murder. Accordingly, the
federal harmless error standard applies.” (Id. at pp. 349-350, fn. omitted.)
       In the instant case, the instruction the trial court gave on the scope of aider and
abettor liability for felony murder was incomplete and misleading in the same way the
instruction in Wilkins was incomplete and misleading. Here, in the context of evidence
that Mei, an alleged aider and abettor, was not present at the scene when the victim was
killed, but arrived later, the instruction failed to advise the jury that, to be liable for
felony murder Mei must have been jointly engaged in the commission or attempted
commission of the underlying burglary and/or kidnapping at the time the fatal blow was
dealt. (See Pulido, supra, 15 Cal.4th at p. 729; CALJIC No. 8.27.) The instructions that
were given provided no guidance to the jury on the timing of Mei’s aiding, promotion,
encouragement or instigation by act or advice, of Rosa’s commission of the burglary
and/or kidnapping. (See Esquivel, supra, 28 Cal.App.4th at pp. 1398-1399.) Under the
instructions as given, a juror who believed that Mei’s aiding and abetting the burglary
and/or kidnapping began after Selma was already dead, such as when Mei arrived at
Selma’s house, “would have no reason to conclude that he or she must find [Mei] not
guilty of felony murder.” (See Wilkins, supra, 56 Cal.4th at pp. 349-350.) Thus, the trial
court here had a sua sponte duty to instruct the jury that felony-murder liability does not


                                               30
attach to a defendant who aids and abets the perpetrator of the crime only after the
killing. (See Pulido, supra, 15 Cal.4th at pp.726, 729.)
       Not surprisingly, the parties disagree about the effect of an instructional error here.
Mei contends the federal harmless error standard applies because the error amounts to
misinstruction on an element of the offense. She further contends that the standard is not
met and reversal is required. Respondent argues, assuming error, it was harmless under
any standard based on “overwhelming evidence” that Rosa and Mei acted together in
planning and preparing to commit the felony that resulted in Selma’s death. Respondent
also argues that the evidence overwhelmingly supported a conviction under a theory of
premeditated malice murder based on the evidence of computer searches for poisons,
other methods of killing, and how to get away with murder as well as evidence of their
actions on the day of Selma’s death.
       We agree with Mei that the federal harmless error standard applies here. A trial
court’s misinstruction on an element of an offense is subject to federal harmless error
analysis under Chapman v. California (1967) 386 U.S. 18. (Wilkins, supra, 56 Cal.4th at
pp. 348-350; People v. Flood (1998) 18 Cal.4th 470, 503-504; Esquivel, supra, 28
Cal.App.4th at p. 1399.) “Instructional error regarding the elements of the offense
requires reversal of the judgment unless the reviewing court concludes beyond a
reasonable doubt that the error did not contribute to the verdict.” (People v. Chun (2009)
45 Cal.4th 1172, 1201; People v. Flood, supra, 18 Cal.4th at p. 504.) The inquiry “is not
whether, in a trial that occurred without the error, a guilty verdict would surely have been
rendered, but whether the guilty verdict actually rendered in this trial was surely
unattributable to the error.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 279.) Phrased
another way, the error is harmless only “if other aspects of the verdict or the evidence
leave no reasonable doubt that the jury made the findings necessary” for a valid first-
degree murder theory. (People v. Chun, supra, 45 Cal.4th at p. 1205.)
       Here, under the instructions given, the jury could have convicted Mei of first
degree murder on a felony-murder theory either on the inference that she aided and
abetted Rosa’s burglary and/or kidnap at the time Selma was killed or on the inference


                                             31
she began aiding and abetting Rosa after Selma was killed.12 The instructions did not
require the jury to decide whether Mei was aiding and abetting at the time of Selma’s
death; no other aspects of the verdict or the evidence eliminate reasonable doubt that the
jury made that necessary finding. (See People v. Chun, supra, 45 Cal.4th at pp. 1204-
1205.) Although the jury clearly disbelieved appellants’ theory that Mei knew nothing
and was completely uninvolved upon entering Selma’s house, as evidenced by the jury’s
separate burglary verdict against Mei, the jury nevertheless could have believed that
Mei’s involvement did not constitute aiding and abetting until after Selma was killed. On
this record, we are unable to conclude beyond a reasonable doubt that the error did not
contribute to the verdict. (See id. at p. 1201.) Thus, the error was prejudicial.
         Our determination that Mei’s murder conviction must be reversed renders it
unnecessary for us to consider her other claims of instructional error regarding the
murder charge.
      D. Rosa’s Statement
         Rosa contends the trial court erred in admitting her post-arrest statement for
impeachment purposes at trial. She argues that the statement was involuntary and should
have been suppressed for all purposes.
      1. Background
         Several hours after her arrest, shortly after 12:00 a.m. on January 8, 2009, Rosa
was interviewed by two deputies of the Alameda County Sheriff’s Department at a police
station in Dublin. Before the interview, Rosa did not express any physical discomfort;
she declined the deputies’ offer of food or water or to use the restroom. The interview
was videotaped.
         The deputies advised Rosa of her Miranda13 rights. The advisement took some
time, as Rosa expressed doubt about understanding her rights, asked questions, such as
whether requesting a lawyer would “delay the process,” expressed concern about her
12
  The jury was also instructed on conspiracy principles and first degree murder as a
“willful, deliberate and premeditated killing with express malice aforethought.”
13
     Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).


                                              32
ability to express herself, and stated that she had “very little understanding” about the
legal process. The deputies discouraged her from requesting an attorney by telling her an
attorney would prevent her from speaking with them, suggesting or implying that her
only opportunity to tell her story was to waive her rights. In response to Rosa’s saying,
“if I choose to remain silent and my side of the story wouldn’t be told,” one of the
deputies responded, “Exactly.” Rosa indicated that she did not understand the role of an
attorney and, after stating they could not give legal advice and that an attorney would
prevent her from speaking with them, the same deputy told Rosa, “you were found with a
gun in your pocket” and “I think you should explain.” The deputy further stated, “[Y]ou
have some explaining to do. [¶] . . . [¶] [Y]ou either explain it to us now . . . [¶] . . . or
we go to trial and—and you sit there and you let the jury wonder what really happened
because you didn’t say anything.” After an extended colloquy, Rosa agreed to speak with
them.
        Rosa told the deputies she took BART and then a cab to Selma’s house in order to
talk to Eric about the child. She called and asked her mother to meet her there. When
Rosa arrived, the door was open but no one was home. Mei came after work, and she and
Rosa went into the house. Eric came home shortly thereafter with the baby, and Rosa
tried to talk to him. He went “berserk” and attacked her, banging her head on the floor,
which was when her mother “came to me and tried to help me.” Eric had a gun in his
hand and Rosa was afraid he was going to shoot her. He dropped it during the struggle,
and she picked it up and put it in her pocket. Mei shot Eric with a Taser to keep him
from killing Rosa. Rosa denied any involvement in Selma’s death.
        On March 9, 2011, Rosa filed a motion to suppress her statement. She argued the
deputies failed to give correct Miranda advisements. The trial court agreed that the
deputies had misadvised Rosa, and found her waiver was not voluntary: “The matter
being submitted, the Court is really very disturbed as to how this process went on. . . .
[¶] . . . [¶] The biggest offender, and I think [defense counsel] hits it, is Detective Horn.
Maybe it was a misstatement on his part where he makes a comment to the effect, well,
unless you talk to us, your side of the story isn’t going to be heard by the jury. If it were


                                               33
an isolated incident and he later correctly set forth what the situation was or just stayed
away from it, it wouldn’t be so problematic because when you take this situation in light
of the cases, you can break it down, as [the prosecutor] has done, to isolated parts and
you can get—it isn’t problematic, but here when you take a look at the totality of what is
going on and the belittling of the role of the attorney as highlighted by Detective Horn’s
comment to the effect that, how can an attorney tell it better than you, especially if they
are not there; I mean, attorneys generally are not at the crime scene. If they are, they are
witnesses and they are not representing a party. And then it just goes on from there.
       “It becomes extremely problematic and it does in many, many ways appear to
undermine the very purpose of giving the Miranda warnings.
       “So the Court finds that the totality of the circumstances are such that the Court is
not satisfied that there was a voluntary waiver on the part of the defendant with regard to
her rights under Miranda, that the statements of Detective Horn were extremely
misleading with regard to the role of the attorney and down playing that role.
       “There’s certainly ways—artful ways in which some of these things could have
been addressed, but the overall totality indicating that an attorney can’t tell it better than
you and the fact that you’re not—your side isn’t going to be heard, unless you speak with
us, really does seem to negate Miranda and undermine it.
       “Therefore, the Court will rule that there is a Miranda violation and the statement
can’t be used by the prosecution. However, the Court does note that should Ms. Hill
choose to testify in this matter, then it is available for purposes of impeachment under the
appropriate U.S. Supreme Court and California Supreme Court authorities.”
       Defense counsel objected to use of Rosa’s statement for impeachment, arguing
that the deputies’ coercive conduct rendered the statement itself involuntary, and asked to
brief that issue. The court, however, stated that it was “not a voluntariness issue,” and
did not find “anything here that constitutes necessarily any form of undue oppression.”
       The court ruled: “With regard to that request, the Court is denying your motion.
The Court finds that you used the term ‘coercive.’ I don’t necessarily find coercive.
What I find is the fact that the police officers are required to give certain basic


                                              34
information about one’s rights; that wasn’t done here. [¶] At the same point in time, I
don’t find your client to be one who is confused by the totality of the circumstances to the
degree that her will is overborne and she doesn’t really have a sense of what’s going on
or that she was sort of worn down. I don’t find that. [¶] What I find is that the cops had
a responsibility to give certain information and the law sets forth how they’re supposed to
do that and they failed that and they undermined that and that’s why this statement is
being kept out.
        Before Rosa testified at trial, her counsel renewed the objection to the use of
Rosa’s statement for impeachment purposes. The trial court overruled the objection.
During cross-examination, the prosecutor impeached Rosa with a number of her false
statements, including that she took BART to Dublin on the day of the offense, that the
door to Selma’s house was open when she arrived, that Selma was not at home that day,
and that Eric had a gun. When Rosa testified that Mei had not fired her Taser at Eric, the
prosecutor impeached Rosa with her earlier statement to the contrary. Rosa
acknowledged that she had tried to avoid incriminating herself to the deputies.
     2. Legal Principles
        In California, the admissibility of confessions is governed by federal law. (See
Cal. Const., art. I, § 28, subd. (f)(2);14 People v. Peevy (1998) 17 Cal.4th 1184, 1188.) In
Miranda, the United States Supreme Court held that persons subject to custodial
interrogation must be advised of certain Fifth Amendment rights, including the right to
remain silent and the right to counsel, in order to protect the exercise of the privilege
against self-incrimination. (People v. Peevy, supra, 17 Cal.4th at pp. 1191-1192.)
Subsequently, the court held that statements obtained in violation of Miranda procedures
may be admissible for impeachment purposes if the statements are voluntary. (Oregon v.
Hass (1975) 420 U.S. 714, 722 [statement obtained after police fail to honor the
accused’s request for counsel is admissible for impeachment purposes]; Harris v. New

14
  Current section 28, subdivision (f)(2), was previously subdivision (d). The passage of
Proposition 9 by the voters in 2008 amended section 28, resulting in some renumbering
of previously existing subdivisions.


                                              35
York (1971) 401 U.S. 222, 224, 226 [statement taken without advising the defendant of
his right to appointed counsel may be admitted for impeachment].) The court explained
that the benefit to the jury of evaluating the defendant’s credibility in light of prior
inconsistent statements should not be lost, and that, assuming the exclusionary rule has
the effect of deterring police misconduct, there was sufficient deterrence when the
prosecution is barred from using the statements in its case in chief. (Oregon v. Hass,
supra, 420 U.S. at p. 722; People v. Peevy, supra, 17 Cal.4th at p. 1194.)
       Here, the prosecution conceded that Rosa’s statement was taken in violation of
Miranda procedures and sought only to use the statement as impeachment evidence if
Rosa took the stand. Rosa argued that not only was her waiver of her rights involuntary
in violation of Miranda, but also her statement itself was coerced and therefore
involuntary.
       Involuntary confessions are inadmissible under the due process clauses of both the
federal and state constitutions. (Jackson v. Denno (1964) 378 U.S. 368, 385-386; People
v. Benson (1990) 52 Cal.3d 754, 778 (Benson).) The prohibition is based on the
“inherent untrustworthiness” of involuntary confessions, as well as on “the deep-rooted
feeling that the police must obey the law while enforcing the law; that in the end life and
liberty can be as much endangered from illegal methods used to convict those thought to
be criminals as from the actual criminals themselves.” (Spano v. New York (1959) 360
U.S. 315, 320-321.) In general, a statement is voluntary “if the accused’s decision to
speak is entirely . . . without ‘any form of compulsion or promise of reward.’ ” (People
v. Thompson (1980) 27 Cal.3d 303, 327-328, disapproved on other grounds in People v.
Rowland (1992) 4 Cal.4th 238, 260, and People v. Scott (2011) 52 Cal.4th 452, 470.)
Conversely, a statement is involuntary if it is not the product of “ ‘a rational intellect and
a free will.’ ” (Mincey v. Arizona (1978) 437 U.S. 385, 398.) Courts look to whether an
individual’s “will was overborne at the time he confessed.” (Lynumn v. Illinois (1963)
372 U.S. 528, 534; People v. Sanchez (1969) 70 Cal.2d 562, 572.) Thus, a confession is
involuntary if it was obtained by threats or violence, or by any direct or implied promises,
or by the exertion of improper influence. (Benson, supra, 52 Cal.3d at p. 778, and cases


                                              36
cited therein.) Coercive police activity is a necessary predicate to a finding that a
statement is involuntary. (See Colorado v. Connelly (1986) 479 U.S. 157, 167; Benson,
supra, 52 Cal.3d at p. 778.)
       At trial, the prosecution has the burden to establish, by a preponderance of the
evidence, that a defendant’s confession was voluntary. (Lego v. Twomey (1972) 404 U.S.
477, 489; People v. Massie (1998) 19 Cal.4th 550, 576.) “Under both state and federal
law, courts apply a ‘totality of circumstances’ test to determine the voluntariness of a
confession. [Citations.] Among the factors to be considered are ‘ “the crucial element of
police coercion [citation]; the length of the interrogation [citation]; its location [citation];
its continuity” as well as “the defendant’s maturity [citation]; education [citation];
physical condition [citation]; and mental health.” ’ (People v. Williams [(1997)] 16
Cal.4th [635,] 660.)” (People v. Massie, supra, 19 Cal.4th at p. 576.)
       On appeal, the reviewing court independently determines the voluntariness of a
defendant’s statement, but upholds the trial court’s findings as to the factual
circumstances, i.e., its “ ‘ “resolution of disputed facts and inferences, and its evaluations
of credibility, if supported by substantial evidence.” ’ ” (People v. Sapp (2003) 31
Cal.4th 240, 267; Benson, supra, 52 Cal.3d at p. 779; People v. Memro, supra, 11 Cal.4th
at p. 826.)
   3. Analysis
       Rosa contends that her post-arrest statement was involuntary and thus inadmissible
for any purpose, citing statements by the deputies she contends were misleading and
circumstances she claims rendered the interrogation involuntary. Rosa relies on portions
of the interview after the deputies read her the Miranda advisements and while she was
deciding whether to make a statement. To provide context, we quote at length from the
transcript, using italics to highlight the statements Rosa contends were improper.
[Detective Horn]: “And Rosa, you got—you have some explaining to do.
[Rosa]: “Yeah.
[Detective Horn]: “I mean you either . . . .
[Rosa]: “I want you to tell me . . . .


                                               37
[Detective Horn]: “ . . . explain it—you either explain it to us now . . . .
[Rosa]: “Mm-hm.
[Detective Horn]: “ . . . or we go to trial and—and you sit there and you let the jury
wonder what really happened because you didn’t say anything. So, you know, that’s my
view on this. That’s my personal opinion about this.
[Rosa]: “Mm-hm.
[Detective Horn]: “Is that I think that people should, you know, if they’ve done nothing
wrong, it’s my personal belief that they should tell me what happened. But we have—
we’re—we’re—we’re bound by the law and the law says that we must tell you what your
rights are. And we just read those to you.
[Rosa]: “Okay.
[Detective Horn]: “You say you understand ’em so now the only decision is do you trust
yourself enough to, um, be able to communicate effectively with us? And—and—and
my sense is that you—yes you can.
[Rosa]: “And that’s . . . .
[Detective Horn]: “You definitely can communicate. I’m quite sure you wrote some
essays in college. So . . .
[Rosa]: “Well no topics like this.
[Detective Horn]: So but is—I mean, you know, from my perspective is that because you
don’t wanna talk about it because something—something was wrong with what you did
or—or is it really because you’re afraid that, you know, to communicate effectively.
[Detective Sanchez]: “Just question us there . . .
[Rosa]: “It’s really about am I not communicate effectively?
[Detective Sanchez]: “Well the questions . . .
[Detective Horn]: “Not everybody’s gonna interpret that way.
[Detective Sanchez]: “Yeah. The questions arise and—and other minds as far as to . . .
[Detective Horn]: “So we—we really—we’re talking way too much about this.
[Detective Sanchez]: “Yeah.
[Detective Horn]: “I—I need you to make a decision.


                                              38
[Rosa]: “I’ll give it a try.
[Detective Horn]: “Okay. So, having your rights in mind, do you wish to speak to us
now? Okay.
[Rosa]: “Sure.
[Detective Horn]: “So, and I’ll take that. Now remember what I said. If at any point in
time during this interview you feel uncomfortable, you need to say that’s it, I don’t
wanna talk anymore. We stop. That’s the neat thing about it. We just quit whenever you
tell us to quit. Okay? All right. So let’s . . . .
[Rosa]: “(Unintelligible) ask you one question.
[Detective Horn]: “Mm-hm. Sure.
[Rosa]: “Um, so after I tell you my side of the story, does this still go to court or
how . . . .
[Detective Horn]: “Well we’re gonna submit this case to the district attorney’s office.
[Rosa]: “Mm-hm.
[Detective Horn]: “And it’ll be the district attorney’s office decision on—on what to do.
On whether or not they charge this case.
[Rosa]: “Okay.
[Detective Horn]: “Okay?
[Detective Sanchez]: “Whether they file a complaint against you or anybody.
[Detective Horn]: “In the meantime, we’re gonna hold you, you know, pending, you
know, your—your day in court.
[Rosa]: “Okay.
[Detective Horn]: “Which you’ll be arraigned within 48 hours.
[Rosa]: “(Unintelligible) okay.
[Detective Horn]: “Okay?
[Rosa]: “Mmm.
[Detective Horn]: “So, let’s start at the beginning.
[Rosa]: “Okay.”



                                               39
       Rosa first argues the deputies misled her by telling her this was her only chance to
tell her story and explain the gun in her pocket; otherwise, at trial, the jury would
“wonder what really happened because you didn’t say anything.” Then they pressed her
to decide whether or not to give a statement. Although an “experienced suspect” would
know she had a constitutional right to testify at trial, according to Rosa, the record
reflects that she was “naïve about criminal proceedings.” The deputies misled her again,
Rosa contends, by “saying it was the district attorney’s decision whether or not to charge
the case … when they knew that, with a dead body found stuffed in a barrel and hidden in
a backyard shed, there was no doubt whatsoever that she would be charged with murder.”
       Although improper under Miranda, the deputies’ statements did not render Rosa’s
confession involuntary. True, Detective Horn’s statements suggesting that this was
Rosa’s only chance to tell her side of the story were misleading regarding her right to
testify at trial, and the trial court found a Miranda violation based in part on those
statements. Under different circumstances, such interrogation techniques could be
coercive and render the confession involuntary. (See, e.g., Commonwealth v. Novo
(2004) 442 Mass. 262, 268-270 [holding confession involuntary where officers
repeatedly warned murder defendant that the jury would never hear his side of the story if
he did not make a statement to them], disapproved on another ground in Commonwealth
v. Thomas (2014) 469 Mass. 531, 542.) Here, however, we agree with the trial court that,
under the totality of the circumstances, Rosa’s statement was voluntary. Although Rosa
was concerned about being able to tell her story, the story she chose to tell was almost
entirely fabricated, as she later testified. The trial court found “gamesmanship” during
the interview by both Rosa and the deputies, which is supported by the record. The trial
court noted that, on one hand, the officers realized they were dealing with “a well-
educated woman who could comprehend what they were saying to her,” and “did not
have the great difficulty of communication . . . .” At the outset of the interview, the
deputies indicated to Rosa that they had information about the case from speaking with
other witnesses, but that they could not discuss the matter with her unless she wanted to
talk with them. They later reiterated that if she requested an attorney, their interview


                                             40
with her would be over. Rosa, on the other hand, asked a number of questions, such as
whether requesting an attorney would “delay the process,” what was the role of an
attorney, and whether, after making a statement, the matter would “still go to court.” She
also expressed concern about her ability to “use the right words” and to communicate
adequately. In finding that her statement was voluntary, the court found, and we agree,
that Rosa was not “confused by the totality of the circumstances to the degree that her
will [was] overborne and she [did not] really have a sense of what’s going on or that she
was sort of worn down.”
       The deputies made no improper threats or promises of leniency. Likewise, they
used no coercive psychological ploys that would tend to produce an involuntary and
untrue statement. “ ‘The courts have prohibited only those psychological ploys which,
under all the circumstances, are so coercive that they tend to produce a statement that is
both involuntary and unreliable.’ ” (People v. Jones (1998) 17 Cal.4th 279, 297-298.)
Moreover, “[i]t is well settled that ‘mere advice or exhortation by the police that it would
be better for the accused to tell the truth when unaccompanied by either a threat or a
promise does not render a subsequent confession involuntary.’ [Citation.] . . . [T]he
distinction between permissible and impermissible police conduct ‘does not depend upon
the bare language of inducement but rather upon the nature of the benefit to be derived by
the defendant if he speaks the truth as represented by the police.’ [Citation.] In terms of
assessing inducements assertedly offered to a suspect, ‘ “[w]hen the benefit pointed out
by the police . . . is merely that which flows naturally from a truthful and honest course of
conduct,” the subsequent statement will not be considered involuntarily made
[citation].’ ” (People v. Belmontes (1988) 45 Cal.3d 744, 773, disapproved on other
grounds in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22.) Here, the only benefit
suggested by the deputies was the opportunity to explain what happened to both the
deputies and the jury, a benefit that was free of any tendency to influence the truth or
reliability of the statement.
       Rosa argues that the police may not lie to a suspect about the law, but her reliance
on People v. Cahill (1994) 22 Cal.App.4th 296 (Cahill) is misplaced. In Cahill, the


                                             41
officers told the defendant he could help himself and avoid a first-degree murder charge
by admitting he was inside the victim’s house and had knowledge of the killing to show
the murder was not premeditated. (Id. at p. 314.) The officers also misled the defendant
about the law by implying that the death penalty would not apply if the murder were not
premeditated, with no mention of the felony-murder rule “and the consideration that a
statement admitting defendant’s presence in the house would amount to a confession of
felony murder.” (Id. at p. 315.) The court found the officers’ interrogation tactics
amounted to a threat or promise of leniency: “The clear implication of their remarks is
that defendant would be tried for first degree murder unless he admitted that he was
inside the house and denied that he had premeditated the killing.” (Id. at p. 314.)
       Rosa argues that this case is similar to Cahill in that, here, the officers falsely told
her that this was her one chance to tell her side of the story and that she had to make her
decision whether to talk then and there. Although we are somewhat troubled by the
deputies’ linking her right to testify at trial to invoking her Miranda rights, as we have
discussed, in this case, unlike Cahill, there was no suggestion by the deputies that Rosa
could avoid charges by giving a statement, nor any other false promise of leniency as
inducement. Although she was misadvised as to her Miranda rights, she was not misled
as to the substantive law.
       Rosa’s argument that the deputies misled her by telling her that the charging
decision would be made by the district attorney is also without merit, for the simple
reason that the deputies’ statement was correct. “It is well settled that the prosecuting
authorities, exercising executive functions, ordinarily have the sole discretion to
determine whom to charge with public offenses and what charges to bring. [Citations.]
This prosecutorial discretion to choose, for each particular case, the actual charges from
among those potentially available arises from ‘ “the complex considerations necessary for
the effective and efficient administration of law enforcement.” ’ ” (People v. Birks
(1998) 19 Cal.4th 108, 134.) Moreover, Rosa does not explain how the deputies’
statements regarding the charging authority of the district attorney amounted to a threat
or a promise of benefit or leniency as inducement to give a statement.


                                              42
       Finally, Rosa contends her statement was coerced because “the totality of the
circumstances . . . resulted in an involuntary interrogation.” Rosa points to the specific
circumstances of her being taken in handcuffs first to the hospital to be examined for a
head injury, then to the police station where she waited for about three hours before the
interrogation began a few minutes after midnight.
       The record does not support Rosa’s claim of coercion. The delay between her
arrest and interrogation was not coercive. The deputies took her to the hospital to be
medically cleared before taking her to the police station. At the police station, Rosa had
to wait because there was only one interview room with audiovisual equipment, and the
police interviewed other witnesses first. There was food and water for Rosa on the table
in the interview room, and the interview itself, the portion that is at issue, was brief,
lasting approximately 14 minutes. Among the other factors courts consider in assessing
the totality of the circumstances, such as the defendant’s maturity, education, physical
condition and mental health (People v. Massie, supra, 19 Cal.4th at p. 576), the record
does not reflect that Rosa was “unduly distressed or subjected to any abusive or improper
interrogation techniques.” (See People v. Hill (1992) 3 Cal.4th 959, 981, disapproved on
another ground in Price v. Superior Court (2001) 25 Cal.4th 1045, 1069, fn. 13.) At the
time of the interview, Rosa was 34 years old, college-educated, and there is no indication
that she was suffering from any physical or mental health conditions that would affect our
analysis.
       Ultimately, Rosa’s claim of coercion fails because there is no indication in the
record that her “will was overborne at the time [she] confessed.” (Lynumn v. Illinois,
supra, 372 U.S. at p. 534; People v. Sanchez, supra, 70 Cal.2d at p. 572.) Rosa
acknowledged on the stand that she lied to the deputies in an attempt to avoid
incriminating herself. Thus, her “own behavior and testimony virtually preclude[] a
conclusion that [her] free will was overborne by the substance or manner of the
interrogation.” (People v. Belmontes, supra, 45 Cal.3d at p. 774.) The trial court did not
err in admitting Rosa’s statement for impeachment purposes.



                                              43
   E. Prosecutorial Misconduct
       Rosa contends the prosecutor engaged in several instances of misconduct during
cross-examination and closing arguments. Rosa argues the misconduct deprived her of
her federal and state due process rights to a fair trial and an impartial jury.
       “ ‘A prosecutor is held to a standard higher than that imposed on other attorneys
because of the unique function he or she performs in representing the interests, and in
exercising the sovereign power, of the state. [Citation.] As the United States Supreme
Court has explained, the prosecutor represents “a sovereignty whose obligation to govern
impartially is as compelling as its obligation to govern at all; and whose interest,
therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be
done.” (Berger v. United States (1935) 295 U.S. 78, 88.).’ ” (People v. Hill (1998) 17
Cal.4th 800, 820 (Hill).) At the same time, “[a] prosecutor may ‘vigorously argue his [or
her] case, and is not limited to “Chesterfieldian politeness[.]” ’ ” (People v. Fosselman
(1983) 33 Cal.3d 572, 580.)
       Claims of prosecutorial misconduct are governed by separate federal and state
standards. “ ‘A prosecutor’s conduct violates the Fourteenth Amendment to the federal
Constitution when it infects the trial with such unfairness as to make the conviction a
denial of due process. Conduct 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 trial court or
the jury.’ [Citation.] When a claim of misconduct is based on the prosecutor’s
comments before the jury, . . . ‘ “the question is whether there is a reasonable likelihood
that the jury construed or applied any of the complained-of remarks in an objectionable
fashion.” ’ ” (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 305.)
       Allegations of prosecutorial misconduct are subject to waiver. “To preserve a
claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely
objection, make known the basis of his objection, and ask the trial court to admonish the
jury.” (People v. Brown (2003) 31 Cal.4th 518, 533.) The purpose of the waiver rule
“ ‘is remedial in nature, and seeks to give the court the opportunity to admonish the jury,


                                               44
instruct counsel and forestall the accumulation of prejudice by repeating improprieties,
thus avoiding the necessity of a retrial. . . . ’ ” (Ibid.) The requirements of an objection
and a request for admonishment are excused only if an objection or request for
admonishment would have been futile; an admonition would not have cured the harm
caused by the misconduct; or the court immediately overrules an objection, leaving the
defendant with no opportunity to request an admonishment. (People v. Boyette (2002) 29
Cal.4th 381, 432, citing Hill, supra, 17 Cal.4th at pp. 820-821.)
       Rosa claims that the prosecutor disparaged her testimony during cross-
examination, based on the following exchange:
[Prosecutor]: “Your daughter was being sexually assaulted in front of your very eyes and
what did you do to stop it, Ms. Hill?
[Rosa]: “I tried to get him to open the door.
[Prosecutor]: “Baloney.
[Rosa’s counsel]: “Objection. That’s argumentative.
[Mei’s counsel]: “Objection.
The Court: “Sustained.
[Prosecutor]: “I apologize to the Court. I’m sorry.”
       Rosa acknowledges that the objections were sustained, but complains that this
outburst from the prosecutor was improper and highly prejudicial. We agree that the
prosecutor’s response was improper and the objections were correctly sustained.
However, if defense counsel felt that any other curative action was required, it was
counsel’s responsibility to ask the trial court to admonish the jury to disregard the
improper remark. (Hill, supra, 17 Cal.4th at p. 820; People v. Visciotti (1992) 2 Cal.4th
1, 79.) Defense counsel requested no such admonition, and we find no basis for
concluding that such a request would have been futile or would not have cured any
alleged misconduct. (See Hill, supra, at p. 820.) The issue is forfeited on appeal.
However, even on the merits, we would find no prejudice because the improper statement
was brief, the objections were sustained, the prosecutor moved on, and there was no
recurrence.


                                             45
       Next, Rosa argues the prosecutor committed misconduct by misstating the
evidence during his closing arguments, “most significantly regarding the circumstances
of the death of [Selma] Hill.” As the first such instance, Rosa cites the prosecutor’s
statement: “[Ninety-one] years old. And you just don’t do that to an old person. Over
and over, over and over, blow after blow, tased after tased.” Counsel objected that this
misstated the evidence, and the court admonished the jury: “Ladies and gentlemen,
you’ve heard the evidence. Rely upon your own recollection and the logical inferences
that can be drawn from the evidence that you’ve heard.”
       The prosecutor continued: “Dr. Rogers said that there were numerous sites on
[Selma] Hill’s body that had the, quote, unquote, heat effect, four to five of them.
Coagulation. Heat. Consistent with the fact that they occurred in life. Hit over and over
again, tased multiple times, and hit again. 91 years old. When you do an act to a 91-
year-old person like that, we don’t care what your state of mind is. It’s as dangerous as
dropping a cinderblock off the side of a freeway with oncoming traffic. In fact, it’s
worse. There could be no other conclusion about what your acts are going to do to an old
person like [Selma] when you do the things that they did to her.” In response to defense
counsel’s objection that the argument misstated the testimony, the court again instructed
the jurors to “rely upon your own recollection of the evidence, please.”
       Subsequently, the prosecutor argued:
[Prosecutor]: “The cause of death to [Selma] Hill was asphyxiation, and this is Dr.
Rogers’ conclusion: Asphyxiation due to strangulation associated with multiple blunt
injuries. He testified that the normal person, typical person, dies three to five minutes as
a result of this. That was his testimony. And he says that the death was consistent with
manual strangulation. That’s medical terminology for, you put your hands on someone’s
throat and you squeezed it until they died.
[Rosa’s counsel]: “Your Honor –
[The Court]: “Ladies and gentlemen, you’ve heard the evidence and you draw your own
conclusions from the evidence. Counsel can make logical arguments that flow from



                                              46
inferences that are established by the evidence. [¶] The objection is overruled. [¶] Ms.
Narby [Rosa’s counsel], you can nod your head negatively all you want.
[Rosa’s counsel]: “I never –
[The Court]: “I understand the record. I understand the evidence, and I’m sure you’re
going to argue your view of it, but not at this stage.”
       Rosa cites other instances in the record where defense counsel objected that the
prosecutor was misstating the evidence, but she identifies these examples by page
number only. Summarizing these claims based on our review of the record, it appears
that Rosa takes issue with statements to the effect that: (1) Mei lied to Eric about where
his grandmother was “because Mei knew that something was really wrong with [Selma]”;
(2) Rosa’s testimony that she did not lose a gun in the place where it was found was a
“red herring”; (3) Rosa tased Selma four to five times; (4) Ping stayed slumped down
inside the Prius and did not get out or inquire about his wife, even when emergency
vehicles arrived and police taped off the street; (5) Rosa told multiple lies when she
testified; (6) the jury should compare the handwriting on different pieces of evidence and
note the differences; and (7) Rosa and Mei did not tell anyone that they lived in
Brentwood because Brentwood was where all the evidence was, including the computer
“with all the searches.”
       For the most part, the court overruled the objections and/or admonished the jury to
rely on their own recollection of the evidence. The court also advised that “[c]ounsel can
draw logical inferences that flow from the evidence that has been presented,” and that
the statements of the attorneys are not evidence.
       When a claim of prosecutorial misconduct is based on claims that a prosecutor has
misstated or mischaracterized evidence, the California Supreme Court has explained that
“ ‘ “ ‘a prosecutor is given wide latitude during argument. The argument may be
vigorous as long as it amounts to fair comment on the evidence, which can include
reasonable inferences, or deductions to be drawn therefrom.’ ” ’ ” (Hill, supra, 17
Cal.4th at pp. 819-820.) Moreover, “[w]hile counsel is accorded ‘great latitude at
argument to urge whatever conclusions counsel believes can properly be drawn from the


                                              47
evidence [citation],’ counsel may not assume or state facts not in evidence [citation] or
mischaracterize the evidence [citation]. ‘ “Whether the inferences the prosecutor draws
are reasonable is for the jury to decide.” ’ ” (People v. Valdez (2004) 32 Cal.4th 73, 133-
134.) Further, “[a]lthough defendant singles out words and phrases, or at most a few
sentences, to demonstrate misconduct, we must view the statements in the context of the
argument as a whole.” (People v. Dennis (1998) 17 Cal.4th 468, 522.)
       We have considered all of Rosa’s claims of error, and find none of them, nor the
totality of them considered together, to constitute prosecutorial misconduct. Rosa
identifies no specific misstatements of the evidence; nor does she explain in what ways a
particular statement was inaccurate or a mischaracterization. Our review has uncovered
no instance in which the prosecutor’s argument was not supported by the evidence or
inferences that could be drawn from the evidence, including, inter alia, evidence
pertaining to Selma Hill’s age and health, the pathologist’s testimony regarding the
injuries Selma sustained and the cause of her death, Rosa’s testimony regarding her
actions in hitting and tasing Selma, and evidence recovered at the Brentwood house. The
court admonished the jury repeatedly to rely on its own understanding of the evidence.
The court also instructed the jury pursuant to CALJIC No. 1.02 that the statements of the
attorneys are not evidence, and the jury is presumed to have followed this instruction.
(See People v. Holt (1997) 15 Cal.4th 619, 662.) We find the challenged statements here
to be vigorous but fair comment on the evidence, including logical inferences and
deductions drawn therefrom. (See Hill, supra, 17 Cal.4th at p. 819; People v. Wharton
(1991) 53 Cal.3d 522, 567.)
       Rosa also argues that the remarks were an improper appeal to the passions or
prejudices of the jury. This court has recognized that “ ‘ “It is, of course, improper to
make arguments to the jury that give it the impression that ‘emotion may reign over
reason,’ and to present ‘irrelevant information or inflammatory rhetoric that diverts the
jury’s attention from its proper role, or invites an irrational, purely subjective response.’
[Citation.]” ’ [Citation.] ‘It has long been settled that appeals to the sympathy or
passions of the jury are inappropriate at the guilt phase of a criminal trial.’ ” (People v.


                                              48
Vance (2010) 188 Cal.App.4th 1182, 1192.) Rosa raises this contention for the first time
on appeal, however. As we have stated, an objection that is not raised in the trial court is
not preserved for appeal. (Hill, supra, 17 Cal.4th at p. 820.)
       Even on the merits, we find the prosecutor’s comments to be vigorous, but not
improper, argument. Rosa does not elaborate or explain her contention that the
prosecutor “repeatedly engaged in . . . inflammatory rhetoric”, apparently concluding that
the transcript will speak for itself. She cites cases that stand for the proposition that it is
improper for the prosecutor to appeal to passion or prejudice in closing argument,
namely, People v. Pensinger (1991) 52 Cal.3d 1210, 1250, and People v. Simington
(1993) 19 Cal.App.4th 1374, 1378, but these cases are readily distinguishable. In
Simington, the prosecutor asked the jurors to put themselves in the victim’s shoes by
imagining themselves on the way home from jury service and confronted with a much
larger assailant with a knife who demands money and stabs them. (19 Cal.App.4th at p.
1378.) In Pensinger, which involved offenses including kidnapping and murder of a
child, the prosecutor asked the jurors to imagine that the child victim was their own child,
not someone else’s child. (52 Cal.3d at p. 1250.) The prosecutor’s remarks here
emphasized that Selma was 91 years old, frail, and that she sustained a number of injuries
consistent with blunt force trauma and heat. We find no improper appeal to passion or
prejudice.
       Finally, Rosa argues she was severely prejudiced by the prosecutor’s misconduct.
She contends the case was close, as evidenced by 18 hours of jury deliberations during
which time the jury sent six notes to the court, and the verdicts must have been affected
by the misconduct, given “ ‘the special regard the jury has for the prosecutor.’ ” (People
v. Bolton (1979) 23 Cal.3d 208, 213.) We disagree. Even were we to find misconduct by
the prosecutor in exaggerating the facts or appealing to the passions of the jury, we would
nevertheless conclude that the error was harmless under either federal or state law. On
this record, any such misconduct “did not ‘ “ ‘ “so infect[] the trial with unfairness as to
make the resulting conviction a denial of due process” ’ ” ’ in violation of the federal
Constitution.” (People v. Wallace (2008) 44 Cal.4th 1032, 1071; see Hill, supra, 17


                                               49
Cal.4th at p. 819.) Moreover, considering each of the challenged comments in context,
“we simply cannot conclude that the prosecutor used a method to persuade the jury that
was ‘deceptive’ or ‘reprehensible’ ” in violation of California law. (People v. Berryman
(1993) 6 Cal.4th 1048, 1072, overruled on another ground in Hill, supra, 17 Cal.4th at p.
823, fn. 1.) There is no reasonable probability that a result more favorable to Rosa would
have been reached without the alleged misconduct. (See People v. Wallace, supra, 44
Cal.4th at p. 1071; People v. Watson (1956) 46 Cal.2d 818, 836.)
   F. Sufficiency Of The Evidence Of Attempted Murders
       Both Rosa and Mei contend that the evidence is insufficient to sustain their
convictions for the attempted murder of Eric. They point out that they brought many
more weapons to Selma’s house than they actually used in attacking Eric, and asked him
during the attack to give up Elizabeth, contending this shows they did not intend to kill
him.
       A conviction that is not supported by substantial evidence violates the due process
clauses of both the Fourteenth Amendment to the United States Constitution and article I,
section 15 of the California Constitution. (Jackson v. Virginia (1979) 443 U.S. 307, 317-
319; People v. Rowland (1992) 4 Cal.4th 238, 269.) “In assessing a claim of
insufficiency of evidence, the reviewing court’s task is to review the whole record in the
light most favorable to the judgment to determine whether it discloses substantial
evidence—that is, evidence that is reasonable, credible, and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”
(People v. Rodriguez (1999) 20 Cal.4th 1, 11.) “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 facts’ findings,
the opinion of the reviewing court that the circumstances might also be reasonably
reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ ”
(People v. Bean (1988) 46 Cal.3d 919, 932-933.) We may reverse for lack of substantial


                                             50
evidence only if “ ‘upon no hypothesis whatever is there sufficient substantial evidence to
support’ ” the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
        To sustain a conviction for attempted murder, the evidence must demonstrate “the
specific intent to kill and the commission of a direct but ineffectual act toward
accomplishing the intended killing.” (People v. Lee (2003) 31 Cal.4th 613, 623; People
v. Chinchilla (1997) 52 Cal.App.4th 683, 690.) An intent to kill is usually not shown by
direct evidence; rather, such intent may be inferred from the defendant’s acts and the
underlying circumstances. (People v. Smith (2005) 37 Cal.4th 733, 741.) Rosa concedes
there is substantial evidence that she committed an assault and battery upon Eric, but
argues there is insufficient evidence that she meant to kill him. Mei joins in Rosa’s
argument, contending also that there is no substantial evidence that she intended to kill
Eric.
        The cases Rosa relies on, People v. Miller (1935) 2 Cal.2d 527 (Miller), and
People v. Belton (1980) 105 Cal.App.3d 376 (Belton), do not help her. In Miller, the
defendant had threatened to kill the victim, and walked toward him with a rifle, stopped
some 200 yards away and appeared to load the rifle but did not lift it as though taking
aim. The victim fled and the defendant was disarmed without incident. (2 Cal.2d at p.
529.) The issue presented on appeal was not whether there was sufficient evidence the
defendant had the specific intent to commit murder, but whether there was sufficient
evidence of a direct but ineffectual act done towards its commission. (Id. at pp. 529-
530.) The defendant’s act of walking toward the victim with a rifle was “mere
preparation,” as distinguished from an act in commencement of an attempt to kill, and
thus did not constitute an attempt to commit murder. (Id. at pp. 531-532.)
        The other case Rosa relies on, Belton, supra, 105 Cal.App.3d 376, addressed the
issue of intent to kill, but it is distinguishable. In Belton, twice in one night, the
defendant set fire to the apartment building his ex-wife lived in and owned. The evidence
showed that the defendant and his ex-wife had spent the day at her apartment in
“reasonable tranquility.” There was no animosity between them, no threats, and no talk
of arson. He was convicted of arson and attempted murder. (Id. at pp. 378-380.) On


                                               51
appeal, the court upheld the arson convictions but reversed the attempted murder
conviction because there was no evidence the defendant set the fires with the specific
intent to murder his ex-wife. To prove intent, the prosecution relied on a domestic
disturbance between the defendant and his ex-wife that occurred three months before the
fires, but she testified that there had been no other such incidents. The court found “any
deduction of murderous intent from a quarrel three months earlier [was] entirely
speculative and conjectural.” (Id. at p. 380.) The court held that an intent to kill must be
proved and could not be inferred from the fact of the arsons, just as an intent to kill could
not be inferred from the fact of any other crime. “Just as proof of assault with a deadly
weapon does not itself provide the basis for an inference of intent to murder, so proof of
arson of an inhabited building does not itself provide the basis for an inference of
attempted murder. More is needed to establish murderous intent, which cannot be
presumed solely from the commission of some other crime, but which must be
affirmatively proved by direct evidence or by solid inference.” (Id. at p. 381.)
       Here, there was more evidence of intent to kill than just the commission of assault
with a deadly weapon. First, there was substantial evidence of pre-existing animosity:
the contentious custody dispute, Rosa’s stated fear of Eric, her claims that he was
molesting Elizabeth, and the numerous computer searches at the Brentwood and Antioch
homes for poisons, methods of killing, how to get away with murder and the like. Rosa
went to Selma’s house that day armed to the teeth, and she and Mei attacked Eric with a
Taser and a baton, which was used both to beat him and to choke him. Eric testified that
he realized he was in a fight for his life, and agreed to give up Elizabeth because he did
not want to die. According to her own testimony, Rosa had already killed Selma that day
by use of a stun gun and a broom. This constitutes sufficient evidence from which the
jury reasonably could have inferred intent to kill and not merely an assault.
       Rosa and Mei argue that if they had wanted to kill Eric, they would have used
some of the more lethal weapons Rosa brought to the house and would not have
questioned Eric about giving up custody of Elizabeth. Mei also points out that she
stopped choking Eric with the baton when he agreed to give up Elizabeth. In effect, they


                                             52
argue that we should re-weigh the evidence and come to a different conclusion.
However, under the applicable standard of review, we are bound to view the evidence in
the light most favorable to the prosecution and to presume the existence of every fact the
jury could reasonably deduce from the evidence in support of the judgment. (People v.
Smith, supra, 37 Cal.4th at p. 742.) We conclude the evidence is sufficient to support
appellants’ convictions of the attempted murder of Eric.
   G. Ineffective Assistance Of Counsel
       Rosa contends she received ineffective assistance of counsel based on her trial
counsel’s failure to request that the court instruct, as to count two, the attempted murder
of Eric, on the lesser related offense of assault with a deadly weapon.
       To prevail on a claim of ineffective assistance of counsel, the burden is on the
defendant to show (1) counsel’s performance was deficient in that it fell below an
objective standard of reasonableness under prevailing professional norms, and (2) there is
a reasonable probability that, but for counsel’s unprofessional errors, the defendant would
have obtained a more favorable result, i.e., counsel’s deficient representation prejudiced
the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Gray
(2005) 37 Cal.4th 168, 206-207; People v. Lewis (1990) 50 Cal.3d 262, 288.) “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” (Strickland v. Washington, supra, 466 U.S. at p. 694.)
       As Rosa acknowledges, assault with a deadly weapon is not a lesser included
offense of attempted murder; rather, it is a lesser related offense. (People v. Nelson
(2011) 51 Cal.4th 198, 215.) A defendant has no unilateral entitlement to instruction on a
lesser related offense. (People v. Birks (1998) 19 Cal.4th 108, 136-137; People v. Kraft
(2000) 23 Cal.4th 978, 1064 [defendant has no right to instructions on a lesser related
offense (accessory after the fact as a lesser related offense to murder) even if he requests
them and the instructions would have been supported by the evidence].) An instruction
on an uncharged lesser related offense may only be given with the consent of the
prosecutor. (People v. Birks, supra, 19 Cal.4th at pp. 136-137.) Thus, even if reasonably
competent counsel would have requested an instruction on assault with a deadly weapon


                                             53
in this case, Rosa cannot make the required showing of prejudice without showing the
prosecutor would have agreed to it. (Strickland v. Washington, supra, 466 U.S. at p. 697
[“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be followed”].) She has
not made that showing. Accordingly, her claim of ineffective assistance fails. (Ibid.)
   H. Whether The Trial Court Erred In Failing To Respond To A Jury Question
       Next, Rosa contends the trial court failed to respond to a jury question during
deliberations in violation of her constitutional right to a fair trial.
       On June 27, 2011, the third day of deliberations, the jury submitted its fifth note to
the court requesting “clarification on if a Taser is legally considered a firearm or not.”
Both parties advise us that the record does not contain a response from the trial court to
this question. The parties also agree that section 1138 imposes a mandatory duty on the
trial court to clarify any instructional confusion expressed by the jury. Rosa contends the
absence of a response by the court violated her section 1138 rights (see, e.g., People v.
Beardslee (1991) 53 Cal.3d 68, 97) and, under the circumstances, likely caused the jury
to misapply the law in concluding that she was armed with a firearm during her
commission of the murder of Selma. (See Estelle v. McGuire (1991) 502 U.S. 62, 72 &
fn. 4.) On the other hand, the Attorney General contends the failure of trial counsel to
object waived any claim of error on appeal (People v. Thoi (1989) 213 Cal.App.3d 689,
698) and that a silent record does not establish error (People v. Goodloe (1964) 225
Cal.App.2d 686, 688-689; In re Salazar (1962) 205 Cal.App.2d 102, 105.)
       We have undertaken our own review of the record. The minutes for June 27,
2011, day forty-five of the jury trial, contain inter alia the following entries:
11:11 a.m.     (Not Reported) Jury submits Jury Request #5. Counsel is informed of the
               Juror’s [sic] question in Jury Request #5 and stipulate to it’s [sic] answer.
11:26 a.m.     (Not Reported) Answer to Jury Request #5 is sent to the Jury Deliberation
               room. The Court stands in recess to await the jury’s call.
Thus, the record contradicts Rosa’s assertion and demonstrates that the jury received a
response. There was no error.


                                               54
   I. Cumulative Error
       Finally, both Rosa and Mei contend that, even if no single error requires reversal,
the cumulative effect of the errors in this case requires reversal. (See Hill, supra, 17
Cal.4th at p. 844.) The “litmus test” for such a claim is “whether defendant received due
process and a fair trial.” (People v. Kronemyer (1987) 189 Cal.App.3d 314, 349,
disapproved on another ground in People v. Whitmer (2014) 59 Cal.4th 733, 742.)
“Accordingly, we review each allegation and assess the cumulative effect of any errors to
see if it is reasonably probable the jury would have reached a result more favorable to
defendant in their absence.” (Ibid.)
       Rosa relies on Hill, supra, 17 Cal.4th at page 845, in arguing that “the number of
‘legal errors raises the strong possibility the aggregate prejudicial effect of such errors
was greater than the sum of the prejudice of each error standing alone.’ ” However, we
have found no substantial error in any respect, and we reject Rosa’s cumulative error
argument. (See People v. Butler (2009) 46 Cal.4th 847, 885; Hill, supra, 17 Cal.4th at
pp. 844-845.)
       Mei contends “had it not been for the various instructional errors concerning [her]
culpability for Selma’s murder, it is unlikely that the jury would have found the 100
pound appellant guilty of the attempted premeditated murder of Eric.” With respect to
Mei’s appeal, we have found the instructional error related to count one was prejudicial
and reversal of that conviction is required. However, we have found no other errors, and
we now conclude Mei was not deprived of a fair trial on either or both of the other two
counts.
       In addition to her conviction for the murder of Selma, which we reverse, Mei was
also convicted of burglary and the attempted murder of Eric. Both of these convictions
were based on Mei’s own actions at Selma’s house, as opposed to the murder conviction,
which was based on Mei’s complicity in Rosa’s actions. The reversal is based on the
instructional error of failing to inform the jury that Mei’s culpability for felony murder on
an aiding and abetting theory required a finding that Mei was aiding and abetting Rosa at
the time Selma was killed. This instructional error had no bearing on Mei’s guilt or


                                              55
innocence of the attempted murder of Eric. The jury clearly rejected Mei’s position at
trial that she had no idea what Rosa was doing and went to Selma’s house that day with
no criminal intent. We find no reasonable probability that Mei would have achieved a
more favorable result as to counts two and three in the absence of the count one
instructional error. (See Veronese v. Lucasfilm Ltd. (2012) 212 Cal.App.4th 1, 32;
People v. Kronemyer, supra, 189 Cal.App.3d at p. 349.) We reject Mei’s claims that her
trial was fundamentally unfair and her convictions a miscarriage of justice.
                                    IV. DISPOSITION
       Mei’s conviction for first degree murder is reversed, and the matter is remanded
for further proceedings consistent with this opinion. In all other respects, the judgments
are affirmed.




                                            56
                   STEWART, J.



We concur.




KLINE, P.J.




RICHMAN, J.




              57
