Filed 8/31/17 P. v. Valladares CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, James A. Stotler, Judge. Affirmed.

Fay Arfa, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Leobardo Valladares of premediated and deliberate first degree murder (Pen. Code, § 187, subd. (a); all statutory citations are to the Penal Code), and found he personally discharged a firearm causing death (§ 12022.53, subd. (d)). Valladares challenges the sufficiency of the evidence to support his first degree murder conviction. He also contends the trial court erred by instructing the jury with CALCRIM Nos. 3472 and 3474, erred by failing to provide a unanimity instruction, erred by refusing to allow the jury to test fire the firearm, and the cumulative effect of the errors rendered his trial unfair. We conclude these contentions lack merit and therefore affirm the judgment.

I

Factual and Procedural Background

On the evening of September 14, 2013, Maria Huerta arranged to meet her friend Valladares at a Stanton bar where they met weekly to drink and listen to music. Valladares, a regular patron of the bar, was friendly and respected by the waitresses and other staff.

When Huerta arrived, Valladares stood in front of the bar talking to friends. After about 30 minutes, Huerta and Valladares walked inside. They each consumed six beers over the next two hours. Huerta did not feel intoxicated or “buzzed,” and Valladares did not appear intoxicated.

According to Huerta, around the 2:00 a.m. closing time, a waitress who knew Valladares complained to him that Francisco Torres was being rude and disrespectful to her. The waitress, Azucena Mendoza, testified she knew Vallardares as a regular of the bar. At some point during the evening, she was walking and holding beer bottles when Torres, who had been sitting at the bar, got up, grabbed her elbow or bicep, and asked her to bring him a beer. When he pulled on her arm, she thought he was going to fall. He also wanted her to sit and have a drink with him. Mendoza declined to get Torres another beer because he was drunk. He insulted her, called her names, and said she was a “whore.” A security guard intervened and Mendoza walked over to Valladares’s table to calm down. She told Valladares, who did not appear intoxicated, what happened, pointed Torres out and described how Torres had frightened and insulted her.

A few minutes later, Huerta, Valladares, Mendoza and another waitress exited the bar, where they spoke for about a minute. At some point, Valladares said he was going to talk to Torres about disrespecting Mendoza. Mendoza, who returned to the bar, may have told him not to do it, and not to get involved. Huerta and Valladares remained outside chatting with others who emerged, and smoking cigarettes.

Huerta testified when Torres exited the bar, Valladares told Huerta, “wait for me here. I’m going to go talk to him.” Valladares did not seem agitated. Torres walked out of the bar alone and down the sidewalk in front of an adjacent laundromat. Valladares followed Torres.

When Valladares caught up to Torres the men began arguing. Torres shoved Valladares against a glass window and Valladares fell to the ground. Valladares got up after Torres shoved him, and attempted to shove Torres back, but Torres moved out of the way. Torres approached Valladares in a fighting or defensive stance. Valladares then pulled out a gun from his belt area, pointed it at Torres’s face, and fired from about 12 inches away. Torres fell down lying face up. Valladares shot Torres in the chest, put the gun in his waistband, and took off running.

Huerta testified she heard only one shot, but told a police officer a day after the incident she thought she heard two shots. She saw Valladares’s hand shake or “pull back” twice. The second time was within a split second of the first; there was no “pause in between seeing his hand shake the first time and the second time.” Huerta described the gun as a “gold, brown” revolver.

Surveillance video showed Valladares and Huerta standing by the door around 1:50 a.m., chatting, smoking, and interacting with various people who emerged from the bar. Valladares moved over to a planter area and continued to smoke and conversed with various men. At about 1:54 a.m., Valladares walked over to the bar door as Torres emerged. Valladares followed Torres as he walked north along the sidewalk abutting the bar and other businesses in the strip mall. The men conversed or argued for about 20 seconds, during which Valladares gestured back toward the bar. Suddenly, Torres punched or shoved Valladares, who stumbled backward and out of the frame. Torres approached Valladares with his hands raised in a fighting position. Valladares regained his footing and the men threw a few punches at each other as Valladares danced around. Although the video does not clearly show this part of the incident, Valladares removed his gun and shot Torres, who fell on his back with his head hanging off the curb. Valladares walked quickly away after the shooting, followed by Huerta.

The evidence established Valladares fired two rounds, one striking Torres in the left eye, and another striking him in the middle right side of the chest. The injury to the eye had stippling, or unburned gunpowder, around the entry point, suggesting the gun had been fired at close range. Both wounds were fatal, and Torres bled to death. Less than nine seconds had elapsed since Torres punched or shoved Valladares. Investigators found no weapons on or around Torres’s body, and Torres did not have cuts or bruises on his hands. Torres’s blood alcohol content registered at 0.20 percent.

Samuel Carcamo, who knew Valladares from the bar, testified Valladares pulled out the gun, pointed it at Torres’s forehead, and fired. Torres went down. Valladares started to walk away, but then “took a step back, and . . . shot [Torres] again,” this time in the stomach.

Investigators found Valladares’s broken cell phone on the ground near Torres’s body. Four days after the shooting, deputies arrested Valladares at a relative’s home. Interviewed at the sheriff’s department, Valladares denied having a gun or shooting Torres, even after investigators showed him surveillance video and told him witnesses identified him as the shooter. He explained he walked toward some people near the video store when he saw people arguing. A man he did not know said “what” to him, and he replied, “what’s up?” The man struck him, causing him to hit the window and fall down, dropping his cell phone. He denied seeing the person previously in the bar. “Somebody fired,” a gun, but he did not know who, and he saw someone “laying there.” He walked to a friend’s home because he did not want problems with the police, as he previously had been deported. Valladares claimed he had six beers before he arrived at the bar, two more at the bar, and was “a little drunk.”

Following a trial in July 2015, the jury convicted Valladares as noted above. In September 2015, the court imposed a prison sentence of 50 years to life, comprised of a term of 25 years to life for first degree murder, and a consecutive term of 25 years to life for personally discharging a firearm causing death.

II

Discussion

A. Substantial Evidence Supports the Jury’s Verdict of First Degree Premeditated Deliberate Murder

Valladares contends the judgment should be modified to reflect a conviction for second degree murder rather than first degree murder because insufficient evidence supported the jury’s conclusion defendant acted with premeditation and deliberation. Because the evidence showed that Torres threw the first punch in a spontaneous fistfight, knocking Valladares to the ground, and again approached Valladares to resume his assault, Valladares contends the prosecution failed to prove he premeditated and deliberated the murder. We conclude the evidence as a whole supports the jury’s verdict.

On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence – that is, evidence that is reasonable, credible, and of solid value – from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; see also Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) The test is whether substantial evidence supports the trier of fact’s conclusion, not whether the appellate court would make the same determination. (People v. Crittenden (1994) 9 Cal.4th 83, 139.) Because an appellate court must “give due deference to the trier of fact and not retry the case ourselves,” an appellant challenging the sufficiency of the evidence “bears an enormous burden.” (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.)

Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) Murder that is “willful, deliberate, and premeditated . . . is murder of the first degree. All other kinds of murders are of the second degree.” (§ 189.) By dividing the offense of murder into two degrees, the Legislature attached greater moral culpability for deliberate and preconceived murders. (People v. Bender (1945) 27 Cal.2d 164, 181 (Bender) [Legislature intended to “distinguish between deliberate acts and hasty or impetuous acts”] overruled on other grounds in People v. Lasko (2000) 23 Cal.4th 101, 110; People v. Holt (1944) 25 Cal.2d 59, 90-91.)

Premeditation “encompasses the idea that a defendant thought about or considered the act beforehand.” (People v. Pearson (2013) 56 Cal.4th 393, 443.) Deliberation “‘“refers to careful weighing of considerations in forming a course of action.”’” (Ibid.) “The word ‘deliberate’ is an antonym of ‘Hasty, impetuous, rash, impulsive’ [citation] and no act or intent can truly be said to be ‘premeditated’ unless it has been the subject of actual deliberation or forethought.” (People v. Thomas (1945) 25 Cal.2d 880, 901.) To find a person guilty of deliberate premeditated murder the evidence must show the defendant’s acts were the result of careful thought and weighing of considerations rather than an unconsidered or rash impulse. (People v. Banks (2014) 59 Cal.4th 1113, 1153, overruled on other grounds in People v. Scott (2015) 64 Cal.4th 363, 391, fn. 3.) The Legislature applied the “common, well-known dictionary meaning” to the words “‘deliberate’” and “‘premeditate.’” (Bender, supra, 27 Cal.2d at p. 183.) Accordingly, the court explained “[t]he adjective ‘deliberate’ means ‘formed, arrived at, or determined upon as a result of careful thought and weighing of considerations; as a deliberate judgment or plan; carried on coolly and steadily, esp. according to a preconceived design; . . . Given to weighing facts and arguments with a view to a choice or decision; careful in considering the consequences of a step; . . . unhurried; . . . Characterized by reflection; dispassionate; not rash.’” (Ibid.)

The time taken to deliberate on a plan or course of action varies among individuals. The focus, however, is on “‘the extent of the reflection,’” not the time it took before deciding to act. (People v. Solomon (2010) 49 Cal.4th 792, 813.) “‘“‘“‘Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.’”’”’” (People v. Mendoza (2011) 52 Cal.4th 1056, 1069.) Juries must determine whether a defendant premeditated and deliberated in “the interval between the fully formulated intent and its execution.” (Bender, supra, at p. 182.) To prove a defendant premeditated and deliberated the consequences of his action, there must be “substantially more reflection than may be involved in the mere formation of a specific intent to kill.” (People v. Thomas, supra, 25 Cal.2d at p. 900, italics added.)

As explained in People v. Anderson (1968) 70 Cal.2d 15 (Anderson), “Given the presumption that an unjustified killing of a human being constitutes murder of the second, rather than of the first, degree, and the clear legislative intention to differentiate between first and second degree murder, [a reviewing court] must determine in any case of circumstantial evidence whether the proof is such as will furnish a reasonable foundation for an inference of premeditation and deliberation [citation], or whether it ‘leaves only to conjecture and surmise the conclusion that defendant either arrived at or carried out the intention to kill as the result of a concurrence of deliberation and premeditation.’” (Id. at p. 25.)

Anderson addressed this problem by providing guidelines for the type of evidence which would sustain a finding of premeditation and deliberation, noting the evidence “falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing – what may be characterized as ‘planning’ activity; (2) facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a ‘motive’ to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of ‘a pre-existing reflection’ and ‘careful thought and weighing of considerations’ rather than ‘mere unconsidered or rash impulse hastily executed’ [citation]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a ‘preconceived design’ to take his victim’s life in a particular way for a ‘reason’ which the jury can reasonably infer from facts of type (1) or (2). [¶] Analysis of the cases will show that this court sustains verdicts of first degree murder typically when there is evidence of all three types and otherwise requires at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3).” (Anderson, supra, 70 Cal.2d at pp. 26-27.)

Here, sufficient evidence supports Valladares’s first degree murder conviction. The jury reasonably could conclude Valladares’s motive in killing Torres was retribution for his earlier misbehavior toward the waitress, who was Valladares’s friend. The record also supports an inference Valladares acted to uphold his reputation in the bar as a respected person who could solve problems and vindicate slights. When Torres struck defendant and knocked him to the ground outside the bar, the jury reasonably could conclude Valladares was motivated to shoot Torres to address or remedy the damage to his reputation if he were to lose this fight. Consequently, he shot Torres in the head and as the prosecutor argued, “turned back to finish the job” by shooting Torres in the chest to avenge Torres’s disrespectful and rude conduct to him and to those in the bar.

The record also contains planning evidence. Valladares waited outside the bar with a loaded revolver concealed in his waistband and followed Torres to confront him about his conduct inside the bar. He would have known this might provoke an argument with the intoxicated Torres, and lead to a violent confrontation. But he prepared himself to respond with deadly force. As the prosecutor argued, Valladares “chased [Torres] down knowing he had a revolver in his waistband.” The jury could conclude Valladares planned a murder by concealing the gun and intending to use it if he was losing the fight.

The evidence also showed the manner of the killing was particular and exacting, which supports a finding Valladares had planned the killing. As noted, Valladares fired once into Torres’s left eye, and then into the victim’s chest as he lay on the ground. The jury reasonably could conclude Valladares carried out the killing coolly and steadily, with cold, calculated judgment akin to an execution-style murder. (See People v. Hawkins (1995) 10 Cal.4th 920, 956-957 [evidence showed victim kneeling or crouching when the defendant fired two shots to the victim’s head from a distance of three to 12 inches], overruled on other grounds in People v. Lasko (2000) 23 Cal.th 101, 110.) The exacting nature of the killing supports the jury’s finding Valladares considered the consequences of his actions either before he confronted Torres or during the argument. We therefore reject Valladares’s challenge to the sufficiency of the evidence for first degree murder.

B. The Trial Court Properly Instructed the Jury

Valladares argues the trial court erred and violated his right to due process by instructing with CALCRIM Nos. 3472 and 3474. CALCRIM No. 3472 provided: “A person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force.” CALCRIM No. 3474 provided: “The right to use force in self-defense continues only as long as the danger exists or reasonably appears to exist. When the attacker no longer appears capable of inflicting any injury, then the right to use force ends.”

Valladares asserts the evidence failed to support the instructions because he did not provoke a fight or quarrel with the intent to create an excuse to use force. He also asserts CALCRIM No. 3472 applies to someone who starts a physical attack and not someone who starts a verbal argument. He further argues the evidence “failed to justify CALCRIM No. 3474 because the danger from Torres never [dissipated]. Valladares’ right of self-defense continued during both shots, not just the first shot as the prosecutor argued.”[1]

We discern no error. The jury instructions at issue were correct statements of the law, and substantial evidence supported giving them. (People v. Breverman (1998) 19 Cal.4th 142, 154 [the trial court must instruct sua sponte on the general principles of law relevant to the issues raised by the evidence].) Valladares followed Torres with a concealed loaded revolver and the evidence supported the inference he did so to provoke an argument with him. If the jury found he contrived a verbal argument (a “quarrel”) with the intent to provoke Torres to use force, so that he could then shoot him, the jury properly could find he did not have the right to self-defense. (People v. Hecker (1895) 109 Cal. 451, 462 [self-defense is not available where the defendant seeks a quarrel “with the design to force a deadly issue and thus, through his fraud, contrivance, or fault, to create a real or apparent necessity for killing”]; cf. People v. Ramirez (2015) 233 Cal.App.4th 940, 943 (Ramirez) [person who contrives to start a fistfight or provoke a nondeadly quarrel does not forfeit his right to live and may defend himself when his opponent escalates the conflict to deadly force].)

Here, unlike in Ramirez, where the defendant testified he saw the victim draw a gun, no evidence suggested Torres resorted to lethal force. Consequently, the trial court had no sua sponte duty to modify the instruction accordingly. (Bench Note to CALCRIM No. 3472 (2017 ed.) p. 987 [“This instruction may require modification in the rare case in which a defendant intends to provoke only non-deadly confrontation and the victim responds with deadly force”], italics added.) When the victim does not respond, or appear to respond, with unjustified deadly force, CALCRIM No. 3472 accurately states the law and requires no modification. (People v. Eulian (2016) 247 Cal.App.4th 1324, 1334.) If Valldares desired further clarifying or pinpoint instructions, it was his duty to request them. (People v. Hart (1999) 20 Cal.4th 546, 622.)

Assuming the jury found Valladares initially acted in self-defense, CALCRIM No. 3474 allowed the jury to determine whether Valladares could continue to defend himself because Torres still posed a deadly threat to him. As the trial court noted, the jury was entitled to determine whether Torres was still alive and “disabled” after the first shot, and whether any danger from Torres no longer existed. Finally, the instructions did not negate a self-defense theory. The court instructed on justifiable homicide: self-defense (CALCRIM No. 505), provocation: effect on degree of murder (CALCRIM No. 522); voluntary manslaughter: heat of passion – lesser included offense (CALCRIM No. 570), and voluntary manslaughter: imperfect self-defense – lesser included offense (CALCRIM No. 571). Nothing in CALCRIM Nos. 3472 and 3474 precluded the jury from finding Valladares had an honest but unreasonable belief in the need for self-defense. Nor did the instructions prevent the jury from finding defendant acted with adequate provocation or returning a voluntary manslaughter verdict.

C. Unanimity Instruction

The evidence demonstrated Valladares fired two shots in rapid succession. Both wounds were fatal and the coroner could not determine which shot occurred first. Valladares asserts the jury could have found Torres already was dead when Valladares fired the second shot, and could have found he did not premeditate and deliberate Torres’s murder when he fired the first shot, but did when he fired the second shot. He contends the trial court should have provided a unanimity instruction “to insure the jury unanimously decided which shot killed Torres.” (See CALCRIM No. 3500 [“The defendant is charged with [] . The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed.”].)

“Where the accusatory pleading charges a single criminal offense and the evidence shows more than one such unlawful act [which may have constituted the offense] was committed, [then] either the prosecution must elect the specific act relied upon to prove the charge or the jury must be instructed . . . that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act.” (People v. Martinez (1988) 197 Cal.App.3d 767, 772; People v. Diedrich (1982) 31 Cal.3d 263, 281 [purpose of unanimity instruction is to require agreement among the jurors as to the act or acts which would support a conviction for the charged offense]; People v. Deletto (1983) 147 Cal.App.3d 458, 471-472 [possibility of disagreement exists where the defendant is accused of a number of unrelated incidents leaving the jurors free to believe different parts of the testimony and yet convict the defendant].) The trial court must give a unanimity instruction sua sponte where the facts require it. (People v. Davis (2005) 36 Cal.4th 510, 561.)

The “‘continuous conduct exception’” is a limited exception to the unanimity requirement. “[N]o unanimity instruction is required when the acts alleged are so closely connected as to form part of one continuing transaction or course of criminal conduct. ‘The “continuous conduct” rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them.’ [Citations.]” (People v. Dieguez (2001) 89 Cal.App.4th 266, 275.) In other words, where there is no evidence from which the jury could have found the defendant guilty of one act, but not the other, such as where different defenses are asserted as to each, there is no danger that different jurors would find the defendant guilty of different acts. (People v. Riel (2000) 22 Cal.4th 1153, 1199 (Riel).)

Here, there is no basis to distinguish between Valladares’s two gunshots. Valladares’s acts in firing two successive shots were substantially identical in nature. Under these circumstances, there simply is no danger that different jurors would find Valladares guilty of different acts. “‘[W]here the acts were substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place, the instruction is not necessary to the jury’s understanding of the case.’” (People v. Beardslee (1991) 53 Cal.3d 68, 93.)

The jury rejected the only defense (self-defense) offered. (See People v. Stankewitz (1990) 51 Cal.3d 72, 100 [unanimity instruction not required where defendant offers essentially same defense to each act and no reasonable basis for jury to distinguish between them].) Valladares did not proceed on the theory he fired the second shot into a dead body, and thus could only have been guilty of murder if he premeditated and deliberated the first shot. Regardless, any conceivable error was harmless. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) The jury unanimously agreed Valladares intended to kill Torres and acted with premeditation and deliberation. There was no reasonable possibility a juror would have found Valladares did not premeditate and deliberate by firing the first shot but that he did so during the second shot.

D. Refusal to Allow Jury to Test Revolver

During closing argument, the prosecutor emphasized Valladares took a loaded revolver with him when he went to the bar and invited the jury to “feel the weight of this firearm.” She also noted, referring to expert testimony, that “to pull the trigger [in double action mode] you have to actually apply eight and a half to nine pounds to get that gun to fire.” She noted the expert tested the gun to make sure it would not go off accidentally, and that “everything about this tells you this was not an accident. It was a deliberate point and pull both times.”

During deliberations, the jury sent a note to the court asking to “dry-fire the pistol to feel actual trigger pressure?” The prosecutor had no objection but thought “we could be getting close to an experiment.” Defense counsel objected: “It seems to me that it is an experiment as far as the pounds of pressure it takes to fire the weapon. And it seems like they just want to conduct their own experiment.” Defense counsel even “object[ed] to them holding the gun. I mean it’s put in evidence. They can look at the gun. . . . But as far as the weight of the gun, test-firing, dry test firing the gun, I think that all goes to . . . conducting experiments on that gun as far as the weight and amount of pressure it takes to pull that trigger.”

The trial court declined to allow the jury to dry fire the revolver. The court primarily relied on defendant’s objection, and also noted “I can see some problems with allowing this. Let’s assume for instance they find just by the pulling of the trigger that the pressure does not seem to comport with what the witness said, then all of a sudden we’re into speculation because we don’t have any . . . weighing device.” The court declined to prohibit the jury from touching or holding the gun. The court answered the jury’s question: “No. Per CALCRIM 201, ‘Do not conduct any tests or experiments.’ You may handle the firearm but you may not dry-fire it.” The court also allowed the bailiff to remove the gun lock, which was not on the revolver when it was presented in court.

“[J]urors may, as a body, ‘engage in experiments which amount to no more than a careful evaluation of the evidence which was presented at trial.’ . . . [¶] The distinction usually turns on whether the juror’s investigation stayed within the parameters of admitted evidence or created new evidence, which the injured party had no opportunity to rebut or question. . . . ‘Not every jury experiment constitutes misconduct. Improper experiments are those that allow the jury to discover new evidence by delving into areas not examined during trial. The distinction between proper and improper jury conduct turns on this difference. The jury may weigh and evaluate the evidence it has received. It is entitled to scrutinize that evidence, subjecting it to careful consideration by testing all reasonable inferences. It may reexamine the evidence in a slightly different context as long as that evaluation is within the ‘“scope and purview of the evidence.”’ [Citation.] What the jury cannot do is conduct a new investigation going beyond the evidence admitted.’ [Citation.]” (People v. Vigil (2011) 191 Cal.App.4th 1474, 1484].)

Cases finding no misconduct include those where jurors employed their own reasoning skills in a demonstrative manner or performed tests in the jury room that were confined to the evidence admitted at trial. (See People v. Collins (2010) 49 Cal.4th 175, 250-252 [no misconduct when jurors used string and a protractor to reenact various alternative positions of victim and defendant according to the evidence and drew a scaled diagram based on the evidence for use in deliberations]; People v. Bogle (1995) 41 Cal.App.4th 770, 778 [jurors used keys to open a safe, both items admitted into evidence, not misconduct].)

The trial court properly could have allowed the jury to dry fire the revolver to feel the trigger weight. The gun was admitted in evidence, and nothing suggests the weapon was in a substantially different condition at the time of trial than it was at the time the expert tested it. But the court did not abuse its discretion in prohibiting the test. Most significantly, the defense objected to the testing, presumably for tactical reasons. Valladares therefore forfeited or invited any error. Finally, any conceivable error was not prejudicial because the defense did not claim Valladares fired accidentally, and there was no evidence he did.

E. Cumulative Error

Valladares argues multiple errors combined to violate his due process right to a fair trial. (See People v. Hill (1998) 17 Cal.4th 800, 844-845 [multiple trial errors independently harmless may in combination create reversible error].) As explained above, we have found no error. The cumulative error doctrine therefore does not apply.

III

Disposition

The judgment is affirmed.

ARONSON, J.

WE CONCUR:

O’LEARY, P. J.

THOMPSON, J.