People v. Soy CA2/2 ( 2015 )


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  • Filed 9/14/15 P. v. Soy CA2/2
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
    or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION TWO
    THE PEOPLE,                                                          B253692
    Plaintiff and Respondent,                                   (Los Angeles County
    Super. Ct. No. NA074870)
    v.
    KIRIVUDY SOY et al.,
    Defendants and Appellants.
    APPEALS from judgments of the Superior Court of Los Angeles County.
    Gary J. Ferrari, Judge. Affirmed.
    Donna L. Harris, under appointment by the Court of Appeal, for Defendant and
    Appellant Kirivudy Soy.
    J. Kahn, under appointment by the Court of Appeal, for Defendant and Appellant
    Kirivuthy Soy.
    Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant Attorney
    General, Lance E. Winters, Assistant Attorney General, Stephani A. Miyoshi and
    William N. Frank, Deputy Attorneys General, for Plaintiff and Respondent.
    ___________________________________________________
    A jury convicted defendants Kirivudy Soy and Kirivuthy Soy of the second degree
    murder of Dara Ork.1 (Pen. Code, § 187, subd. (a).)2 The jury found that D. Soy
    personally used a deadly weapon, a knife, in the commission of the murder. (§ 12022,
    subd. (b)(1).) The jury found that T. Soy personally and intentionally used a firearm in
    the commission of the murder. (§ 12022.53, subd. (b).)
    The trial court sentenced D. Soy to life with a minimum of 15 years with a
    consecutive year for the use of a knife. The court sentenced T. Soy to life with a
    minimum of 15 years and an additional 10 years for use of a handgun.
    D. Soy appeals on the grounds that: (1) the trial court’s denial of the motion to
    disclose juror information was an abuse of discretion; and (2) the trial court’s erroneous
    denial of the new trial motion based on its finding that the prosecutor did not commit
    misconduct was a denial of his rights to due process, a fair trial, and a fair determination
    of guilt.
    T. Soy appeals on the grounds that: (1) there was insufficient evidence to support
    his conviction; (2) the prosecutor committed prejudicial misconduct that caused the
    deadlocked jury to convict him; (3) his trial counsel was ineffective for not objecting to
    the prosecutor’s misconduct; (4) the trial court improperly curtailed defense counsel’s
    supplemental closing argument; (5) the denial of counsel’s motion for new trial
    comprised an abuse of discretion; (6) the matter should be remanded with directions to
    reconsider the motion for disclosure of the jurors’ identifying information; (7) there was
    insufficient evidence to support the true finding on the firearm enhancement; and (8)
    cumulative error compels reversal.
    1      All further references to Kirivudy Soy will state “D. Soy,” and all further
    references to Kirivuthy Soy will state “T. Soy,” as was the practice at trial and in the
    appellate briefs.
    2      All further references to statutes are to the Penal Code unless stated otherwise.
    2
    FACTS
    Prosecution Evidence
    On the night of July 1, 2007, four young men and one young woman of
    Cambodian descent were in a Long Beach alley “hanging out” and drinking. The alley
    ran between 16th Street and 17 Street. The group included Tha Teng (the female),
    Sopheap Tuoth, Sean Ny, and Dara Ork. None of them had any weapons on them. At
    one point, D. Soy, who was known as “Coke Face,” walked into the alley from 17th
    Street and passed the group. Teng hit him in the face as he walked by. D. Soy just kept
    walking toward 16th Street, and Teng followed him, trying unsuccessfully to hit him
    again. Tuoth and the other two men followed Teng in an effort to bring her back and
    calm her down. When all of them reached 16th Street, they turned left toward Alamitos
    Avenue. Tuoth managed to take Teng back to the alley to the same spot where they had
    been hanging out, but Ork and Ny did not come with them. When Ork and Ny returned,
    they were “amped up.” They said they got into a fight with D. Soy. Ork said that D. Soy
    threatened to come back with a weapon.
    About 10 to 20 minutes later, a two-door white car driven by T. Soy, D. Soy’s
    identical twin, entered the alley from 16th Street.3 The white car stopped near the group,
    and D. Soy and T. Soy, as well as a third person, jumped out of the car. T. Soy was the
    driver. D. Soy got out on the passenger side. Tuoth said he did not recognize the third
    person in the car. He was a male Asian with long hair, and he got out on the passenger
    side also. Tuoth had seen the Soy brothers before and recognized them “when [he] saw
    them.” Tuoth saw T. Soy point a gun at Ny’s chest. He also saw D. Soy run up to Teng,
    hit her, and knock her to the ground. D. Soy then ran over to Ork and began to fight with
    him. It looked like “just fist fighting.” T. Soy continued to point his gun at Ny. The
    struggle between D. Soy and Ork “was over real quick.” All three of the men who came
    in the white car jumped back in and took off through the alley towards 17th Street.
    3     Tuoth believed the white car pulled up 10 minutes after the initial incident with
    D. Soy, but Teng thought the time interval was 20 minutes.
    3
    Tuoth ran over to Ork and tried to pick him up. He felt that Ork was wet with
    something warm, and Tuoth screamed to call 911. Teng rushed over and saw that Ork
    was breathing “really hard” and sounded as if it was difficult for him to breathe. Teng
    called 911 from her cell phone.
    Long Beach Police Officer Rogelio Trias responded to a 10:44 p.m. dispatch
    regarding a possible subject down from a gunshot at 17 Street and Alamitos Avenue. He
    and his partner were directed to an incident in the alley at the rear, and they arrived at that
    location in less than a minute. They found the victim lying on the ground, soaked in
    blood. The paramedics followed them into the alley and treated the victim. Ork died of
    multiple stab wounds (eight wounds) within several minutes due to loss of blood and
    inability to breathe.
    Tuoth, Teng, and Ny were separated by police to be interviewed. Teng had
    suffered an injury to her knee, a contusion to her right eyebrow and a bruise on her right
    shoulder. Tuoth told Officer Trias he had never seen the men in the car before. Tuoth
    was very upset. Later, at the police station, Tuoth and Teng identified the Soy brothers to
    Detective Mendoza as the driver and passenger of the white car. They also identified
    photographs of the brothers from photographic lineups.
    Police obtained warrants for the arrest of the Soy brothers, but they had
    disappeared. A deputy sheriff located and detained appellant T. Soy in January 2009 in
    Compton. T. Soy told the deputy he had a pistol and three magazines under an air
    mattress and the deputy retrieved them. In May 2010, Los Angeles police arrested
    appellant D. Soy in the city of Eagle Rock. He gave the name “Davy Soy.”
    Police spoke with Kelly San, the twins’ mother. She listed the phone number 714-
    209-3126 in her cell phone under the name “Vuthy.” Raymond McDonald, a T-Mobile
    employee, explained to the jury how cell phones seek out a signal from a cell phone
    tower. On the night of the stabbing, calls involving 714-209-3126 were made at 10:39
    (from 562-599-1128, T. and D.’s father’s home), 10:40 (from 562-591-6348, D.’s friend
    Brown’s phone), and 10:42 p.m. (from 562-591-6348). These calls pinged off a tower at
    1430 East Anaheim in Long Beach. A fourth call occurred at 10:44 p.m. (from 562-599-
    4
    1128), bouncing off a tower at 306 East Pacific Coast Highway. These two towers were
    the closest towers to the stabbing scene. A fifth call at approximately 10:50 p.m. (from
    562-508-7179) bounced off a tower at 200½ 27th Street. All of these calls were
    consistent with the cell phone traveling northbound and they were all incoming to
    number 714-209-3126.
    Defense Evidence
    I. T. Soy’s Testimony
    T. Soy testified that he lived at his father’s home at 2029 Orange Avenue in Long
    Beach in July 2001, although he spent a lot of time at his girlfriend’s house in the San
    Fernando Valley. His mother lived about a mile away from his father, on 16th Street, and
    he had not lived with her since 2001. He worked as a security guard with an open carry
    firearms permit, which he received in 2002 or 2004.
    Tuoth and Teng sometimes saw him getting in or getting out of his car to go to
    work because his car was parked on 16th Street. They sometimes yelled, “Hey, rent-a-
    cop.” He had heard Ny and Ork were Asian Boys gang members. He was afraid of Ny.
    T. Soy knew Terry Teng, Tha Teng’s younger brother. T. Soy introduced his brother and
    Terry Teng to his supervisor at work in order for them to get jobs.
    At the time of the stabbing, he was driving a white Acura RSX. On July 1, 2007,
    he went to his father’s home on Orange Avenue with his girlfriend. He left to buy
    cigarettes and received en route a call from his older brother Davy. Davy told him to get
    some liquor. T. Soy did not remember Davy calling to tell him about D. Soy being
    beaten.
    On his way to find liquor on Martin Luther King Boulevard, T. Soy received a call
    from a man in the alley named Brown, who was a friend of D. Soy. Brown said, “Your
    brother was jumped.” He drove toward the alley and stopped in front of Brown’s house
    at 1165 East 16th Street. He spoke to him on the street. T. Soy then drove through the
    alley from 16th Street to 17th Street and turned right on 17th Street, made a right on
    Alamitos Avenue, and another on 16th Street in search of D. Soy. He then passed by his
    mother’s home, saw it was dark, and drove back to his father’s home. He stayed there
    5
    five or six minutes. D. Soy was there. T. Soy spoke with D. Soy and other people.
    D. Soy was badly hurt and disfigured. That was the first time T. Soy saw D. Soy that
    night. D. Soy told T. Soy that he had been “jumped.” D. Soy did not identify his
    assailants, but T. Soy understood that they were the “usual guys that kick it in the alley
    over there near [his] mom’s house,” such as Teng and Tuoth. T. Soy left so that no one
    would come after him, thinking he was his twin. He thought the people who jumped
    D. Soy might be looking for him. T. Soy went with his girlfriend to the Pechanga casino,
    and then to her house. He stayed away because he did not want to get mistaken for his
    brother. He heard the police were looking for him, but was not sure he was not being
    mistaken for D. Soy. He did not try to clear his name because he did not do anything.
    Also, the Asian Boys gang has threatened him more than once, including while in
    custody.
    He did not have his firearm with him the night of the stabbing. He did not threaten
    Ny with a gun. He saw none of the individuals involved when he drove through the
    alley. The gun he pointed out to the deputy under the air mattress was disassembled for
    safety.
    T. Soy admitted that in 2000, he was placed on probation for possessing a firearm
    on school grounds. He denied telling a detective that he was a gang member. He said a
    police officer labeled him a street gang member, stamped it on his paperwork, and made
    up a nickname for him, “Soy Boy.” T. Soy acknowledged that in 2005 he was arrested
    for assaulting his brother, Dara Soy, at his father’s home on Orange Avenue. T. Soy
    admitted he had a gun and three loaded magazines in his car when he was arrested for
    this assault in 2005. He testified it was his work gun, and he was staying in his car at the
    time. He denied that he or D. Soy were members of, or associates of, the Suicidals
    gang—a gang that is an ally of the Asian Boys gang.
    At some point around November 2008, he heard from a man named Ken who used
    to be with the City Attorney’s Office and who knew his mother. T. Soy talked to Ken
    about surrendering in the company of a councilman. An attorney with whom T. Soy
    spoke advised him not to turn himself in yet.
    6
    II. D. Soy’s Testimony
    D. Soy testified that on July 1, 2007, he was walking home from a friend’s house.
    As he walked through the alley, he encountered the “usual people” who drank and used
    drugs in the alley. He identified them as Teng, Tuoth, Ny, and Ork. Ny, Tuoth, Teng,
    and Ork were “drunk.” He knew Ny was in the Asian Boys gang. He greeted Ny when
    he saw him. Teng was behind Ork and Tuoth.
    Ork and Ny spoke to D. Soy. Teng walked up to him and, without saying a word,
    struck him in the back of his head. D. Soy asked why Teng had hit him. Teng said,
    “Because I don’t like you, Nigger.” Teng hit him five or six times and he tried to get
    away from her. He began walking backwards toward 16th Street. He did not know at
    what time this was. Teng kept hitting him in the face, and she took off her top shirt as if
    to beat him up. D. Soy tried to block her blows. Ny, Ork, and Tuoth followed Teng. Ny
    was encouraging Teng to hit D. Soy, and Ork was laughing. Tuoth unsuccessfully tried
    to restrain Teng. The three pursued D. Soy all the way to the corner of 16th Street and
    Alamitos Avenue. D. Soy moved toward the corner of 16th Street and Alamitos to avoid
    bringing the “drama” to his home. Teng’s pursuit lasted four or five minutes.
    At the corner, D. Soy said, “Why the bitch hit me for—hitting me for?” Ork or Ny
    replied, “Why do you call the home girl a bitch? Don’t call the home girl a bitch.” Ny
    and Ork “swung at [him] and started jumping [him] there.” Ork kneed D. Soy in the
    groin. The beating lasted four or five minutes while D. Soy yelled to attract attention.
    He did not fight back.
    D. Soy “got out” and started running towards a neighbor’s house. Ork and Ny
    followed behind D. Soy. D. Soy saw an old Cambodian man and asked him to call the
    police, but the man just asked why they were fighting. D. Soy ran west down the man’s
    driveway. Ork continued to follow him but Ny stopped. D. Soy hopped over a fence and
    ran toward Brown’s house in the alley between 16th and 17th Streets. At the beginning
    of the alley on the 16th Street side, he was intercepted by Ny. Ny “blindsided” him and
    knocked him to the ground at the entrance of the alley. Ny began to kick D. Soy in the
    stomach, and D. Soy “shitted [him]self” because he was scared. D. Soy attempted to
    7
    crawl to Brown’s house, but Ny put him in a chokehold. Ny then pulled D. Soy up to his
    feet by his neck and dragged him to the spot in the middle of the alleyway where Teng
    had first hit him. At that point, Ork came jogging up. Ork punched D. Soy in the face
    while Ny held him. D. Soy was having trouble breathing and tried to break away from
    Ny’s chokehold, but he could not loosen Ny’s grip.
    Ork pulled out a kitchen knife and held it to appellant D. Soy’s chest. Ny asked
    D. Soy, “Are you still going to call the cops on us? We can kill you right now and throw
    you in the trash can and no one would know.” D. Soy thought they would kill him. He
    panicked and “dropped [his] whole body weight.” He stepped on Ny’s hand and got up.
    Ork then poked him in the face with the knife, and D. Soy grabbed Ork’s right hand,
    which held the knife. At the same time, Ny was punching D. Soy from behind.
    D. Soy then grabbed Ork’s elbow, directed the knife toward Ork, and pushed it
    against him. D. Soy tried to force the knife out of Ork’s hand but “end[ed] up grabbing
    it—grabbing it, and then [he] just started, like, you know, striking him a couple times
    with it.” He did not know how many times he stabbed Ork but it was more than once.
    Ork remained on his feet. The stabbing lasted 10 to 20 seconds. Ny was still swinging at
    D. Soy, and D. Soy dropped the knife and ran. He ran away down the alley south onto
    16th Street.
    D. Soy ran to his friend Martin’s house on 16th Street. Martin told him there was
    a cut on his face. D. Soy then ran east to his mother’s house. He used the bathroom to
    change his boxer shorts. His mother awoke and seemed shocked because he was bloody.
    He told her he had been “jumped by some Cambodians in the alley.” He then ran to his
    father’s house. He climbed a fence behind his father’s apartment complex, located on
    Orange Avenue between 20th and 21st Streets. He saw that about 15 people were
    gathered at his father’s home. He did not know what time this was, or the time of the
    assault upon him, or of any of the events.
    D. Soy went upstairs to his father’s apartment and showered. He told the people at
    his father’s home that he had been jumped and people were trying to kill him. The guests
    began to leave. D. Soy left the party and went to his friend’s home. He did not know his
    8
    friend’s last name, and he did not recall his address. A couple of days later, he left the
    city.4 He was afraid Asian Boys were going to kill him. He talked to someone about
    turning himself in, but a lawyer told him it was not the time yet.
    “Years later,” D. Soy learned the police were looking for him for murder. He
    knew that his brother was arrested for this case in January 2009. He gave the police a
    false name when he was arrested because he was scared of the Asian Boys and because
    he did not want to go to jail.
    D. Soy denied telling police that he was a member of the Suicidals gang. In 2005,
    D. Soy was stopped by police in the company of a man named Cho with Asian Boys
    tattoos. He said he did not know Cho was from Asian Boys. He thought he remembered
    being found riding with Cho when the police found meth in the car. D. Soy told police he
    was “going down for it” but “it was really Cho’s stuff.”
    III. Other Defense Witnesses
    Davy Soy is the older brother of the Soy twins and lived in his father’s home on
    Orange Avenue. T. Soy, Dara Soy (another brother), and their father lived there, as well,
    in 2007. The father’s home was roughly over a half mile away from where defendants’
    mother lived with appellant D. Soy on 16th Street near Alamitos Avenue. Dara Soy had
    long hair.
    On the evening of July 1, 2007, Davy Soy spoke to appellant T. Soy once or twice
    on the telephone. He called T. Soy from the Orange Avenue telephone and asked him to
    go to the store. The second call was about appellant D. Soy being in trouble as reported
    by their mother at “10:30-ish.” Later, Davy Soy saw D. Soy, bruised and bloody,
    climbing over a fence at the Orange Avenue residence. D. Soy stayed for about 20
    minutes. D. Soy told Davy Soy that he had been “jumped” in the alleyway. He said he
    had been jumped by a “dike bitch” and then by her two male friends. He did not tell
    Davy Soy that he had just stabbed someone.
    4      D. Soy later testified he left town that night.
    9
    D. Soy went to an upstairs bathroom and cleaned himself up. T. Soy arrived at the
    Orange Avenue residence about five or 10 minutes after D. Soy had left. T. Soy was
    driving a white Acura two-door car.
    Ban Khun is a cousin of the Soy twins. He was at the party at the Orange Avenue
    home on July 1, 2007. He saw T. Soy there at 9:00 p.m. T. Soy left to get cigarettes and
    beer. Davy Soy took a telephone call and said D. Soy was in trouble. Davy called T.
    Soy. Ban Khun saw D. Soy arrive after 10:00 p.m. looking “panick[ed,]” and “roughed
    up.” His cheek was cut under his eye. D. Soy went to the restroom. A little while after
    seeing D. Soy, Ban Khun saw T. Soy arrive back at the Orange Avenue residence.
    Shortly after appellant T. Soy returned, Ban Khun left at about 11:00 p.m. D. Soy was
    still at the Orange Avenue residence when Ban Khun left at 11:00 p.m.
    John Khun, another cousin of the Soy twins, was also at the party. He arrived
    after 10:00 p.m., stayed about half an hour, and did not see either defendant at the party
    when he arrived. Later, he saw D. Soy climbing over a 10-foot-high gate. He saw that
    D. Soy had been beaten and had blood on his face from a cut on his left cheek. He was
    out of breath as if he had been running. When he learned D. Soy had been in a fight,
    John Khun soon left. John Khun feared retaliation from the three people that had jumped
    D. Soy. D. Soy told him that a woman and two men had attacked him in an alley near his
    mother’s home. D. Soy never told John Khun that night that he had stabbed someone.
    John Khun did not remember seeing T. Soy that night.
    Long Beach Police Officer Scott Miller was one of the officers who responded to
    the alley between 16th and 17th Streets on July 1, 2007. He spoke to both Ny and Tuoth.
    Tuoth said he had been in the alley with Ny “the whole time,” and they had been drinking
    together. When Officer Miller first saw Ny, Ny had blood on his shirt and hands and said
    he had just seen his friend get stabbed. He said he did not want to implicate anyone. He
    then said his friend had been stabbed, but he was not there when it happened. He also
    said he did not know the full names of his friends. Tuoth did not appear to be upset.
    Tuoth told Officer Miller that Ny was his best friend.
    10
    Officer Miller handed Ny off to gang detectives at the scene only because the police were
    busy and the detectives were assisting at the scene.
    Officer Jennifer Riordan spoke with Teng on the night of the stabbing. Teng told
    her that she had been drinking with friends in the alley when a white sedan drove down
    the alley. The occupants got out of the car and rushed her and her friends. Teng was hit
    on the back of the head, fell to the ground, and lost consciousness. When she awoke, one
    of the male friends was lying on the ground and bleeding. The other two males were
    hovering over him and trying to wake him up. The white car was gone. Teng called 911.
    Teng said that two male Asians got out of the white sedan. At first she told the officer
    they were twins and then said she thought they just looked alike. She said one of them
    looked familiar, and when asked why, she could not respond. Teng said she and her
    friends were not gang members.
    Officer Riordan said that Detective Hodgson actually discovered the crime scene
    and was there before Officer Riordan and Officer Trias. While she and Officer Trias
    were on route, they used their keyboard to state they were “on scene,” but they had gone
    to 17th and Alamitos Avenue first.
    Detective Udom Sawai was working gang detail at the time of the stabbing, and he
    spoke with Ny at the scene. He decided to speak to Ny after another officer had done so
    because, due to Ny’s “body language and the way he projected himself,” the detective
    suspected Ny knew more about the crime than he had revealed. In the end, Ny did not
    want to cooperate with the police. Detective Sawai was familiar with the Asian Boys
    gang and the Suicidals gang. They are primarily Cambodian gangs. Detective Sawai
    recalled that Ny had admitted being a gang member, but he did not recall which gang.
    Detective Sawai saw a lot of graffiti in the alley, but he did not recall specifically what
    type. The Suicidals and Asian Boys generally get along. Based on reports and
    conversations with other officers, Detective Sawai believed that the Soy brothers were
    members of the Suicidals gang.
    In response to a hypothetical presented by the prosecutor on cross-examination,
    Detective Sawai stated that if one of two brothers got jumped or faced down in public, it
    11
    was part of the mentality of the gang member to want to retaliate. It was also part of the
    mentality to go and get reinforcements before engaging in retaliation.
    Detective Teryl Hubert was one of the detectives assigned to investigate the
    murder. He determined that Tuoth was associated with the Asian Boys gang. He self-
    admitted in 2010, but there were contacts in which Tuoth was with gang members as
    early as July 2008. Teng also was associated with the Asian Boys gang as early as July
    2007. Ny admitted to being an Asian Boys gang member in July 2007. There was no
    indication that Ork was involved in any gang.
    Mary Blatz worked as the Catholic representative for the Cambodian community
    in Long Beach from 1992 until 2009. She was involved in many projects in aid of the
    community. She had known the defendants’ mother, Kelly San, since 1999. Blatz also
    knew D. Soy and T. Soy and learned that they were wanted for murder. Blatz gave San
    support and helped her look for legal advice. Blatz spoke several times with a former
    deputy city attorney named Ken Byrd. Blatz talked with San and Ken Byrd about
    whether the brothers should turn themselves in. The brothers “were trying to find the
    conditions to turn themselves in.” They “were concerned about their safety from the
    gang inside or outside the jail.”
    Detective Mendoza wrote a report regarding the former city attorney named
    “Ken,” with whom he spoke in November 2008. Detective Mendoza was asked to
    telephone Ken. The detective did not recall the conversation, but it involved the
    defendants.
    Rebuttal Evidence
    Teng identified the voice on the 911 call as her own. She told the operator she
    thought someone had been shot because she saw bleeding and assumed Ork had been
    shot. Another lady, a neighbor, got on the line also. Ny told Teng that Ork had been
    stabbed. Right before she was knocked down, Tuoth, Ny and Ork were there. They were
    there when the car pulled up. Out of the corner of her eye, she saw Tuoth “rumbling”
    with someone.
    12
    Raymond MacDonald, the cell phone expert, testified that Kelly San was the
    subscriber for cell phone number 562-787-6283. Her address was on 16th Street in Long
    Beach, and her home telephone number was 562-599-2099. Two calls were made from
    562-787-6283 to 714-209-3126 at 10:34:37 p.m. and 10:38 p.m. on July 1, 2007. These
    calls bounced off the cell phone tower located closest to the stabbing, i.e., 1430 East
    Anaheim Street. The calls were coming from San’s phone and going to T. Soy’s phone.
    The cell phone with the number 714-209-3126 had no subscriber information because it
    was a prepaid phone also known as a “throw phone.” It was marked in San’s phone as
    belonging to “Vuthy.” Both of the calls were answered. “Answered” calls could also
    include calls that went to voicemail, but on incoming calls, there would be no cell sites
    listed for such calls.
    In April 2000, Detective Roger Zottneck asked T. Soy some booking questions
    when he was arrested for a probation violation on a juvenile arrest. T. Soy said that he
    was a member of the Suicidals gang.
    In September 2005, Officer Jesus Fragoso made a traffic stop on a car in which
    D. Soy was a passenger. D. Soy was in possession of mace and did not have a card
    authorizing him to possess it. When he was booked, D. Soy was found to possess
    methamphetamine. The car’s driver was a documented Asian Boys gang member.
    D. Soy said he was in the gang files as a Suicidals gang member but claimed he was not a
    member. D. Soy said that the driver gave him the methamphetamine to hold because the
    driver was on parole and did not want to get in trouble.
    Detective Mendoza stated that there was a large pool of blood in front of a car and
    on the hood of a car in the alley. This is where Ork was stabbed. Detective Mendoza
    searched for blood throughout the alley, on other cars, and in surrounding properties. He
    also looked for blood on any objects in the area. The only blood found was in between
    the two cars and on the hood of the car.
    13
    DISCUSSION
    I. Denial of Motion to Release Juror Information (D. Soy Issue No. 1, T. Soy Issue
    No. 6)
    A. Arguments
    D. Soy and T. Soy argue that the trial court abused its discretion in denying the
    motion for disclosure of juror information and finding the motion to be premature,
    requiring reversal and remand so that the trial court can reconsider the motion and allow
    counsel a reasonable time to file a new motion for new trial.5 D. Soy contends the record
    establishes good cause for the disclosure of juror information in the form of prosecutorial
    misconduct. T. Soy contends his motion contained a sufficient factual basis to support a
    reasonable belief that juror misconduct occurred.
    B. Relevant Authority
    Under Code of Civil Procedure section 237, all personal identification information
    of jurors sitting on criminal cases must be sealed upon the recording of the jury’s verdict.
    (Code Civ. Proc., § 237, subd. (a)(2).) A person wishing access to that information may
    petition the court for release of the information and must support that petition with a
    declaration that includes facts sufficient to establish good cause for its release. (Code
    Civ. Proc., § 237, subd. (b).) The court must set the matter for hearing if the petition and
    supporting declaration establish a prima facie showing of good cause for release of the
    information, but it must not set the matter for hearing if there is a showing of facts that
    establish a compelling interest against disclosure. (Ibid.) To demonstrate good cause, a
    defendant must, among other things, file a petition that “sets forth a sufficient showing to
    support a reasonable belief that jury misconduct occurred.” (People v. Rhodes (1989)
    
    212 Cal. App. 3d 541
    , 551-552; accord, People v. Jefflo (1998) 
    63 Cal. App. 4th 1314
    ,
    1322–1323.) Furthermore, the misconduct alleged must be “‘of such a character as is
    5       We refer to only T. Soy’s counsel in the discussion, since D. Soy’s counsel did not
    file separate written motions or argue the motions. T. Soy filed the motions and D. Soy
    joined.
    14
    likely to have influenced the verdict improperly.’” ( Jefflo, at p. 1322.) A petition to
    disclose juror identification information must be supported by more than mere
    speculation and may not be used as a “‘fishing expedition[ ]’ by parties hoping to
    uncover information to invalidate the jury’s verdict.” (Rhodes, at p. 552.)
    The trial court’s determination of whether to hold a hearing is reviewed for an
    abuse of discretion. (People v. Jones (1998) 
    17 Cal. 4th 279
    , 317; see also People v.
    Castorena (1996) 
    47 Cal. App. 4th 1051
    , 1065.)
    C. Proceedings Below6
    Teng’s 911 call was played for the jury, and the jury was provided with a
    transcript. The prosecutor did not elicit evidence as to the time the 911 call was made,
    and the time was not shown on the transcript or recording. Officer Rogelio Trias testified
    that he and his partner, Officer Riordon, received a call about a shooting at 17th and
    Alamitos Avenue at 10:44 p.m.7 Testimony from Detective Mendoza for the defense
    revealed that the call was first routed to the fire department. T. Soy’s mother had the
    number 714-209-3126 in her cell phone as belonging to “Vuthy.” Cell phone evidence
    showed that there were several calls involving phone number 714-209-3126 on July 1,
    2007—at 10:39, 10:40 and 10:42. Then there were calls at 10:44 and 10:50 p.m.
    Considering the location of the towers, it appeared that T. Soy was traveling northbound.
    The calls were being sent to his phone.
    The prosecutor asked during closing argument, “Who called [T. Soy] to the scene?
    There is a phone call for the mom’s cell phone. Do we know if [D. Soy] placed the call?
    . . . Do we know for sure whether [T. Soy] met him on the street, whether they picked a
    location, whether [D. Soy] made it back to the house. . . ? Those are questions that might
    be unanswered.” Defense counsel argued, inter alia, “the phone records the People
    produced support my client” because they showed they were incoming calls, he identified
    6      The facts related here are relevant to the first three issues in this opinion.
    7      Teng at first reported to the 911 operator that her friend had been shot.
    15
    Brown’s number, and Teng and Tuoth said everything happened “quickly.” On rebuttal,
    the prosecutor asserted that it was “10:44 when the call is going out to the police.”
    During deliberations the jury sent several notes to the court, some of which dealt
    with the evidence. The first note asked, “What do we do if there is a disagreement where
    a juror does not believe any of the testimony and we cannot reach a verdict?” The second
    note asked for T. Soy’s testimony pertaining to driving through the alley. The third note
    asked for readback of Tuoth’s testimony. The fourth note asked for the legend to defense
    exhibit “F” (a sketch of the crime scene). The jury also asked to see the transcript of the
    911 call. The request was granted and the audio was played. Finally, the jury sent a note
    saying, “We need help in arriving at a verdict, we are at a stalemate on making a
    decision.”
    When the jurors were reconvened by the court, the foreperson stated that the jury
    members had looked at the case from every angle and could not bring the two opposing
    sides together. The court asked if there was any particular issue the lawyers could re-
    argue briefly. After speaking to another juror, the foreperson asked if they could have the
    lawyers talk through the time of death and the time the victim was stabbed. After further
    discussion among themselves in the deliberation room, the jury returned and presented
    five questions to be addressed by additional argument: whether Ork was pronounced
    dead at the scene, the time Ork was stabbed, the time T. Soy drove through the alley,
    what T. Soy saw in the alley, and what were the changes in Teng’s testimony over the
    course of time, i.e., how had her story changed, if it had. The jury foreperson confirmed
    that the questions applied equally to each defendant. Before the jury was dismissed for
    the day, Juror No. 5 added that he would like an explanation of the time frame beginning
    with the time D. Soy walked down to the alley, the stabbing, and on through what D. Soy
    did immediately after the stabbing.
    In his supplemental argument, the prosecutor told the jury they had three things:
    the cell phone records, the 911 call, and the police call history. The 911 recording started
    before the police call. He stated that, “by listening to the content of the recording and
    interfacing it with this (indicating), you can tell within seconds what time the recording
    16
    started.” The prosecutor used the 911 call recording counter in conjunction with the
    police call history to calculate when the 911 call went out. He arrived at the conclusion
    that, “when you tie all this together, everything points to the recording starting before—
    before 10:41, it’s 10:40 and 40 seconds—53 seconds, okay. Right around there. Why is
    that important? It’s because now we’re going to pretend for a second that what these
    defendants testified to is true.” The prosecutor asserted that “a lot of stuff happened”
    before Teng got on the phone, and if T. Soy had driven through the alley he would have
    seen it. T. Soy said he got a call from Brown and within 20 seconds he went around the
    corner. The defense exhibit showed the call from Brown came in at 10:40:03. If
    defendant had driven through the alley “he would have seen all of this stuff happening if
    that were true.”
    The prosecutor stated, “This is the hard facts. You add it all up, you can tell on
    the recording when these things happened. You can tell that recording starts before
    10:41. He’s in the alley, according to his testimony, at the minute of 10:40. You can’t
    reconcile that. There’s no way. . . . If you look at hard evidence, it’s all there. There is
    no way that their stories are true.” In supplemental rebuttal, the prosecutor repeated,
    “Things have to happen before 10:40:53 if you believe their story. Okay. The stabbing
    has to have happened.” According to the prosecutor, the 911 came in at 10:40:53
    because “add nine minutes and one second to that, that would be about the time that
    police would be entering, fire is working on him now. Nine minutes and one second
    added to 10:40:53 is 10:49 and 54 seconds.”
    The jury resumed deliberations and returned verdicts of guilt of second degree
    murder approximately one hour and 20 minutes later. On October 20, 2011, T. Soy’s
    counsel filed a motion requesting a continuance of the sentencing hearing pending
    determination of his new trial motion. He also filed a motion for an order releasing
    jurors’ identifying information. Counsel argued the prosecutor committed misconduct
    because he argued facts not in evidence and contrary to the evidence produced at trial
    when he told the jury that the 911 call was made at 10:40:53. In his declaration, T. Soy’s
    counsel stated that after the verdicts were read, he spoke to three jurors who said the
    17
    prosecutor’s supplemental closing argument about the timing of the 911 call was the
    basis for breaking the impasse in the deliberations. Counsel stated he later spoke to the
    jury foreman, who said the jury members found both alleged eyewitnesses (Teng and
    Tuoth) unreliable and they “did not believe anything they said.” The prosecutor filed an
    opposition on December 5, 2011. The prosecutor argued the defense motion did not
    establish good cause because it did not make a preliminary showing of potential jury
    misconduct, and the evidence sought would be wholly inadmissible, since it sought
    evidence of the jurors’ subjective mental processes.
    At the February 3, 2012 hearing on the motion, the court began by saying the
    motion was premature. Moreover, nothing had been provided to the court that mandated
    that juror information be released under Evidence Code section 1150.8 Defense counsel
    for T. Soy explained that the incorrect timeline in the prosecutor’s supplemental
    argument introduced something that was never introduced into evidence at trial and was
    misleading. Counsel stated he expected the prosecution to argue that the supplemental
    argument to the jury during deliberations was immaterial or not prejudicial within the
    context of the whole trial. To counter that, counsel would need testimony from the jurors
    attesting to the importance of the prosecutor’s timeline. He believed he was entitled to
    talk to the jurors to ascertain whether the timeline was “something that ended up tipping
    the scales, so that it went from being a deadlocked jury to coming in very quickly with
    guilty verdicts.”
    After hearing from the prosecutor, who reiterated the arguments in his
    December 5, 2011 opposition, the court stated, “I think that predicated upon what
    8       Evidence Code section 1150 provides: (a) Upon an inquiry as to the validity of a
    verdict, any otherwise admissible evidence may be received as to statements made, or
    conduct, conditions, or events occurring, either within or without the jury room, of such a
    character as is likely to have influenced the verdict improperly. No evidence is
    admissible to show the effect of such statement, conduct, condition, or event upon a juror
    either in influencing him to assent to or dissent from the verdict or concerning the mental
    processes by which it was determined. [¶] (b) Nothing in this code affects the law
    relating to the competence of a juror to give evidence to impeach or support a verdict.”
    18
    happens at the motion for new trial, that may open up the door as far as 1150 is
    concerned. But I think at this point this particular motion is premature.” The court added
    the “issue of the timing and whatever and the supplemental argument is going to be
    critical and I think that’s the issue that has to be analyzed. . . . Then depending upon
    what is show up there then we may very well get into this very issue.” The court stated it
    would neither grant nor deny the motion, but simply take it off calendar with defense
    counsel’s permission. Counsel replied, “Okay.”
    The matter was continued several times due to counsel’s serious health issues and
    other matters. The new trial motion was heard on November 14, 2013.9 Counsel for
    T. Soy again argued that the prosecutor’s mistake about the timing of the 911 call was
    misleading and caused the jury not to believe anything T. Soy said, including his
    statements about the gun and what he saw or did not see in the alleyway.10 The court
    asked counsel to explain what the difference of two minutes or slightly less than two
    minutes could have had on the jury’s decision. Counsel replied that the timing was very
    important because if the 911 call happened earlier, as the prosecutor stated, and T. Soy
    was driving through the alley, the other people would have been there. Counsel stated
    that was why the defense asked for permission to contact the jurors—to find out what
    occurred. He believed it made a difference in their thinking, based on what they told
    him.
    In his response, the prosecutor stated that the issue of the time of the call was an
    argument that he engaged in prosecutorial misconduct. Because counsel repeatedly
    emphasized it was an isolated mistake on the part of the prosecutor, it could not be
    9      The trial court requested argument on the three issues in counsel’s written new
    trial motion: sufficiency of the evidence, ineffective assistance of counsel, and
    prosecutorial misconduct. We discuss only the latter issue in this portion of the opinion,
    since that is the issue related to counsel’s request for disclosure of juror information.
    10    In the interim, the parties had obtained the fire department’s incident report, which
    showed that the alarm came in at 22:43 on July 1, 2007, and not 10:40:53, as the
    prosecutor had argued.
    19
    prosecutorial misconduct, which requires deceptive or reprehensible methods or a pattern
    of egregious conduct. Moreover, defense counsel did not object, and the court repeatedly
    told the jury that the arguments of the attorneys were not evidence. Furthermore, the
    issue was a difference of about two minutes and seven seconds, and the testimony
    showed that would not have made a difference with respect to evaluating the truth of
    T. Soy’s testimony about his passage through the alley in search of his brother. Also,
    absent reports of juror misconduct, rather than explanations of how they analyzed the
    evidence, it was not proper to elicit statements from the jurors after the fact. The
    prosecutor stated that he had “talked to the so-called hold-out juror . . . and [ ] was
    surprised to find that [the juror] said that this argument about the timing didn’t matter to
    him much.” But, the prosecutor added, it did not matter what the jury’s thought process
    was, since “we can’t get into that.”
    The court stated the defendants could not prevail on the new trial motions with
    respect to the issue of the prosecutor’s allegedly incorrect argument because the argument
    did not constitute prosecutorial misconduct. It was merely a mistake, and there was no
    objection.
    Sentencing occurred on January 10, 2014. T. Soy’s counsel reminded the court of
    his argument at the new trial motion hearing that the prosecutor’s supplemental argument
    about the timing was persuasive, although “we don’t know.”
    D. Analysis
    It is clear from the record that the trial court made no final ruling per se on the
    motion for disclosure of juror information. Nevertheless, when the trial court found no
    prosecutorial misconduct (the basis for the disclosure motion) during the hearing on the
    new trial motion, the court foreclosed the defense from pursuing the disclosure motion
    and impliedly denied the motion. We conclude the trial court did not abuse its discretion
    in denying the defense request for juror contact information, since there was no showing
    of good cause to release the information, and the information sought was in violation of
    Evidence Code section 1150.
    20
    As noted ante, a defendant demonstrates good cause by a “sufficient showing to
    support a reasonable belief that jury misconduct occurred.” (People v. 
    Rhodes, supra
    ,
    212 Cal.App.3d at p. 552.) Here, there was no such showing. T. Soy’s counsel asserted
    in his declaration that several jurors told him the supplemental timeline argument was the
    basis for breaking the deadlock. Although not contained in a sworn declaration, the
    assertion of the prosecutor, an officer of the court, that the supplemental timeline
    argument was not the basis for changing the mind of the “so-called holdout juror” must
    also be taken into account.11 The thrust of the defense argument for disclosure thus
    required revelation of the deliberative process in the minds of the jurors, which calls for
    prohibited inquiry.
    Evidence Code section 1150 allows consideration of evidence as to statements
    made, or conduct, conditions, or events occurring that might have improperly influenced
    the verdict. In this case, we know the nature of the “statements made” that allegedly
    improperly influenced the verdict, since the claim is that it was the prosecutor’s
    argument, or, more precisely, the repetition of it in the jury room. The defense was
    clearly seeking “the effect of such statement . . . upon a juror either in influencing him to
    assent to or dissent from the verdict or concerning the mental processes by which it was
    determined.” (Evid. Code, § 1150, subd. (a).) Evidence Code section 1150 prohibits
    such an inquiry. It was mere speculation that there might be some tangible evidence of
    misconduct that would be discovered were the defendants permitted to engage in a
    “‘fishing expedition.’” (People v. 
    Rhodes, supra
    , 212 Cal.App.3d at p. 552.) T. Soy’s
    counsel actually stated that the defense asked for permission to contact the jurors to find
    out what had occurred that “made a difference in their thinking,” a clear reference to the
    subjective thought processes of the jurors.
    11      The jury foreman never gave the court a breakdown of the split among the jurors.
    In his first note, however, he referred to “a” juror [who] does not believe any of the
    testimony.
    21
    We note that D. Soy also faults the trial court for finding the initial motion was
    premature. Although Code of Civil Procedure section 206, subdivision (g) allows
    disclosure of the information as “necessary for the [defense] to communicate with jurors
    for the purpose of developing a motion for new trial or any other lawful purpose,” the
    key word is “necessary.” As the record shows, the trial court was not convinced that,
    even if the prosecutor’s timeline was incorrect, it could have had any bearing on a
    reasonable juror’s verdict. The error was a gap of two minutes and seven seconds, and
    the evidence did not show the alley was unoccupied at any time after T. Soy would have
    learned that D. Soy was in trouble. Clearly, Teng was injured and was nearby when Dara
    Ork was stabbed—this did not tie in with D. Soy’s testimony, regardless of the small
    discrepancy in timing. Moreover, T. Soy’s counsel, who argued the motion, acquiesced
    in the court’s statement that the motion was premature and in taking it off calendar.
    T. Soy argues that the juror misconduct consists of the jurors using the
    prosecutor’s argument as evidence despite the trial court’s admonitions not to do so.
    Once again, there is no showing any members of the jury regarded the argument as
    evidence merely because the jurors reached a unanimous verdict within approximately an
    hour and 20 minutes of hearing argument by the prosecutor and the two defense
    attorneys. In this case, the trial court repeatedly instructed the jurors that the attorneys’
    arguments were not evidence. (CALJIC No. 1.02.) “The crucial assumption underlying
    our constitutional system of trial by jury is that jurors generally understand and faithfully
    follow instructions.” (People v. Mickey (1991) 
    54 Cal. 3d 612
    , 689, fn. 17.) Furthermore,
    other portions of the prosecutor’s argument, or even the defense argument, may have
    aided the jury in the task of ascertaining the truth. The prosecutor also argued in his
    supplemental argument that the jury should consider that although Teng told different
    stories, her evidence at trial was very similar to what she told the police that night. The
    prosecutor reminded the jury to consider Tuoth’s evidence as well. He urged the jury to
    focus on what the two available witnesses told the police on the night of the stabbing and
    not to disbelieve all of Teng’s testimony merely because she lied at some point. He
    reminded the jury that Officer Riordan reported from the scene the information she
    22
    received that “three male Asians approached in white Acura, possible physical
    altercation. And then out to 17th unknown direction.”
    Given the measures taken by the trial court and the lack of any showing by
    defense counsel that jury misconduct occurred, we find no abuse of discretion.
    II. Alleged Prosecutorial Misconduct and Denial of New Trial Motion Based on
    Prosecutorial Misconduct (D. Soy Issue No. 2; T. Soy Issue Nos. 2, 3, and 5)
    A. Argument
    D. Soy argues that the trial court erred in finding no prosecutorial misconduct and
    denying the new trial motion. The prosecutor committed misconduct by arguing that the
    911 call was received around 10:40 p.m. because there was no evidence adduced at trial
    to establish the time of the call. The prosecutor’s use of facts that were neither true nor in
    evidence was highly prejudicial and infringed upon defendants’ rights to due process, a
    fair trial, and a fair determination of penalty.
    According to T. Soy, the trial court should have granted the new trial motion on
    the ground of ineffective assistance of counsel as well as that of prosecutorial
    misconduct. He contends his trial counsel was prejudicially ineffective for failing to
    object when the prosecutor argued facts not introduced in evidence and failing to request
    a jury admonition. T. Soy adds that the prosecutor’s misconduct was willful because the
    prosecutor knew the 911 call did not come in at 10:40 p.m.
    B. Relevant Authority
    Under state law, a prosecutor commits misconduct when he or she uses
    “‘“‘deceptive or reprehensible methods to attempt to persuade either the court or the
    jury.’”’ [Citations.]” (People v. Earp (1999) 
    20 Cal. 4th 826
    , 858; accord, People v.
    Wallace (2008) 
    44 Cal. 4th 1032
    , 1070.) “‘A defendant’s conviction will not be reversed
    for prosecutorial misconduct’ that violates state law . . . ‘unless it is reasonably probable
    that a result more favorable to the defendant would have been reached without the
    misconduct.’ [Citation.]” (Wallace, at p. 1071.) In order for a violation of the federal
    Constitution to occur, a prosecutor’s intemperate behavior must be egregious and infect
    23
    the trial with a degree of unfairness that renders the subsequent conviction a denial of due
    process. (Id. at p. 1070.)
    “‘“[T]he prosecution has broad discretion to state its views as to what the evidence
    shows and what inferences may be drawn therefrom.”’ [Citation.]” (People v. Welch
    (1999) 
    20 Cal. 4th 701
    , 752.) “To prevail on a claim of prosecutorial misconduct based
    on remarks to the jury, the defendant must show a reasonable likelihood the jury
    understood or applied the complained-of comments in an improper or erroneous manner.
    [Citations.] In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the
    most damaging rather than the least damaging meaning from the prosecutor’s
    statements.” (People v. Frye (1998) 
    18 Cal. 4th 894
    , 970, disapproved on another ground
    in People v. Doolin (2009) 
    45 Cal. 4th 390
    , 421, fn. 22.)
    The prejudicial misconduct of the district attorney before a jury is one of nine
    grounds for the granting of a new trial. (§ 1181, subd. 5.) The denial of a motion for new
    trial is reviewed for abuse of discretion. (People v. Staten (2000) 
    24 Cal. 4th 434
    , 466.)
    “A trial judge is in a better position than is an appellate court to determine the probable
    effect of misconduct of [the prosecutor] and his conclusion on that question will not be
    disturbed by an appellate court unless in the circumstances it is plainly wrong.
    [Citation.]” (People v. Sarazzawski (1945) 
    27 Cal. 2d 7
    , 15, disapproved on another point
    in People v. Braxton (2004) 
    34 Cal. 4th 798
    , 817.)
    C. Analysis
    It is true that defense counsel failed to object to the prosecutor’s argument
    regarding the time of the 911 call. Since T. Soy also argues that this failure constituted
    ineffective assistance of counsel, we consider the issue on its merits.
    In addressing a claim that a prosecutor has misstated or mischaracterized evidence,
    the California Supreme Court explained: “While counsel is accorded ‘great latitude at
    argument to urge whatever conclusions counsel believes can properly be drawn from the
    evidence [citation],’ counsel may not assume or state facts not in evidence [citation] or
    mischaracterize the evidence [citation].” (People v. Valdez (2004) 
    32 Cal. 4th 73
    , 133–
    134.)
    24
    In the instant case, we believe the prosecutor’s argument did not consist of
    evidence of matters outside the record or a mischaracterization of the evidence, but rather
    permissible, although apparently incorrect, inferences from police evidence of the 911
    call and the running time of the 911 recording shown on the tape counter. It was for the
    jury to determine the reasonableness of the prosecutor’s proposed interpretation of the
    evidence. (See People v. Farmer (1989) 
    47 Cal. 3d 888
    , 923, overruled on another ground
    in People v. Waidla (2000) 
    22 Cal. 4th 690
    , 724, fn. 6; accord, People v. Smith (2003) 
    30 Cal. 4th 581
    , 617 [whether inferences prosecutor draws are reasonable is for jury to
    decide].) The prosecutor’s use of the phrases, “hard pieces of evidence,” “hard facts,”
    and “hard evidence” does not undermine this conclusion. The prosecutor was clearly
    stating his own opinion of what his analysis of the tangible pieces of evidence showed,
    and the use of such phrases is typical of the kind of “vigorous” comment on the evidence
    that is acceptable in closing arguments. (People v. Hill (1998) 
    17 Cal. 4th 800
    , 819;
    accord, People v. Thomas (1992) 
    2 Cal. 4th 489
    , 526 [“‘[T]he prosecutor has a wide-
    ranging right to discuss the case in closing argument’” and “‘to fully state his views as to
    what the evidence shows and to urge whatever conclusions he deems proper’”].) As long
    as it is based on the record and made in good faith, “counsel have a right to present to the
    jury their views on the deductions or inferences that the facts warrant. Their reasoning
    may be faulty, but this is a matter for the jury to decide. [Citation.]” (Farmer, at p. 923.)
    We disagree with T. Soy that the prosecutor argued in bad faith, since the record plainly
    shows he was convinced his analysis was correct. Finally, there was no danger the jury
    was led to believe that the prosecutor was aware of facts that had not been disclosed to
    the jury, since the prosecutor clearly explained his calculations step by step as he played
    the recording.
    Moreover, as we have observed, the trial court instructed the jurors with CALJIC
    No. 1.02, which informed them, inter alia, that statements made by the attorneys during
    trial are not evidence. The court also instructed the jurors that it must determine what
    facts were proved from the evidence at trial and not from any other source. (CALJIC No.
    25
    1.00.) We presume the jury followed the court’s instructions in this regard. (See People
    v. 
    Valdez, supra
    , 32 Cal.4th at p. 114, fn. 14.)
    Accordingly, because there is no reasonable basis to conclude the prosecutor’s
    argument improperly influenced the jury’s ultimate verdict, defendants have not
    established that the trial court’s finding of no prosecutorial misconduct and its denial of
    the new trial motion constituted either an abuse of discretion or a denial of defendants’
    constitutional rights. We conclude that the prosecutor’s time calculations were not a
    deceptive or reprehensible method nor did they constitute egregiously intemperate
    conduct so as to render the trial fundamentally unfair. (See People v. Bordelon (2008)
    
    162 Cal. App. 4th 1311
    , 1323–1324.)
    Despite defense counsel’s act of falling on his sword and including ineffective
    assistance of counsel as a ground for the new trial motion, a defense counsel’s decision
    whether to object in argument to statements by the prosecutor is inherently tactical and
    “the failure to object will rarely establish ineffective assistance.” (People v. Maury
    (2003) 
    30 Cal. 4th 342
    , 419; People v. Riel (2000) 
    22 Cal. 4th 1153
    , 1197.) Since we have
    concluded the prosecutor’s argument was not improper and there was no misconduct,
    trial counsel was not guilty of an omission, and counsel was not ineffective. The
    inferences argued by the prosecutor were drawn from the evidence, and any objection or
    request for admonishment would not have been meritorious. (See People v. Price (1991)
    
    1 Cal. 4th 324
    , 387.) Moreover, T. Soy cannot establish the reasonable probability he
    would have realized a more favorable outcome had his attorney objected to the
    prosecutor’s analysis of the timeline. (Strickland v. Washington (1984) 
    466 U.S. 668
    ,
    693–694.) The trial court’s instruction concerning statements of counsel minimized any
    prejudice.
    III. Curtailment of T. Soy’s Supplemental Closing Argument
    A. T. Soy’s Argument
    T. Soy argues that his trial counsel deserved to have the same amount of time as
    the prosecutor (20 minutes) to present his case at supplemental argument. He contends
    the trial court erred in denying the defense request for the same amount of time.
    26
    B. Relevant Authority
    “A criminal defendant has a well-established constitutional right to have counsel
    present closing argument to the trier of fact. [Citations.] This right is not unbounded,
    however; the trial court retains discretion to impose reasonable time limits and to ensure
    that argument does not stray unduly from the mark. [Citation.]” (People v. Marshall
    (1996) 
    13 Cal. 4th 799
    , 854–855; see also People v. Benavides (2005) 
    35 Cal. 4th 69
    , 110.)
    Section 1044 gives the trial court discretion to set reasonable time limits on argument.12
    We uphold a trial court’s determinations under section 1044 unless the court patently
    abused its discretion. (People v. Calderon (1994) 
    9 Cal. 4th 69
    , 79; People v. Cline
    (1998) 
    60 Cal. App. 4th 1327
    , 1334.) But even if the court did abuse its discretion, the
    defendant must still show prejudice to win reversal. (Cal. Const., art. VI, § 13; Calderon,
    at p. 80.)
    C. Proceedings Below
    After the jurors departed to discuss and specify their issues, the trial court told the
    parties it would give “each side, not each individual, but each side a certain amount of
    time to argue” the issues. The court asked the lawyers how much time they needed to
    argue and indicated that half an hour would be too much. The court settled on 20 minutes
    for each side. T. Soy’s counsel argued that he and D. Soy’s counsel should each have the
    same amount of time as the prosecutor rather than having to divide the 20 minutes
    between them. The court replied, “I’m not going to do that.”
    The prosecutor argued for 10 minutes. T. Soy’s counsel argued for approximately
    15 minutes, leaving D. Soy’s counsel with five minutes. The court stated that D. Soy’s
    counsel could have a little more time if needed, with the understanding that the
    prosecutor would get the same amount of extra time. He apparently used two more
    minutes, and the prosecutor was given 12 minutes for rebuttal.
    12      Section 1044 provides: “It shall be the duty of the judge to control all proceedings
    during the trial, and to limit the introduction of evidence and the argument of counsel to
    relevant and material matters, with a view to the expeditious and effective ascertainment
    of the truth regarding the matters involved.”
    27
    D. Analysis
    T. Soy’s claim fails because the trial court’s limitation was reasonable under the
    circumstances. T. Soy argues that in this case, his counsel had to help the jury form
    answers to its questions by going through the evidence in detail. T. Soy claims his
    counsel needed more than 10 minutes to explain the “conflict in testimony of witnesses at
    the preliminary examination and . . . at the present trial, and the alleged self-impeachment
    of important witnesses for the prosecution . . . .”
    The cases defendant cites regarding time limitations on argument are
    distinguishable, the most obvious difference being that in the instant case we are
    concerned with supplemental argument, not with the standard closing argument. As the
    cases indicate, however, we must determine whether defense counsel was unreasonably
    hindered to the degree that defendants were deprived of a full and fair defense. (People
    Keenan (1859) 
    13 Cal. 581
    , 584-585.)
    The record indicates the trial court acted within its broad discretion in setting a
    reasonable time limit for the arguments for each side. The supplemental closing
    arguments were defined by the jury’s questions. Therefore, all of the evidence,
    testimony, exhibits, and charges did not have to be addressed. T. Soy’s counsel actually
    argued for 15 minutes, and D. Soy’s counsel for seven minutes, each for their own
    purposes. The prosecutor was obliged to address the evidence with respect to both
    defendants in 22 minutes total. T. Soy does not argue that 10 minutes was inadequate,
    but only that the prosecutor got two bites of the apple. However, it is well established
    that the prosecutor has the right to rebut the defense argument. In this case, there were
    two arguments to rebut.
    Section 1093, subdivision (e) provides for closing arguments by counsel for the
    prosecution and the defendant, and specifies that the prosecution has “the right to close.”
    Section 1093’s provision granting the People the right to conclude the argument is
    grounded in the constitutional requirement that the prosecution bears the heavier burden
    of proof in that it must prove guilt beyond a reasonable doubt. (In re Winship (1970) 
    397 U.S. 358
    , 361–364.) “The prosecutor’s burden of proving guilt beyond a reasonable
    28
    doubt at the trial on the issue of guilt justifies his closing the argument as well as opening
    it.” (People v. Bandhauer (1967) 
    66 Cal. 2d 524
    , 530-531.) Here, the prosecution’s
    closing argument and rebuttal were contained in approximately 12.5 pages of the
    reporter’s transcripts. The defense arguments together took up approximately 17 pages
    of reporter’s transcript. A review of the defense closing argument indicates counsel
    thoroughly addressed Teng’s credibility and the prosecutor’s attempt “to extrapolate the
    information that he believes is in here to say when the call was made.” He stated, inter
    alia, that “[e]verybody else has put the time that the call is coming in as 10:44.” He went
    on to explain his interpretation of the recording. There is no reason to believe any longer
    argument would have resulted in different verdicts.
    Finally, there has been no showing of prejudice. Defendant has not explained
    what he would have argued or how additional argument would have made a significant
    difference to his defense. T. Soy does not point to any aspect of the evidence he was
    unable to discuss. It must not be forgotten that defendant was convicted of second degree
    rather than first degree murder. Therefore, any error was harmless under any standard.
    (Chapman v. California (1967) 
    386 U.S. 18
    , 24; People v. Watson (1956) 
    46 Cal. 2d 818
    ,
    836.) Defendant has failed to demonstrate that the court’s imposition of a reasonable
    time limit on his supplemental closing argument constituted an abuse of discretion, let
    alone that its limitation constituted a deprivation of state and federal constitutional rights.
    IV. Sufficiency of the Evidence to Support T. Soy’s Conviction and the True
    Finding on the Firearm-Use Enhancement (T. Soy Issue Nos. 1 and 7)
    A. T. Soy’s Argument
    T. Soy contends there was at most a scintilla of evidence he drove the car from
    which D. Soy allegedly exited before stabbing Ork, and there was no solid evidence he
    pointed a gun at Sean Ny and aided and abetted in the assault. He contends that even if
    there was sufficient evidence from which a jury could have found he drove D. Soy to the
    scene, his mere presence was not enough to convict him as an aider and abettor.
    29
    B. Relevant Authority
    “‘To determine the sufficiency of the evidence to support a conviction, an
    appellate court reviews the entire record in the light most favorable to the prosecution to
    determine whether it contains evidence that is reasonable, credible, and of solid value,
    from which a rational trier of fact could find the defendant guilty beyond a reasonable
    doubt.’” (People v. Bolden (2002) 
    29 Cal. 4th 515
    , 553.) The reviewing court must draw
    all reasonable inferences in support of the judgment. (People v. Wader (1993) 
    5 Cal. 4th 610
    , 640.) Reversal is not warranted unless it appears that “‘upon no hypothesis
    whatever is there sufficient substantial evidence to support [the conviction].’” (People v.
    Bolin (1998) 
    18 Cal. 4th 297
    , 331.)
    “All persons concerned in the commission of a crime, whether it be felony or
    misdemeanor, and whether they directly commit the act constituting the offense, or aid
    and abet in its commission . . . are principals in any crime so committed.” (§ 31.) “A
    person is liable as an aider and abettor when (1) with knowledge of the unlawful purpose
    of the perpetrator and (2) with the intent or purpose of committing, encouraging, or
    facilitating the commission of the crime, that person (3) by act or advice aids, promotes,
    encourages or instigates, the commission of the crime.” (People v. Gibson (2001) 
    90 Cal. App. 4th 371
    , 386.)
    The test of whether a person aided or abetted in the commission of an offense is
    “whether the accused in any way, directly or indirectly, aided the perpetrator by acts or
    encouraged him by words or gestures.” (People v. Villa (1957) 
    156 Cal. App. 2d 128
    ,
    134.) It is not necessary that the primary actor expressly communicates his criminal
    purpose to the defendant, as that purpose may be apparent from the circumstances.
    (People v. Nguyen (1993) 
    21 Cal. App. 4th 518
    , 531–532.) In fact, aiding and abetting can
    be committed “‘on the spur of the moment,’” that is, as instantaneously as the criminal
    act itself. (Id. at p. 532.)
    An aider and abettor is guilty not only of an offense he intended to facilitate or
    encourage, but also of any reasonably foreseeable offense committed by the person he
    aids and abets. (People v. Hickles (1997) 
    56 Cal. App. 4th 1183
    , 1194; see also People v.
    30
    Prettyman (1996) 
    14 Cal. 4th 248
    , 289-290.) An aider and abettor is guilty of all offenses
    that are the natural and probable consequence of the target offense. In determining
    whether the nonintended crime is the natural and probable consequences of the intended
    crime, we do not consider whether the aider and abettor actually foresaw the additional
    crime, but whether, judged objectively, it was reasonably foreseeable. (People v.
    Prettyman, at pp. 261–262.)
    Factors that may be taken into account when determining whether a defendant was
    an aider and abettor are presence at the crime scene and companionship and conduct
    before and after the offense, including flight. (In re Juan G. (2003) 
    112 Cal. App. 4th 1
    ,
    5.) Mere presence at the scene of a crime, knowledge of the perpetrator’s criminal
    purpose, or the failure to prevent the crime do not alone amount to aiding and abetting,
    although these factors may be taken into account in determining criminal responsibility.
    (People v. Garcia (2008) 
    168 Cal. App. 4th 261
    , 272–273; People v. 
    Nguyen, supra
    , 21
    Cal.App.4th at pp. 529–530.) “‘Whether defendant aided and abetted the crime is a
    question of fact, and on appeal all conflicts in the evidence and reasonable inferences
    must be resolved in favor of the judgment.’ [Citation.]” (People v. Campbell (1994) 
    25 Cal. App. 4th 402
    , 409.)
    C. Analysis
    We believe sufficient evidence supports the jury’s verdict and true finding. Tuoth
    testified that D. Soy came into the alley on foot from 17th Street that night, and Teng
    punched him. Tuoth, Dara Ork, and Sean Ny followed Teng down the alley toward 16th
    Street as she attempted to strike D. Soy again. They all went to 16th Street, turned left,
    and were almost at Alamitos Avenue. This was the only time the alley was briefly
    deserted, which called into question T. Soy’s claim that he drove through the alley and
    saw no one after Brown told him his brother had been jumped and had “just left.” So
    T. Soy would not have been looking for him. Tuoth brought Teng back to the alley and
    to where they had all been drinking. Afterwards (two minutes later), Ny and Ork came
    back also and said they had fought with D. Soy. Approximately 10 minutes after that,
    Tuoth saw a white, two-door car come through from the direction of 16th Street. T. Soy
    31
    confirmed he was driving his two-door white Acura RSX that night. The car parked next
    to Teng’s car, at which point D. Soy, T. Soy and another person jumped out, according to
    Tuoth. D. Soy knocked Teng down and then went to Ork. T. Soy was identified as the
    driver of the car. Tuoth testified that T. Soy pointed a gun at Sean Ny. It was established
    that T. Soy possessed a gun that he was allowed to carry for his job as a security guard.
    Tuoth went to help Teng while D. Soy was “fighting” with Ork. D. Soy then ran back to
    the car, and all three men drove away toward 17th Street. When Tuoth ran to help Ork
    get up, he realized he was wet with blood.
    Teng also said she was “rumbling” with D. Soy and that she, Tuoth, Ny, and Ork
    went to the end of the alley on 16th Street. Then she and Tuoth went back to the same
    spot where they had been standing. Shortly thereafter, Ny and Ork returned, seemingly
    out of breath. Ork said D. Soy was going to come back and bring a weapon. A white car
    pulled up about 20 minutes later. T. Soy was driving, and D. Soy and T. Soy got out.
    After being hit and knocked down by one of them, Teng ran behind her car and then saw
    Ork on the ground.
    It is true that the eyewitnesses were not consistent. It was revealed that Tuoth did
    not tell police about the gun. He did not mention it until he testified the first time. He
    also told Detective Mendoza the driver did not exit the car. The record shows that at trial
    Teng recanted her preliminary hearing testimony that she saw T. Soy hold a gun to
    someone. Teng admitted she did not see that, but Ny told her that was what happened.
    She lied to the district attorney and police when she said she saw “stabbing motions.” At
    one point, she also testified to seeing the stabbing. Teng admitted she did not tell police
    at first that she knew who committed the crime. Teng did tell Officer Riordan at the
    scene, however, that the attackers were male Asians, and she thought they were twins,
    although she was reticent about how she knew them. She merely said she thought she
    knew one of them. She testified that she did not tell the truth at first because she was
    afraid. She said the driver hit her, and she acknowledged she was not sure who was
    driving. Ny told her it was T. Soy. She also admitted she did not tell police at first about
    her punching D. Soy.
    32
    The existence of conflicting evidence does not warrant a reversal of the
    convictions. “Conflicts and even testimony which is subject to justifiable suspicion do
    not justify the reversal of a judgment, for it is the exclusive province of the trial judge or
    jury to determine the credibility of a witness and the truth or falsity of the facts upon
    which a determination depends.” (People v. Maury ( 2003) 
    30 Cal. 4th 342
    , 403.) A
    reviewing court may not substitute its evaluation of a witness’s credibility for that of the
    fact finder. (People v. Ochoa (1993) 
    6 Cal. 4th 1199
    , 1206.)
    In addition to the eyewitness testimony, the gang testimony of Detective Sawai
    informed the jury that both of the Soy brothers were members of the Suicidals gang. He
    stated in answer to a hypothetical question that if one of two brothers were jumped, the
    victim would likely seek retaliation and would look for reinforcements. Also, the cell
    phone records showed that someone telephoned T. Soy using Kelly San’s cell phone five
    to 10 minutes before the 911 call was made. D. Soy testified that after his fight with Ork
    and Ny he went to his mother’s home. Davy Soy testified that he placed two calls from
    the Orange Avenue residence to T. Soy to tell him that D. Soy was in trouble, as he had
    been informed by Kelly San during a call at approximately 10:30 p.m. Another witness,
    Ban Khun, corroborated Davy Soy’s testimony. Those calls to and from the Orange
    Avenue residence occurred minutes before Teng’s 911 call at approximately 10:43 p.m.
    A reasonable jury could have inferred from the cell phone evidence that T. Soy and
    D. Soy were in contact and coordinating their actions.
    With respect to the firearm enhancement, the jury heard Teng testify that Ny told
    her T. Soy pointed a gun at him, that she did not see it herself, and that she falsely
    testified that she did at the preliminary hearing. The jury also heard Tuoth’s testimony
    that he saw T. Soy point the gun. The jury was instructed that “[t]estimony concerning
    any fact by one witness, which you believe, is sufficient for the proof of that fact. You
    should carefully review all the evidence upon which the proof of that fact depends.”
    (CALJIC No. 2.27.) The jury clearly believed Tuoth’s testimony. The jury could draw
    the reasonable inference that T. Soy used the gun to deter Ny or anyone else from
    interfering with D. Soy’s attack on Ork, thus acting as an aider and abettor. After D. Soy
    33
    finished his attack on Ork, T. Soy drove himself and D. Soy away from the scene. A
    reasonable jury could conclude this flight was part of a joint purpose and facilitated the
    murder.
    As the jury was instructed, presence at the crime, companionship, and conduct
    before and after the crime may all be considered in deciding whether or not an individual
    is an aider and abettor. (CALJIC No. 3.01.) Flight may also be considered as conduct
    after the crime. (In re Juan 
    G., supra
    , 112 Cal.App.4th at p. 5.) And although not
    determinative, knowledge of the perpetrator’s criminal purpose and failure to prevent the
    crime may be taken into account. (People v. 
    Garcia, supra
    , 168 Cal.App.4th at pp. 272-
    273.) Considering these factors, the record here clearly supports the conclusion that
    T. Soy intended to aid and abet D. Soy’s actions. And even if the intended crime was
    only an assault with a deadly weapon, the jury was also instructed on aiding and abetting
    within the theory of natural and probable consequences. (CALJIC No. 3.02.)
    Accordingly, we decline to reweigh the evidence and reevaluate the credibility of the
    witnesses in this case. (People v. Albillar (2010) 
    51 Cal. 4th 47
    , 60.) We conclude there
    was sufficient evidence to support the finding that T. Soy aided and abetted D. Soy’s
    crime.
    V. Cumulative Error.
    T. Soy argues that, given the lack of credible eyewitness testimony, the absence of
    physical evidence tying him to the killing, and the jury’s reports of stalemate, the
    outcome of the trial would have been different for him if the trial court had foreclosed the
    prosecutor from arguing facts that were never in evidence. Therefore, if this court does
    not reverse for any of the grounds asserted in his brief, reversal is required because the
    cumulative effect of the errors violated his right to due process under the Fourteenth
    Amendment to the federal Constitution, and the violation was prejudicial.
    There can be no cumulative error if each assignment of error fails. We have
    rejected each of defendant’s assignments of error and further found that defendant
    suffered no prejudice in any event. Moreover, in examining a claim of cumulative error,
    the critical question is whether the defendant received a fair trial. (People v. Cain (1995)
    34
    
    10 Cal. 4th 1
    , 82.) As the California Supreme Court has long held, “[a] [d]efendant [is]
    entitled to a fair trial but not a perfect one.” (People v. Cunningham (2001) 
    25 Cal. 4th 926
    , 1009; People v. Mincey (1992) 
    2 Cal. 4th 408
    , 454.) Our review of the record
    assures us that defendants received due process and a fundamentally fair trial.
    DISPOSITION
    The judgments are affirmed.
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
    BOREN, P.J.
    We concur:
    CHAVEZ, J.
    HOFFSTADT, J.
    35