The opinion
Filed 8/20/25 P. v. Manor CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C098456
v. (Super. Ct. No. 21FE003868)
ROBERT MANOR et al.,
Defendants and Appellants.
Defendants Robert Manor and Victor Merle Gray conspired to kidnap and murder
Raymond Wright. Manor wanted Wright dead because Wright seriously injured Manor
and his wife in a car crash while driving under the influence. Gray agreed to kidnap and
bring Wright to Manor in exchange for payment. After Gray did so, Manor poisoned
Wright, whose body was never found.
Defendants were tried together and convicted of first degree murder and
kidnapping for reward. With respect to the murder, the jury found a special circumstance
allegation to be true, and as for the kidnapping, the jury found that defendants caused
1
great bodily injury or death. The trial court sentenced each defendant to state prison
for life without the possibility of parole.
Gray now contends:
1. The jury was improperly instructed on consciousness of guilt.
2. The prosecutor improperly referred to potential punishment during closing
argument.
In addition, Manor and Gray contend:
3. The jury was instructed on an invalid theory of murder liability -- conspiracy
to commit murder -- and the only valid theory, direct aiding and abetting, is not supported
by substantial evidence.
4. Gray kidnapped Wright for payment, not reward.
5. Their privilege against self-incrimination was violated when a prosecution
witness said defendants “know what happened.”
6. The trial court should not have admitted Gray’s unredacted statements against
Manor.
7. The trial court erred in omitting Gray’s name from the CALCRIM No. 334
instruction on accomplice testimony.
8. Cumulative prejudice requires reversal.
We conclude Gray’s prosecutorial misconduct claim was forfeited, his alternative
ineffective assistance claim fails, and the joint contentions by Manor and Gray do not
establish a basis for reversal. We will affirm the judgments.
BACKGROUND
In November 2011, Wright caused a car crash while driving under the influence,
seriously injuring Manor and his wife, who were in the other car involved in the crash.
Wright was convicted of felony driving under the influence and ordered to pay more than
$275,000 in victim restitution.
2
Two or three years later, Manor began receiving massage therapy from T.T. to
alleviate pain from his injuries. T.T. testified that Manor told her about the car crash and
the driver who injured him. At some point, Manor and his wife separated, and he began
an off-and-on romantic relationship with T.T. Manor often complained about pain and
repeatedly told T.T. he was “gonna get Ray Wright.”
Around the same time period, Manor briefly dated Katelan Barnard, who testified
that Manor told her about the car crash and that he wanted to “get” Ray Wright.
In addition, J.L., who described himself as a dear friend of Manor, testified that Manor
was looking for Wright and said he wanted to “[f]uck him up.”
By January 2018, Barnard was in a romantic relationship with Gray, one of
Manor’s friends. Wright rented a carpentry shop from Barnard’s uncle, which was
located on the property where Barnard lived.
On the day of the murder, January 11, 2018, Gray asked Barnard to let him know
when her uncle left the property and when Wright arrived. At 9:50 a.m., she sent Gray
a text message saying that Wright was in front of the shop. Gray asked her to make sure
her uncle was gone. Just before 10 a.m., Barnard sent Gray two text messages saying
“you are good” and “Unc’s gone.” Gray texted Barnard: “Okay, I need some time, text
me if anything changes.” Barnard watched the driveway to see if anyone returned.
What happened next is taken primarily from Gray’s statements during a jailhouse
conversation with cellmate Chris Mitchell following Gray’s arrest. Gray said Manor
asked him for help locating someone, and offered to pay Gray to bring the person to
Manor. Gray told Mitchell that he brought the person to Manor’s Sacramento house,
where Manor was waiting for him with plastic laid out on the floor. Mitchell testified
that Gray said he was paid some money and left. Mitchell further testified that he did not
remember Gray saying that anything happened to the person while he was there.
However, in a prior statement to law enforcement, Mitchell said Gray told him that
Manor poisoned the person, and after the person was dead, Manor and another friend,
3
Mark Nyquist, cut the body up. Gray told Mitchell he was not there for “the chopping
up,” but he was there for the poisoning. Gray said Manor was supposed to pay him
$10,000 for bringing the man to him, but only gave him about $1,000. Gray felt
“burned” by Manor.
On January 13, 2018, Wright’s brother went to Wright’s house to check on him,
as he had not heard from Wright in days. When he went inside, a man yelled: “Get outta
here.” Wright’s brother froze and the man ran. Wright’s brother called 911 and reported
a burglary. A drink cup from a convenience store was found on Wright’s kitchen counter.
DNA matching Gray’s profile was found on the cup.
A couple days after the murder, Gray told Barnard that Manor had hired him to
bring Wright to Manor’s Sacramento house but he “had not gotten paid for it.” Gray gave
Barnard a note that he wanted her to deliver to Manor. A week or two later, Barnard met
Manor at a cemetery. When Barnard told Manor what Gray had told her, Manor admitted
killing Wright, adding that he did not owe Gray anything and would not pay him
anything.
Manor also made incriminating statements to J.L. and T.T. Sometime after the
murder, J.L. went over to Manor’s Sacramento house. Gray and Nyquist were also there.
Nyquist was cleaning up something in the garage. Although J.L. did not say what it was
during his testimony, in an earlier statement to law enforcement, he said “they were
cleaning up . . . some blood.” As that was happening, Manor came into the living room
and told J.L.: “I got him” or “[g]ot ‘em.” On another occasion sometime after this
interaction, while J.L. was housesitting at Manor’s house, he found a note from Gray to
Manor that he referred to as a “fuck you note” or a “ ‘you owe me’ note.”
T.T. testified that Manor called her around that time and asked her to come over
to talk. When T.T. arrived, Manor told her: “I got him.” T.T. understood this to mean
that “he got Ray Wright” because she “never heard him speak about anybody else like
that.” Manor was excited when he made this statement. About a week later, Manor told
4
T.T. that he wanted to give Gray her car for his help in “the whole Ray Wright situation.”
Manor did not say what Gray did to help, but he did say that three other people were
involved: Gray, Barnard, and Nyquist. At the time, the car was in T.T.’s name, but in
Manor’s possession, so she took it back to prevent him from giving it to Gray.
On January 21, 2018, 10 days after the murder, law enforcement found Wright’s
truck parked in North Highlands. Portions of the headliner carpet of the truck’s camper
shell tested positive for blood. DNA matching Wright’s profile was extracted from the
blood stain on the carpet.
About a week later, January 27, 2018, a CHP officer started to pull Gray over in
his van for driving with an expired registration. Rather than pull over, Gray led the
officer on a high speed chase and crashed the van into another vehicle. Gray was arrested
for driving under the influence and taken to the hospital for a broken leg. A search of the
van uncovered a tarp containing a hat with “Ray Wright Design” printed on it, an
inoperable cell phone that appeared to have been smashed with a hammer, a rain jacket
and a piece of burlap with blood stains on them, and a wallet containing Wright’s driver’s
license and credit cards. DNA matching Wright’s profile was extracted from the blood
stain on the rain jacket.
Gray made incriminating statements to his wife during a jailhouse visit following
his arrest. Gray told his wife he had been using the van to clean up the scene. Gray said
he was returning the van when he was arrested, adding: “He used me, man, [‘]cause he
knew I was vulnerable . . . . He knew I needed money, you know what I mean?
And . . . he pounced on it. ‘Cause he couldn’t do it himself.”
DISCUSSION
I
Gray contends the jury was improperly instructed that his flight from law
enforcement two weeks after the murder could show consciousness of guilt.
5
During the instruction conference, the parties and the trial court discussed whether
to give the jury the standard flight instruction, CALCRIM No. 372, or the more general
instruction on evidence of consciousness of guilt, CALCRIM No. 378. The trial court
decided to give the more general instruction because Gray’s flight did not occur
immediately after the crime was committed or immediately after he was accused of
committing the crime. (See CALCRIM No. 372 [“If the defendant fled . . . (immediately
after the crime was committed/ [or] after (he/she) was accused of committing the
crime) . . . .” (italics added)].) Gray’s counsel objected to giving an instruction on
consciousness of guilt.
As given to the jury, CALCRIM No. 378 stated: “If Defendant Gray fled or tried
to flee after he was pulled over by law enforcement on January 27th, 2018, that conduct
may show that he was aware of his guilt. If you conclude that Defendant Gray fled or
tried to flee after he was pulled over by law enforcement on January 27th, 2018, it is up
to you to decide the meaning and importance of that conduct. However, evidence that a
defendant fled or tried to flee cannot prove guilt by itself.”
In reviewing Gray’s assertion of instructional error, we must determine whether
the instruction was supported by substantial evidence. (People v. Cole (2004) 33 Cal.4th
1158, 1206.) Gray argues the challenged instruction was not supported by substantial
evidence because his flight from law enforcement two weeks after the kidnapping and
murder, while driving under the influence and with evidence connecting him to Wright’s
murder in the back of his van, “did not support an inference of consciousness of guilt of
murder or aggravated kidnapping.” Instead, Gray argues, he might have fled because he
did not want to be arrested for driving under the influence, or because he did not want to
be “dragged into [an] investigation of Manor’s crimes.” However, so long as
consciousness of guilt is one reasonable inference from Gray’s conduct, the instruction
was properly given. (See People v. Jantz (2006) 137 Cal.App.4th 1283, 1290-1291.)
6
“The presence of substantial evidence supporting [an] instruction is not undermined by
the existence of other interpretations of the evidence.” (Id. at p. 1291.)
Here, fleeing from law enforcement while driving a van containing evidence
connecting Gray to Wright’s murder certainly supports an inference that Gray was aware
of his guilt. The fact that he might have had other reasons to flee from law enforcement
was a matter for the jury. (See People v. Sweeney (1960) 55 Cal.2d 27, 51 [“The choice
of which inference is to be drawn from the facts, where more than one reasonable
inference is possible, is the function of the jury.”].) Indeed, the instruction itself informed
the jury that “it is up to you to decide the meaning and importance of that conduct.”
Gray’s contention lacks merit.
II
Gray next contends the prosecutor improperly argued to the jury that Gray might
receive a lesser sentence than Manor.
During closing argument, while explaining accomplice and co-conspirator liability
generally, the prosecutor stated that accomplices or co-conspirators “are just as guilty as
the perpetrators,” although they “might get a different sentence from the Judge depending
on their role” in the commission of the crime. The prosecutor later reiterated: “This law
holding aiders and abettors and co-conspirators equally guilty is a disincentive to those
people: ‘Stay away, don’t get involved in this, you’re going down, just the same as
everyone else. Might get a different sentence but you’re going down.” Gray’s counsel
did not object to this line of argument.
“As a general rule, ‘ “[a] defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion, and on the same ground, the defendant objected to
the action and also requested that the jury be admonished to disregard the perceived
impropriety.” ’ [Citation.] The defendant’s failure to object will be excused if an
objection would have been futile or if an admonition would not have cured the harm
caused by the misconduct.” (People v. Centeno (2014) 60 Cal.4th 659, 674 (Centeno).)
7
“A prosecutor’s misstatements of law are generally curable by an admonition from the
court.” (Ibid.) There is no reason that a prosecutor’s improper reference to punishment
could not similarly be cured by admonition. (See People v. Martinez (2010) 47 Cal.4th
911, 958 [a prosecutorial misconduct claim based on claimed references to punishment
during closing argument was forfeited for failure to object].)
Gray has not persuaded us that an objection would have been futile, or that the
prosecutor’s argument was “so extreme or pervasive that a prompt objection and
admonition would not have cured the harm.” (Centeno, supra, 60 Cal.4th at p. 674.)
Gray’s contention is therefore forfeited.
Anticipating this conclusion, Gray asserts that he received ineffective assistance of
counsel. “An ineffective assistance of counsel claim has two elements: a defendant must
show that their counsel’s performance was deficient, and that this deficient performance
prejudiced the defense. [Citation.] A reviewing court can begin an ineffective assistance
of counsel inquiry with either element and need not address both elements if one is not
satisfied.” (In re Tellez (2024) 17 Cal.5th 77, 88, italics omitted.)
Here, there is no reasonable probability of a more favorable result had counsel
objected to the challenged comments. Had such an objection been made, the trial court
would likely have admonished the jury that it was not allowed to consider punishment in
determining guilt. But the jury had already been instructed not to consider punishment:
“In your deliberations, you may not consider or discuss penalty or punishment in any way
when deciding whether a special circumstance or any other charge has been proved.”
Absent a contrary indication, we presume the jury followed that instruction. (People v.
Gray (2005) 37 Cal.4th 168, 217.) Moreover, the evidence of Gray’s guilt was so strong
that the two brief references to a possible different punishment do not undermine
confidence in the verdict. (Id. at p. 207.)
8
III
Manor and Gray contend their murder convictions must be reversed because the
jury was instructed on a theory of murder -- conspiracy to commit murder -- that is no
longer valid after Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437)
eliminated murder liability based on imputed malice. They add that the only valid
alternative theory of murder liability -- direct aiding and abetting -- is not supported by
substantial evidence.
“Murder is the unlawful killing of a human being . . . with malice aforethought.”
(Pen. Code, § 187, subd. (a).)1 Senate Bill 1437 “narrowed or eliminated certain forms
of accomplice liability for murder.” (People v. Curiel (2023) 15 Cal.5th 433, 440
(Curiel).) In addition to narrowing the application of the felony-murder rule, Senate Bill
1437 eliminated the natural and probable consequences theory as a viable theory of
murder liability. (Id. at pp. 448-449.) It accomplished the latter change by amending
section 188 to provide: “Except as stated in [section 189, subdivision (e)], in order to be
convicted of murder, a principal in a crime shall act with malice aforethought. Malice
shall not be imputed to a person based solely on his or her participation in a crime.”
(§ 188, subd. (a)(3).)
The prosecution pursued two theories of first degree murder in this case:
(1) conspiracy to commit first degree murder; and (2) direct aiding and abetting.
Defendants do not dispute that direct aiding and abetting remains a viable theory of
murder liability after Senate Bill 1437. This is “ ‘because a direct aider and abettor
to murder must possess malice aforethought.’ [Citation.]” (People v. Medrano (2021)
68 Cal.App.5th 177, 183 (Medrano); see Curiel, supra, 15 Cal.5th at p. 462.) Instead,
defendants argue conspiracy to commit murder was the prosecution’s primary theory,
1 Undesignated statutory references are to the Penal Code.
9
but the theory is no longer valid because it imputes malice to a criminal defendant
through evidence that the defendant participated in another crime, the crime of
conspiracy. We disagree that the theory is no longer valid.
Conspiring to commit murder remains a viable theory of murder liability after
Senate Bill 1437. (People v. Virgen (2025) 110 Cal.App.5th 440, 451; People v. Richee
(2025) 111 Cal.App.5th 281, 294 [“the prosecution may seek to establish the defendant’s
liability as a participant in a conspiracy to commit murder, without relying on the natural
and probable consequences doctrine”].) This is because “ ‘all conspiracy to commit
murder is necessarily conspiracy to commit premeditated and deliberated first degree
murder.’ [Citation.]” (People v. Beck and Cruz (2019) 8 Cal.5th 548, 641; see Medrano,
supra, 68 Cal.App.5th at p. 183.) As the jury in this case was properly instructed, in
order to find defendants guilty of murder based on this theory, the People had to prove
that: (1) the defendant “intended to agree and did agree” with one or more of the other
alleged members of the conspiracy (i.e., the other defendant, Nyquist, or Barnard) “to
intentionally and unlawfully kill;” (2) the defendant “and one or more of the other alleged
members of the conspiracy intended that one or more of them would intentionally and
unlawfully kill;” (3) one or more of the alleged conspirators committed at least one of
the alleged overt acts (e.g., abducting Wright or transporting him to the murder site); and
(4) at least one of those overt acts was committed in furtherance of the agreement to kill
Wright. The instruction also referred the jury to the murder instructions as to whether
“the [d]efendant and one or more of the other alleged members of the conspiracy
intended to commit murder,” but admonished the jury: “[D]o not consider implied
malice” because “[c]onspiracy to commit murder requires an intent to kill” and “[t]he
People must prove that the members of the alleged conspiracy had an agreement and
intended to commit murder.”
Assuming, as defendants do, that they were convicted of murder based on the
theory of conspiring to murder Wright, the jury necessarily found that they possessed
10
express malice aforethought. In other words, malice was not imputed based solely on
their participation in a crime. (§ 188, subd. (a)(3).) Instead, their commission of the
uncharged crime of conspiracy to commit murder necessarily required that each
possessed the intent to kill. (See People v. Whitson (2022) 79 Cal.App.5th 22, 32 [“Had
the jury been fully instructed with respect to conspiracy to murder . . . its guilty verdict
would have encompassed the finding that Whitson intended to kill.”].)
Defendants’ reliance on Curiel is misplaced. There, the jury was instructed on
direct aiding and abetting and the natural and probable consequences doctrine. (Curiel,
supra, 15 Cal.5th at p. 446.) The prosecutor argued both theories. (Id. at p. 445.) Curiel
filed a petition for resentencing under section 1172.6 alleging that he could not currently
be convicted of murder because of the changes made by Senate Bill 1437, i.e., the
elimination of the natural and probable consequences doctrine as a viable theory of
murder liability. This “put[] at issue all elements of the offense under a valid theory.”
(Id. at p. 462.) Thus, notwithstanding the jury’s additional finding that Curiel possessed
the intent to kill, that was “only one element” of direct aiding and abetting liability. (Id.
at p. 463.) It did not, “standing alone, cover all of the required elements.” (Ibid.) Here,
however, the jury was not instructed on the natural and probable consequences theory, or
any other now-invalid theory. Instead, it was properly instructed on two valid theories,
direct aiding and abetting and conspiracy to commit murder. Because the jury convicted
defendants of murder under one of those valid theories, Curiel is inapposite.
Having concluded that conspiracy to commit murder remains a viable theory of
murder liability after Senate Bill 1437, we note that defendants’ briefing does not directly
challenge the sufficiency of the evidence supporting that theory. However, during oral
argument, Gray’s counsel suggested that the evidence did not support a finding that Gray
intended to kill. And Gray’s briefing, attacking the sufficiency of the evidence supporting
the prosecution’s alternative aiding and abetting theory, although focused on whether
cellmate Mitchell’s testimony was reliable enough to support a reasonable conclusion that
11
Gray “remained at the crime scene while Manor and Nyquist carried out the [murder],”
suggests an argument that the evidence is also insufficient to support a conclusion that
Gray intended for Wright to be murdered.
We therefore briefly address the sufficiency of the evidence supporting the jury’s
implied finding that Gray “intended to agree and did agree . . . to intentionally and
unlawfully kill” Wright, with the specific intent that “one or more of [the conspirators]
would intentionally and unlawfully kill,” and that Gray kidnapped Wright in furtherance
of that agreement. The kidnapping itself is supported by overwhelming evidence, which
need not be repeated here. Strong evidence also supports a conclusion that the
kidnapping was committed in furtherance of a conspiracy to commit murder. Gray’s
letter to Manor admits to having “hand delivered . . . revenge” to Manor. The fact that an
agreement was reached ahead of time for that revenge is evidenced by Gray demanding
payment. He told Barnard that Manor hired him to bring Wright to Manor’s house but he
“had not gotten paid for it.” He also told cellmate Mitchell that Manor was supposed to
pay him $10,000, but only gave him about $1,000. Finally, the jury could have
reasonably concluded that the agreement was for Gray to bring Wright to Manor’s house
in order for Manor or another conspirator to kill him. Strong evidence supports a
conclusion that Manor wanted Wright dead for causing the car crash that injured Manor
and his wife. Manor himself stated on multiple occasions that he wanted to “get” Wright.
And after the murder, he told two people that he “got him.” There was also evidence
Gray told Mitchell that he brought Wright to Manor’s Sacramento house, where Manor
was waiting for him with plastic laid out on the floor. Although there was conflicting
evidence as to whether Gray was present during the actual murder, it was for the jury to
assess the weight of the evidence, and evidence was presented that Gray told Mitchell he
was there for the poisoning. A reasonable inference from all of the evidence is that
Gray’s admitted “hand deliver[y]” of revenge meant that he kidnapped Wright and
brought him to Manor’s house so that Manor could kill him.
12
Having concluded that conspiracy to commit murder remains a valid theory of
murder liability, and that this theory is supported by substantial evidence, we need not
address defendants’ argument that the other valid theory, direct aiding and abetting, is not
supported by substantial evidence. This is because the verdict must be upheld so long as
there is substantial evidence supporting at least one valid theory. (People v. Silva (2001)
25 Cal.4th 345, 370.)
IV
Defendants also claim their kidnapping for reward convictions must be reversed
because Gray kidnapped Wright to receive payment from Manor, not for a reward.
As relevant to the facts of this case, section 209, subdivision (a) provides: “A
person who . . . kidnaps . . . another person . . . with intent to hold or detain, or who holds
or detains, that person for . . . reward, . . . or a person who aids or abets any such act, is
guilty of a felony.” The jury was accordingly instructed that the People had to prove the
following elements: (1) the defendant “kidnapped, abducted, seized, confined or carried
away a person”; (2) the defendant “held or detained that person”; (3) the defendant “did
so for reward;” and (4) the person “did not consent” to those actions. Regarding the
“reward” element, the instruction defined that term to mean “something given in return
for good or evil done or received and especially something that is offered or given for
some service or attainment.” As with the murder charge, the jury was also instructed on
conspiracy to commit kidnapping and principles of aiding and abetting.
During closing argument, the prosecutor argued that Gray kidnapped Wright in
exchange for a reward, i.e., payment, from Manor. Manor, by agreeing to pay Gray to
kidnap Wright, both aided and abetted the crime and conspired with Gray to have the
crime committed. The prosecutor also quoted the instruction’s definition of “reward” in
arguing that Manor’s payment qualified.
Defendants challenge the instruction’s definition of “reward” as being too broadly
synonymous with “compensation.” They argue such a broad definition does not comport
13
with a proper reading of the aggravated kidnapping statute and also “violates the
constitutional prohibition on vague criminal statutes.”
Questions of statutory interpretation are subject to de novo review. (People v.
Gonzalez (2017) 2 Cal.5th 1138, 1141.) “ ‘ “As in any case involving statutory
interpretation, our fundamental task here is to determine the Legislature’s intent so as to
effectuate the law’s purpose. [Citation.] We begin by examining the statute’s words,
giving them a plain and commonsense meaning. [Citation.]” [Citation.] “ ‘When the
language of a statute is clear, we need go no further.’ ” ’ ” (People v. Scott (2014)
58 Cal.4th 1415, 1421.)
Section 209, subdivision (a) prohibits, as relevant here, the kidnapping of a person
with the intent to hold or detain the person “for ransom, reward, or to commit extortion or
to exact from another person any money or valuable thing . . . .” Stated simply, the crime
“requires the deprivation of a person’s liberty for the purpose of obtaining a financial
gain.” (People v. Greenberger (1997) 58 Cal.App.4th 298, 367 (Greenberger).)
The definition of “reward” provided in the challenged instruction, CALCRIM
No. 1202, was taken from Greenberger, which held “that the word ‘reward’ is not a
technical term requiring separate definition for the jury.” (Greenberger, supra,
58 Cal.App.4th at p. 367.) The court explained that the California statute relating
to aggravated kidnapping is based upon the federal Lindbergh Law enacted in 1932,
and that a reward includes something offered or given for some service or attainment.
(Id. at pp. 367-368.) Because “reward” would be commonly understood by persons
of ordinary intelligence, there was no error in failing to define the term for the jury.
(Id. at p. 368.)
Defendants argue that “Greenberger was wrongly decided, or at least has been
overextended in its application.” We disagree. Greenberger correctly held that the jury
need not be instructed on the definition of “reward” because it has a common meaning
that would be understood by the average person. However, this does not mean that a trial
14
court cannot give the jury that common meaning as part of the aggravated kidnapping
instruction. In this context, “reward” means something given in exchange for an action
or service, whether good or evil. As defendants note, that could include payment from a
victim’s family or associates to secure a victim’s release, but it also includes the payment
of money from Manor to Gray in exchange for Gray’s action or service in kidnapping the
victim. Regardless of where the money came from, Gray received a reward in the form
of a cash payment for kidnapping Wright. And Manor aided and abetted that aggravated
kidnapping by hiring Gray to do it.
We also disagree with defendants’ conclusory assertion that the challenged
definition of “reward” renders the statute unconstitutionally vague. “ ‘The constitutional
interest implicated in questions of statutory vagueness is that no person be deprived of
“life, liberty, or property without due process of law,” as assured by both the federal
Constitution [citation] and the California Constitution [citation]. Under both
Constitutions, due process of law in this context requires two elements: a criminal
statute must “ ‘be definite enough to provide (1) a standard of conduct for those whose
activities are proscribed and (2) a standard for police enforcement and for ascertainment
of guilt.’ ” [Citations.]’ [Citation.]” (People v. Morgan (2007) 42 Cal.4th 593, 605.)
There is a “ ‘strong presumption that legislative enactments “must be upheld unless
their unconstitutionality clearly, positively, and unmistakably appears. [Citations.]
A statute . . . cannot be held void for uncertainty if any reasonable and practical
construction can be given to its language.” ’ [Citation.]” (Ibid.) Greenberger provides
such a construction for the statutory term reward, and we agree with that construction.
The fact that it encompasses defendants’ conduct does not make the statute
unconstitutionally vague.
V
Defendants further assert that their privilege against self-incrimination was
violated when Barnard testified that defendants “know what happened.”
15
Barnard was granted immunity for her truthful testimony. During cross-
examination, Manor’s counsel asked whether she would be prosecuted for perjury if her
testimony was not what the prosecutor expected. Barnard responded that if she did not
“tell the truth and stick to the terms” of the immunity agreement, “then . . . immunity is
not granted.” Manor’s counsel then asked: “Who defined the truth?” Barnard answered:
“I know what happened and these gentlemen (indicating) know what happened.” At the
next recess, Gray’s counsel objected to Barnard’s statement on the ground that it violated
Gray’s privilege against self-incrimination, arguing that Barnard inferred that Gray
“needs to testify, to tell the truth.” The trial court responded that it did not “see it that
way” and concluded the jury would not interpret the statement to imply that the
defendants had an obligation to testify.
In Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106] (Griffin), “the
United States Supreme Court held that the prosecution may not comment upon a
defendant’s failure to testify in his or her own behalf.” (People v. Bradford (1997)
15 Cal.4th 1229, 1339.) And although a prosecutor may comment “upon the state of the
evidence or upon the failure of the defense to introduce material evidence or to call
anticipated witnesses,” he or she “may commit Griffin error [by arguing] to the jury that
certain testimony or evidence is uncontradicted, if such contradiction or denial could be
provided only by the defendant, who therefore would be required to take the witness
stand.” (Ibid., italics omitted.)
Defendants argue Barnard’s statement amounted to Griffin error. However,
“there is no California authority supporting [their] claim that a witness’s testimony
concerning a defendant testifying constitutes Griffin error.” (People v. Noriega (2015)
237 Cal.App.4th 991, 1003 (Noriega).) Indeed, in Noriega, although the defendant
forfeited his claim that a witness’s testimony violated Griffin, the appellate court
addressed the issue under the rubric of ineffective assistance of counsel and concluded
“reasonably competent counsel would not have raised a Griffin error objection” to similar
16
witness testimony because Griffin error does not extend to witness testimony, as opposed
to prosecutorial comment. (Ibid.)
Nevertheless, defendants urge this court to follow two federal decisions, United
States v. Sylvester (5th Cir. 1998) 143 F.3d 923 and United States v. Rocha (5th Cir. 1990)
916 F.2d 219, holding that a witness’s comment on a defendant’s failure to testify can
amount to Griffin error. The same argument was made and rejected in Noriega. We
agree with the Noriega court’s assessment that those federal decisions merely cite to
Griffin, “without a pinpoint cite, for authority that a witness’s comment can constitute
Griffin error, but Griffin does not stand for that proposition.” (Noriega, supra,
237 Cal.App.4th at p. 1003.) As in Noriega, we “decline to extend Griffin beyond
its plain language to include a witness’s testimony.” (Ibid.)
VI
In addition, defendants contend the trial court erred in admitting Gray’s
incriminating statements against Manor under Evidence Code section 1230 without
redacting them to exclude reference to Manor.2
A
The People moved in limine to admit (1) Gray’s letter to Manor demanding
payment for delivering him revenge, (2) Gray’s statement to Barnard that he brought
Wright to Manor but Manor did not follow through on his promise to pay him, (3) Gray’s
statements to his wife during the jailhouse visit admitting that he used the van to clean up
2 Gray’s joinder indicated that he joined Manor’s appellate arguments generally and as
specifically set forth in the joinder letter. But he also indicated he was joining in
“aspects” of Manor’s arguments. As Gray acknowledged, “each appellant must spell out
exactly how the error caused a miscarriage of justice.” Gray does not do so with respect
to the incriminating statements contention and the contention involving omission of
Gray’s name, but in any event, we do not perceive any prejudice flowing to Gray from
the admission of his own statements against Manor, or in the omission of his name from
CALCRIM No. 334.
17
the scene and that Manor took advantage of Gray’s need for money, and (4) Gray’s
statements to his cellmate Mitchell admitting that he kidnapped Wright in exchange for
payment, that Manor gave him less than he was promised, that plastic was laid out ahead
of his arrival with Wright, and that Gray was present when Manor killed Wright by
poisoning him. The People argued the statements were admissible under Evidence Code
section 1230 as statements against Gray’s penal interest and that redaction was not
required. Manor moved to exclude the statements.
The trial court separately analyzed each statement and admitted them under
Evidence Code section 1230 against both Gray and Manor without redaction. Because
we are reviewing the trial court’s ruling, not its reasoning, we need not set forth that
reasoning in detail. (See People v. Brooks (2017) 3 Cal.5th 1, 39.) To provide context,
however, we note that the trial court concluded: “[I]n sum, after considering each
statement individually and the total context in which it was made and the context of all
the other statements, . . . even if they contain slight portions that might not be
independently disserving of [Gray’s] penal interests, they are still not self-serving but,
rather, inextricably tied and part of a specific statement against penal interest such that a
reasonable person in [Gray’s] position would not have made the statements unless he
believed them to be true.”
B
“Although hearsay statements are generally inadmissible under California law
(Evid. Code, § 1200, subd. (b)), the rule has a number of exceptions. One such exception
permits the admission of any statement that ‘when made, was so far contrary to the
declarant’s pecuniary or proprietary interest, or so far subjected [the declarant] to the risk
of civil or criminal liability, . . . that a reasonable [person] in [the declarant’s] position
would not have made the statement unless he [or she] believed it to be true.’ (Evid. Code,
§ 1230.) As applied to statements against the declarant’s penal interest, . . . the rationale
underlying the exception is that ‘a person’s interest against being criminally implicated
18
gives reasonable assurance of the veracity of [the] statement made against that interest,’
thereby mitigating the dangers usually associated with the admission of out-of-court
statements.” (People v. Grimes (2016) 1 Cal.5th 698, 710-711 (Grimes).)
“To demonstrate that an out-of-court declaration is admissible as a declaration
against [penal] interest, ‘[t]he proponent of such evidence must show that the declarant is
unavailable, that the declaration was against the declarant’s penal interest when made and
that the declaration was sufficiently reliable to warrant admission despite its hearsay
character.’ [Citation.]” (Grimes, supra, 1 Cal.5th at p. 711.)
There is no dispute that Gray was unavailable as a witness, having invoked
his Fifth Amendment right not to incriminate himself. (See People v. Duarte (2000)
24 Cal.4th 603, 609-610 (Duarte); Evid. Code, § 240, subd. (a)(1).) As for the remaining
requirements, Manor argues the trial court should have required redaction of the portions
of Gray’s statements that implicated Manor because they were not reliable and were not
specifically disserving to Gray’s penal interests.
“ ‘In determining whether a statement is truly against [the declarant’s penal]
interest . . . and hence is sufficiently trustworthy to be admissible, the court may take into
account not just the words but the circumstances under which they were uttered, the
possible motivation of the declarant, and the declarant’s relationship to the defendant.’
[Citation.]” (Grimes, supra, 1 Cal.5th at p. 711.) “Ultimately, . . . ‘whether a statement
is self-inculpatory or not can only be determined by viewing it in context.’ [Citation.]”
(Duarte, supra, 24 Cal.4th at p. 612.)
Evidence Code section 1230 “does not authorize the admission of ‘those
portions of a [declarant’s] confession that are self-serving or otherwise appear to shift
responsibility to others.’ [Citation.]” (People v. Gallardo (2017) 18 Cal.App.5th 51,
71 (Gallardo).) For example, “ ‘a hearsay statement that is facially inculpatory of
the declarant may, when considered in context, also be exculpatory or have a net
exculpatory effect.’ [Citation.]” (Ibid.) That was the situation in Duarte, where the
19
declarant’s post-arrest statements to police “tended sympathetically to describe [his own]
participation in the shooting” while “minimiz[ing] his responsibility” and “imply[ing]
that others . . . should bear a greater share of the responsibility.” (Duarte, supra,
24 Cal.4th at p. 613.) Similarly, in Gallardo, the declarant provided generally
incriminating statements to two paid informants, but shifted most of the blame to two
codefendants. The appellate court held the declarant’s statements about his codefendants’
conduct were too self-serving and unreliable to qualify as statements against the
declarant’s penal interest. (Gallardo, at p. 74.)
However, the against-penal-interest exception does allow “the admission of those
portions of a confession that, though not independently disserving of the declarant’s penal
interests, also are not merely ‘self-serving,’ but ‘inextricably tied to and part of a specific
statement against penal interest.’ [Citation.]” (Grimes, supra, 1 Cal.5th at p. 715.) For
example, in People v. Samuels (2005) 36 Cal.4th 96 (Samuels), the declarant said to an
acquaintance that he killed the victim with the help of another person and that the
defendant paid him to do so. (Id. at p. 120.) The California Supreme Court held the
statement “was properly admitted as a statement against penal interest.” (Ibid.)
Rejecting the argument that the “assertion ‘that [defendant] had paid him’ for the killing
was either collateral to his statement against penal interest, or an attempt to shift blame,”
the court explained: “This admission, volunteered to an acquaintance, was specifically
disserving to [the declarant’s] interests in that it intimated he had participated in a
contract killing—a particularly heinous type of murder—and in a conspiracy to commit
murder. Under the totality of the circumstances presented here, we do not regard the
reference to defendant incorporated within this admission as itself constituting a
collateral assertion that should have been purged from [the evidence]. Instead, the
reference was inextricably tied to and part of a specific statement against penal interest.”
(Id. at pp. 120-121.)
20
“We review a trial court’s decision whether a statement is admissible under
Evidence Code section 1230 for abuse of discretion.” (Grimes, supra, 1 Cal.5th at
p. 711.)
C
Beginning with Gray’s letter to Manor, it was written by a co-conspirator in a
kidnapping and murder to another co-conspirator in those crimes. The letter was plainly
self-inculpatory. Far from attempting to exculpate himself, Gray demanded payment for
his vital role in the conspiracy, “hand deliver[ing]” Manor’s “revenge.” Gray said he did
“more than [his] job” and also said he had “everything handled” and made sure “it all
point[ed] to [Gray].” Although those statements also inculpated Manor because they
imply that Manor agreed to pay Gray for his services, that implication is inextricably tied
to Gray’s self-inculpatory statements demanding payment for his role in the conspiracy to
kidnap and murder Wright. (See Samuels, supra, 36 Cal.4th at pp. 120-121.)
Turning to Gray’s statements to Barnard, Gray told Barnard he brought Wright to
Manor but Manor did not pay him. Those statements admit Gray’s role as the kidnapper
in a kidnapping for hire. As with the letter to Manor, they also inculpate Manor as the
person who hired Gray to kidnap Wright. But again, that is an inextricable part of the
self-inculpatory statements. Like Samuels, and unlike Duarte and Gallardo, Gray’s
statements to Barnard did not tend to describe his role in a sympathetic light, or minimize
his responsibility, or shift blame to Manor. Gray admitted kidnapping Wright for Manor,
and he wanted to be paid for it. The statements are plainly self-inculpatory, even though
they also implicated Manor.
Gray’s statements to his wife following his arrest were also self-inculpatory in
nature. Gray admitted he used the van to clean up the scene, and he was returning the
van when he was arrested. Gray said everyone knew who wanted Wright, referred to the
car crash that injured Manor and his wife, and said “he couldn’t do it himself.” In those
statements, Gray admitted cleaning up the scene, and implied that he kidnapped Wright to
21
help Manor because Manor wanted Wright and could not kidnap Wright himself. Viewed
in context, the statements implicated both Gray and Manor in a conspiracy to kidnap and
murder Wright, and the statements implicating Manor were inextricably tied to the self-
inculpatory statements.
Regarding Gray’s statements to his cellmate, Gray told Mitchell that Manor
offered to pay him to bring Wright to him. Gray brought Wright to Manor, where Manor
was waiting for him with plastic laid out on the floor. Gray told Mitchell that Manor
poisoned Wright. Manor and Nyquist then “[c]ut the body up.” Gray was not there for
“the chopping up,” but he was there for the poisoning. Gray told Mitchell that Manor
agreed to pay him $10,000, but only gave him about $1,000. Gray felt “burned” by
Manor. Those statements were the most self-inculpatory of all. Gray also provided the
most detail regarding Manor’s role in the events, directly inculpating him in the murder.
However, at no point did Gray attempt to minimize his own role. Again, he complained
that he did not get paid what he was owed for the kidnapping. He implied that the
murder was planned ahead of time, and he did not claim to be surprised by the fact that
plastic was laid out, or that Manor killed Wright in Gray’s presence, or that the body was
later dismembered. As in Samuels, the portions implicating Manor do not reduce Gray’s
culpability and are inextricably tied to Gray’s statements implicating himself in the
conspiracy to kidnap and murder Wright. (See Samuels, supra, 36 Cal.4th at pp. 120-
121.)
Finally, in addition to the requirement that the statements be against the declarant’s
penal interest, they also “ ‘must be clothed with indicia of reliability.’ ” (Duarte, supra,
24 Cal.4th at p. 614, quoting People v. Shipe (1975) 49 Cal.App.3d 343, 354.) None of
the challenged statements were made in circumstances indicating a lack of reliability,
such as “where the declaration is made to authorities after the declarant has been arrested
and charged with a serious offense or after he has pled guilty to a lesser offense and is
awaiting sentencing and where . . . the statement is exculpatory in the sense that the
22
declarant has blamed a coparticipant for the commission of the greater offense while
admitting complicity to some lesser degree.” (Shipe, at p. 354.) Instead, the statements
in Gray’s letter to Manor were made to a co-conspirator, demanding payment for Gray’s
role in the conspiracy, before the crimes came to light. His statements to Barnard were
made to a romantic partner, also before the crimes came to light. And Gray’s statements
to his wife and cellmate, while made after he was found with incriminating evidence in
his van, were nevertheless made to people he appeared to trust, and not made during
questioning by police, as in Duarte and Shipe, or to paid informants, as in Gallardo. (See
also People v. Cortez (2016) 63 Cal.4th 101, 128 [“nothing in the attendant circumstances
undermines the trial court’s conclusion that [the declarant’s] statements were truly
disserving of his interests”].)
VII
Defendants claim the trial court erred in omitting Gray’s name from the
CALCRIM No. 334 instruction on accomplice testimony. They acknowledge, however,
that the People will be able to cite cases suggesting strongly that their argument is wrong.
Section 1111 provides in relevant part: “A conviction [cannot] be had upon the
testimony of an accomplice unless it be corroborated by such other evidence as shall tend
to connect the defendant with the commission of the offense . . . . [¶] An accomplice
is . . . defined as one who is liable to prosecution for the identical offense charged against
the defendant on trial in the cause in which the testimony of the accomplice is given.”
“If sufficient evidence is presented at trial to justify the conclusion that a witness
is an accomplice, the trial court must so instruct the jury, even in the absence of a request.
[Citation.] Of course, an accomplice has a natural incentive to minimize his own guilt
before the jury and to enlarge that of his cohorts; accordingly, the law requires an
accomplice’s testimony be viewed with caution to the extent it incriminates others.
[Citations.]” (People v. Brown (2003) 31 Cal.4th 518, 555 (Brown).)
23
There can be no doubt that Gray and Manor were accomplices. And although
Gray did not take the witness stand against Manor at trial, “ ‘[t]estimony,’ as used in
section 1111, includes ‘ “all out-of-court statements of accomplices . . . used as
substantive evidence of guilt which are made under suspect circumstances. The most
obvious suspect circumstances occur when the accomplice has been arrested or is
questioned by the police.” ’ [Citation.]” (Brown, supra, 31 Cal.4th at p. 555, italics
omitted.) Gray’s out-of-court statements were used as substantive evidence of Manor’s
guilt. As we explained in the preceding section of this opinion, they implicated both
Gray and Manor in the kidnapping and conspiracy. However, as we also explained, they
were not “ ‘ “made under suspect circumstances.” ’ ” (Ibid.)
“ ‘The usual problem with accomplice testimony—that it is consciously self-
interested and calculated—is not present in an out-of-court statement that is itself
sufficiently reliable to be allowed in evidence.’ [Citation.]” (Brown, supra, 31 Cal.4th at
pp. 555-556, italics omitted.) In Brown, the California Supreme Court held that an
accomplice’s out-of-court statements that were admitted as declarations against his penal
interest were “made under conditions sufficiently trustworthy to permit their admission
into evidence despite the hearsay rule,” and “[t]herefore, no corroboration was necessary,
and the [trial] court was not required to instruct the jury to view [his] statements with
caution and to require corroboration.” (Id. at p. 556.) So too here.
In any event, as in Brown, any assumed error “was manifestly harmless. ‘A trial
court’s failure to instruct on accomplice liability under section 1111 is harmless if there is
sufficient corroborating evidence in the record. [Citation.] “Corroborating evidence may
be slight, may be entirely circumstantial, and need not be sufficient to establish every
element of the charged offense. [Citations.]” . . . The evidence “is sufficient if it tends
to connect the defendant with the crime in such a way as to satisfy the jury that the
accomplice is telling the truth.” [Citation.]’ [Citation.]” (Brown, supra, 31 Cal.4th at
p. 556.) Gray’s statements were corroborated by other evidence, including testimony
24
from various witnesses who testified to Manor’s own incriminating statements, e.g.,
that “he got Ray Wright.”
VIII
Finally, each defendant asserts that cumulative prejudice requires reversal.
However, having concluded that each of defendants’ contentions was either forfeited
or lacked merit, and the one forfeited contention did not result in ineffective assistance
of counsel because the failure to object was harmless, there is no cumulative prejudice
to assess.
DISPOSITION
The judgments are affirmed.
/S/
MAURO, J.
We concur:
/S/
HULL, Acting P. J.
/S/
DUARTE, J.
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