Opinion
B322502
10-18-2024
THE PEOPLE, Plaintiff and Respondent, v. GREGORY BARANOVSKY, Defendant and Appellant.
Coleman & Balogh and Benjamin L. Coleman for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA465662 Eleanor J. Hunter, Judge. Affirmed.
Coleman & Balogh and Benjamin L. Coleman for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and David F. Glassman, Deputy Attorneys General, for Plaintiff and Respondent.
STONE, J.
Gregory Baranovsky appeals from the judgment entered after a jury found him guilty of first degree murder (Pen. Code, § 187, subd. (a)), determining he personally shot and killed the victim (§ 12022.53, subd. (b)-(d)) while committing a burglary (§§ 190.2(a)(17)(G), 459, 460).
Undesignated statutory references are to the Penal Code.
Baranovsky contends the trial court erred in denying his motion to dismiss brought under Brady v. Maryland (1963) 373 U.S. 83 (Brady) and California v. Trombetta (1984) 467 U.S. 479 (Trombetta) based on the prosecution's untimely disclosure of a third-party confession. He further asserts the prosecution committed prejudicial misconduct by (1) discussing in its opening statement Baranovsky's confession that never came into evidence because the witness to the confession refused to testify; and (2) asking leading questions to the recalcitrant witness that were tantamount to damning direct testimony. He also contends the trial court erred by (1) failing to disclose impeachment evidence regarding this same witness that was located in a sealed transcript and (2) admitting statements by this witness that were inadmissible hearsay. He argues the cumulative effect of the errors requires reversal of the judgment.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Evidence at Trial
1. The burglaries and shooting
In February 2018, Sheila Villanueva and Jessica Snider lived in Apartment 307 of an apartment building on Argyle Avenue in Hollywood. At the time, Snider was dating Jesus Aispuro.
On the night of February 11, 2018, Villanueva, Snider, Aispuro, and Baranovsky were in Apartment 307. Baranovsky was carrying a gun and waving it around. He said someone had stolen his laptop and taken his shoes. He was upset and had been using drugs.
Around 3:00 a.m. on February 12, various surveillance cameras captured Baranovsky and Aispuro leaving the apartment and proceeding to burglarize two nearby apartment buildings to steal from their community mailboxes.
Surveillance footage showed that later that day, Baranovsky and Aispuro returned to the parking garage at the Argyle Avenue apartment building. Shortly after 2:00 p.m., Aispuro left Baranovsky in the garage before Baranovsky, alone, took an elevator up to the second floor of the building.
At 2:12 p.m., Patricia Lynn also took an elevator to the second floor. Lynn, who lived in the building with her husband Terry, was the longtime property manager. She went to the second floor to deliver paperwork to tenants. While standing outside Apartment 215, Lynn heard what sounded like an explosion and then saw a man exit Apartment 212 three to five seconds later.
Lynn observed the man for two to three seconds as he made eye contact with her before he turned his back and ran down the hall and out a door leading to the building's back stairs. Lynn estimated the man was between five feet eight inches and six feet tall, 180 to 200 pounds, and 35 to 45 years old. She described him as Caucasian, with round cheeks, a rather stocky build, and wearing a navy blue bomber-type jacket with khaki pants. Lynn observed the man fiddling with his jacket, either putting his hand into the jacket or taking it out, while he headed down the hallway. She estimated he was in her sight for approximately 30 seconds.
Lynn called her husband and paced back and forth in the hallway while waiting for his arrival. During this time, she did not see or hear anyone else exit Apartment 212, although there were periods of time in which she could not see the apartment door.
Terry, who was in the couple's fourth floor apartment, immediately ran to the second floor after receiving his wife's call. He estimated it took him less than a minute to get to Apartment 212.
Upon entering Apartment 212, Terry found Yuvini Cortez, a building maintenance worker, suffering from a gunshot wound. The apartment had been ransacked. Paramedics pronounced Cortez dead upon their arrival to the scene. An autopsy revealed he had died from a single gunshot wound to the back.
At the time, Cortez was using Apartment 212, which was vacant, as a workshop and storage space for materials and tools, and he would shower there before going home. On February 12, Cortez was working alone.
2. The aftermath of the shooting
Surveillance cameras recorded a man identified as Baranovsky quickly exiting from the apartment building's back staircase and hurriedly walking away from the building minutes after the shooting. Baranovsky's cellphone and social media activity placed him in the building at the time of the shooting and along the same route the surveillance cameras showed him thereafter taking. Later that afternoon, Baranovsky messaged a friend that he needed to be picked up, and it was "an emergency."
Shortly after the shooting, a man walking his dog spotted a black semi-automatic handgun on the ground behind some trash bins within 150 feet of the apartment building. Ballistics analysis showed this gun to be the one used to kill Cortez. A few weeks before February 12, Baranovsky had posted on social media a photograph of a gun that resembled the one found at the crime scene. Location data from Baranovsky's social media account and surveillance videos showed Baranovsky's flight path crossed where the gun was found.
Two days after the shooting, the police showed Villanueva a photograph of the recovered gun. Villanueva stated she was not sure if it was the same gun she saw Baranovsky with the night before the shooting, but that it could have been. As one reason for her uncertainty, Villanueva recalled Baranovsky handling a silver gun whereas the photograph showed a black gun.
Kathleen Darnell was driving in the surrounding neighborhood on the day of the murder and at around 2:30 p.m. observed a man whose behavior and demeanor suggested he was fleeing from something. Darnell explained the man caught her attention when he emerged from between two parked cars and proceeded to bolt across the street in front of her car. Darnell reported making eye contact with the man, who was "mostly bald," had a light complexion, and was of possible eastern European ancestry. Darnell estimated the man to be five feet 10 or 11 inches tall, "a solid guy but not fat," and in his mid to late 30s. He was shirtless but wearing dark brown pants and carrying what looked to be a dark blue shirt in his hand. Darnell noticed the man had a dark circular or oval tattoo on his upper left arm. Darnell estimated she had the man in her sight for a total of 10 seconds.
Darnell did not definitively identify Baranovsky in a photographic lineup shown to her on February 15, but she picked out Baranovsky as most closely matching the man she had seen. She explained she was focused on the body, skin tone, hair, and facial hair of the man she had seen, none of which she was supposed to consider for purposes of the lineup. Darnell also did not recognize a photograph of a tattoo on Baranovsky's upper left arm. Although the arm, the location on the arm, and some other features of the tattoo were consistent with her memory, Darnell was not certain it was the same tattoo.
When the police showed Lynn a photograph of Baranovsky riding the elevator on the day of the shooting, she asserted he was not the person she saw leaving Apartment 212. She indicated the man in the photograph was wearing a different jacket and appeared to have a receded hairline that she did not remember. Lynn likewise did not identify Baranovsky when shown a photographic lineup a few days later.
At the time of the shooting, Baranovsky was 39 years old, and approximately five feet eight inches tall and 190 pounds. He had light skin with brown hair and a tattoo on each upper arm.
3. The arrests of Aispuro, Snider, and Baranovsky
On February 14, Aispuro and Snider were arrested at Snider's apartment. Officers detained the pair in a police car equipped with a hidden recording device. The officers placed a photograph of Baranovsky in the front seat with the aim of stimulating discussion about the shooting. Aispuro noticed the photograph and identified Baranovsky. Snider agreed it was Baranovsky "from that night that fool got shot." Aispuro and Snider each then said, "That fool did it."
The next day, on February 15, the police arrested Baranovsky. He was in possession of three cell phones and a pair of sunglasses that looked similar to ones surveillance footage showed him wearing on February 12. Baranovsky had visible scratches on his neck and on his left buttock and lower-back area. Genetic material recovered from under Cortez's fingernails matched Baranovsky's DNA profile.
4. Zamora's account of third-party confession by Finch
At the preliminary hearing, the defense called Alejandro Zamora, who testified that a person named Steve Finch had confessed to shooting Cortez during a burglary of Apartment 212 with Baranovsky. Zamora was in state prison at the time of the trial. Despite the defense's request that he be transported to court to testify, Zamora was not brought to court. The prosecution stipulated that Zamora's full preliminary hearing testimony could be read to the jury.
In that preliminary hearing testimony, Zamora stated that on April 1, following his arrest on a vehicle theft charge, he informed the police he had information regarding Cortez's shooting. In a subsequent interview with Detective Tyler Adams, Zamora explained he was friends with Villanueva, Snider, Aispuro, and Baranovsky, and that he was present in Villanueva and Snider's apartment the day before the shooting. Finch also knew this circle of friends. Zamora stated that several weeks after the shooting, Finch confessed to him that he had shot Cortez. Zamora stated he had known Finch for two or three years because they had some common friends and interests, but he had distanced himself from Finch "because of the way [Finch] acts, his temper, always trying to get into trouble." Zamora explained he had commented on Finch's social media post a few days or weeks after the shooting, and then Finch sent him his number and they had a quick conversation. Several days later, Finch called him back and the pair spoke for "an hour maybe."
During their second call, Finch started explaining certain details about the shooting, and Zamora asked Finch what he was getting at. According to Zamora, Finch replied, "Dude, I'm the one who did it," and he told Zamora he was the one who "pulled the trigger." Zamora first testified that Finch did not tell him Baranovsky was also present for the shooting, but after his recollection was refreshed with the transcript of his police interview, Zamora said Finch told him Baranovsky was with him. Specifically, according to Zamora, Finch told him that on the day of the shooting he ran into Baranovsky in a stairwell outside of Villanueva and Snider's apartment and persuaded Baranovsky to enter Apartment 212 with him to steal something. Finch told Zamora that inside the apartment a "push and shove type situation" occurred between one of them and Cortez before Finch shot the victim, tossed the gun to Baranovsky, and took off. Finch told Zamora he fled by running down the hallway and into the stairwell he had met Baranovsky in, before exiting out the back of the building. Zamora recalled walking the same route while on the phone with Finch and seeing caution tape still on the door of the apartment where the shooting occurred.
Zamora described Finch as in his early or mid-thirties, with a military build, and Caucasian but also "looking Hispanic."
Zamora stated that when he spoke with Detective Adams he was aware Baranovsky had been arrested. He explained he came forward with the information about Finch's confession under the belief the police were searching for a second suspect.
Zamora informed Adams he could likely get Finch to repeat his confession and offered to contact Finch in the detective's presence. Adams did not take Zamora up on this offer.
At trial, Adams testified that later in April 2018, he obtained Zamora's phone records. They showed Finch and Zamora had a call lasting around 45 minutes to an hour a few weeks before Zamora's interview with Adams. Despite some failed attempts, Adams had not yet made contact with Finch when he learned on June 17 that Finch had died the previous day from a suspected drug overdose.
Adams testified he did not find Zamora's police statement regarding Finch's confession to be credible. Adams explained he had been skeptical when speaking with Zamora because individuals who give police statements in jail often have a motive. The detective was also "t[aken] aback" by Zamora's claim that the police were looking for another suspect besides Baranovsky because that was not the case. Adams later explained that Zamora's testimony regarding Finch's claimed flight path from Apartment 212 was "physically impossible" based on the layout of the building.
Adams also testified he reviewed Finch's social media records, which he described as containing "a lot of stories that seemed fantastical." Based on Finch's social media activity, Adams opined Finch "wanted people to believe he was a bad-ass." In his messages, Finch claimed in graphic detail that he shot "some Crip drug dealer" twice in the chest. Finch asserted the victim was wearing a bulletproof vest and had survived the shooting after receiving surgery. Adams was not able to find a hospital notification alerting the police department about a shooting matching Finch's description. Moreover, Adams could not verify the purported shooting with a detective who covered the Crips gang that Finch had identified.
Adams also described specific social media posts in which Finch falsely claimed to be former a Green Beret and an Army Ranger with combat deployments in Iraq and Afghanistan. Finch further falsely claimed he had "purple hearts [and] bronze stars."
In addition, Finch had posted on social media that he had been a Los Angeles Police Department officer before he was fired "for robbing drug dealers and beating gangbangers"; that he later became "hooked" on meth and "picked up a couple felony [sic] and a strike"; that he went to the University of Southern California for law school but was expelled for drugs after which he graduated from Southwestern Law School and passed the bar; that he was "disbarred and banned from practicing law in any state for five years"; and that thereafter he "hit the streets, and started being a menace to society in the County of Los Angeles." Records showed Finch did have a number of felony convictions and was a graduate of Southwestern. But the parties also stipulated he had never received a prior strike conviction, never been employed as a police officer, and never attended the University of Southern California.
B. Defense Theory and Partial Concessions at Trial
Baranovsky based his defense at trial on Zamora's account of Finch's confession. During the trial, Baranovsky personally stipulated on the record that he understood and agreed with the tactical decision to concede, by adopting the testimony of Zamora as true, that he entered Apartment 212 with Finch to commit the burglary that resulted in Cortez's death.
In closing arguments, defense counsel argued that "Finch's confession raises a reasonable doubt as to who fired the gun that killed Mr. Cortez." Counsel acknowledged that surveillance footage captured Baranovsky fleeing the apartment building, and that "Baranovsky has his finger in almost every aspect of all of the evidence" from the murder scene, "except for one thing. They don't have his finger on the murder weapon. All of this other surveillance stuff, leaving the scene of the crime, all of that is not contested. We put on the evidence that put Mr. Baranovsky in that apartment, in [Apartment] 212, by putting on the Finch confession, . . . [but] in all of that evidence, you won't find anything that says, 'Mr. Baranovsky pulled the trigger that killed'" Cortez. Counsel further conceded Finch and Baranovsky went to the apartment to "steal some stuff," and so "there's a burglary going on there." He repeated, "We have both of them in there, apparently looking around for something to steal. It just boils down to that." Counsel conceded Baranovsky struggled with Cortez, and that Baranovsky was scratched by Cortez. He further conceded that Cortez was then shot by Finch in the course of the burglary. Baranovsky's counsel argued that despite Baranovsky's involvement, which was not contested, he was not a "major participant" in the burglary so as to be liable under a felony-murder theory.
C. Jury Instructions, Verdict, and Sentence
The jury was instructed on various alternative theories of murder. The court specifically instructed the jury on first degree premeditated murder, first degree felony murder as the actual killer, first degree felony murder as a major participant in a burglary who acted with reckless indifference to human life, second degree express malice murder, and second degree implied malice murder. The court further instructed the jury with the special circumstances allegation that the murder was committed while Baranovsky was engaged in a burglary, in violation of section 190.2, subdivision (a)(17)(G). The court also gave the jury instructions for special firearms allegations under sections 12022.53, subdivisions (b), (c), and (d).
The jury found Baranovsky guilty of first degree murder, and found true the special allegation that the murder was committed during the commission of a burglary (§ 190.2, subd. (a)(17)(G)). The jury also found true all the special firearms enhancements, including that Baranovsky personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)).
The court sentenced Baranovsky to life in prison without the possibility of parole. The court struck the section 12022.53, subdivision (d), enhancement, and stayed the enhancements under subdivisions (b) and (c) of the same section.
Baranovsky timely appealed from the judgment.
DISCUSSION
A. Alleged Brady and Trombetta/Youngblood Violations
Before trial, Baranovsky moved to dismiss the case based on the prosecution's failures to (1) timely disclose the information from Zamora regarding Finch's purported confession, in violation of Brady, supra, 373 U.S. 83; and (2) preserve additional evidence regarding Finch's involvement pursuant to Trombetta, supra, 467 U.S. 479 and Arizona v. Youngblood (1988) 488 U.S. 51 (Youngblood). Baranovsky sought, if the court did not dismiss the case, a curative jury instruction that "the prosecution's misconduct alone is sufficient to support an acquittal" and limitations on challenges to Zamora's and Finch's credibility at trial. The court denied Baranovsky's Brady claim, ruling that, even if the prosecution's disclosure of the information was untimely, there was no showing of prejudice because Baranovsky was able to present evidence of Finch's confession through Zamora's testimony. The trial court also rejected Baranovsky's Trombetta/Youngblood claim based on a lack of showing that any evidence had been destroyed by an officer acting in bad faith. Baranovsky contends the trial court's rulings were erroneous.
1. Pertinent facts and procedural history
Detective Adams learned of Finch's alleged confession through his interview of Zamora on April 2, 2018. At that time, there was no suspicion a second suspect was involved in the shooting, and Finch was not on Adams's radar. Three days later, Adams interviewed Snider, who confirmed Zamora had been at her apartment the night before the murder but denied knowing Finch.
Two weeks later, on April 17, the police requested a search warrant for Finch's social media records. Using those records, the detective confirmed that Finch and Zamora were social media friends and that Finch frequently possessed guns and boasted of shooting people and committing other violent acts. The records also showed Finch was in Los Angeles on the days before and after the shooting, although there was no information regarding his location on the day of the murder.
On April 19, Adams contacted Finch's probation officer, who provided the detective with two phone numbers for Finch. The detective did not attempt to call Finch, but on April 24 he mailed a notification of the search warrant to Finch's mother's house. On May 2, Finch left a message for the detective, stating he had received the notification. Adams made an unsuccessful attempt to return Finch's call.
On May 7, Adams sought to verify the truth of Finch's social media claim that he shot a member of a particular gang. A gang enforcement officer confirmed a gang member had been shot around the time in question but doubted Finch was responsible.
On May 23, Adams requested a search warrant for Finch's phone records. The phone records showed Zamora and Finch had a lengthy conversation on March 16.
On June 17, Adams learned that Finch had passed away the previous day from a suspected drug overdose. At this point, two and a half months had transpired since Adams interviewed Zamora.
Notwithstanding earlier discovery requests from the defense and production of other discovery by the prosecution, the prosecution did not disclose information about Finch's confession until August 17-over four months after Adams interviewed Zamora and two months after Finch's death. Specifically, the prosecution produced the search warrant request for Finch's social media records, which described as part of the probable cause showing that "Finch further advised [Zamora] that it was him that had shot the victim and gave the handgun to Baranovsky immediately after." At that time, the prosecution also produced notes indicating Adams had interviewed Zamora and Snider with regard to Finch. The prosecution finally produced a recording of Zamora's interview on November 8, 2018.
During the preliminary hearing, on May 8, 2019, the defense called Zamora as a witness and, as discussed, he testified at length that Finch had confessed to shooting Cortez during a burglary he committed with Baranovsky.
2. The trial court did not err in denying the Brady claim
"In Brady, the United States Supreme Court held 'that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.' (Brady, supra, 373 U.S. at p. 87.) The high court has since held that the duty to disclose such evidence exists even though there has been no request by the accused (United States v. Agurs (1976) 427 U.S. 97, 107), that the duty encompasses impeachment evidence as well as exculpatory evidence (United States v. Bagley (1985) 473 U.S. 667, 676 . . .), and that the duty extends even to evidence known only to police investigators and not to the prosecutor (Kyles v. Whitley (1995) 514 U.S. 419, 438 . . .). Such evidence is material' "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different."' (Id. at p. 433.)" (People v. Salazar (2005) 35 Cal.4th 1031, 1042 (Salazar).)
"There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." (Strickler v. Greene (1999) 527 U.S. 263, 281-282; see People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 710.) "Prejudice, in this context, focuses on 'the materiality of the evidence to the issue of guilt or innocence.' [Citations.] Materiality, in turn, requires more than a showing that the suppressed evidence would have been admissible [citation], that the absence of the suppressed evidence made conviction 'more likely' [citation], or that using the suppressed evidence to discredit a witness's testimony 'might have changed the outcome of the trial' [citation]. A defendant instead 'must show a "reasonable probability of a different result." '" (Salazar, supra, 35 Cal.4th at p. 1043.) "The requisite 'reasonable probability' is a probability sufficient to 'undermine[ ] confidence in the outcome' on the part of the reviewing court." (In re Sassounian (1995) 9 Cal.4th 535, 544.)
Although most Brady claims are brought following a trial and conviction, the same standard applies when (as here) the alleged non-disclosure arises before trial: namely, "the prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant's right to a fair trial." (United States v. Agurs, supra, 427 U.S. at p. 108; see People v. Superior Court (Meraz) (2008) 163 Cal.App.4th 28, 51.) On appeal, the defendant bears the burden to establish all three components of a Brady violation. (Strickler v. Greene, supra, 527 U.S. at pp. 289, 291.) We review de novo whether such a violation occurred but give "great weight to any trial court findings of fact that are supported by substantial evidence." (People v. Letner and Tobin (2010) 50 Cal.4th 99, 176.)
The People do not contest on appeal that Zamora's information regarding Finch's alleged confession was favorable to the defense.
With regard to its suppression, despite Adams learning of Finch's alleged confession during Zamora's April 2 interview, the prosecution did not disclose that information until August 17 and failed to produce a recording of the interview until November 8. The People do not try to justify this delay. Rather, they argue the information cannot be considered suppressed because it was disclosed before the preliminary hearing and thus the trial as well.
While ordinarily evidence is not suppressed if it is disclosed in time for its use at trial, "when considering whether delayed disclosure rather than 'total nondisclosure' constitutes a Brady violation, 'the applicable test is whether defense counsel was "prevented by the delay from using the disclosed material effectively in preparing and presenting the defendant's case." '" (People v. Mora and Rangel (2018) 5 Cal.5th 442, 467.) In other words, the" '[d]isclosure, to escape the Brady sanction, must be made at a time when the disclosure would be of value to the accused.'" (People v. Superior Court (Meraz), supra, 163 Cal.App.4th at p. 51.)
Baranovsky contends that because Finch had passed away by the time the prosecution turned over the evidence, the defense lost the opportunity to investigate and develop evidence about Finch's alleged confession. He argues that, with earlier disclosure of Zamora's information about Finch's alleged confession, "there is a possibility that the jury could have heard a recording of Finch himself repeating the confession," which would have been "far more powerful and valuable" than Zamora's second-hand account. But if Finch was indeed the actual killer, Baranovsky knew that. At trial, Baranovsky conceded he was present at the scene of the homicide, and the defense theory (to which Baranovsky personally stipulated in court) was that Finch persuaded him to enter the apartment to commit a burglary and that Finch shot the victim and immediately threw the gun to Baranovsky. Thus, even before Adams interviewed Zamora, Baranovsky had the opportunity to develop evidence of Finch's involvement that he now claims was irretrievably lost because of the prosecution's suppression of Zamora's interview. (See People v. Zambrano (2007) 41 Cal.4th 1082, 1135, disapproved of on other grounds by People v. Doolin (2009) 45 Cal.4th 390 [holding no Brady violation where defense "had ample opportunity, on their own initiative, to obtain" evidence that was not turned over by the prosecution].)
Moreover, Baranovsky's suggestion that he could have secured a recording of Finch repeating his confession had he known Zamora's information sooner is "speculative at best." (People v. Whalen (2013) 56 Cal.4th 1, 65, disapproved on other grounds in People v. Romero and Self (2015) 62 Cal.4th 1, 44, fn. 17; see also Wood v. Bartholomew (1995) 516 U.S. 1, 6 [contention that "information, had it been disclosed to the defense, might have led respondent's counsel to conduct additional discovery that might have led to some additional evidence that could have been utilized" is mere speculation that does not establish a Brady violation].) First, it is speculative to assume any such recording could have been procured. Second, even if Finch had been contacted and a recording was made, it is speculative to assume Finch would have provided the same story that Zamora reported. In sum, even assuming the prosecution's improper suppression, Baranovsky cannot establish prejudice based on a speculative possibility of an opportunity that he already had the ability to pursue.
The jury here was permitted to hear the entirety of Zamora's lengthy testimony from the preliminary hearing regarding Finch's confession to him, and Baranovsky built his defense around that version of events. Baranovsky has failed "to show that the defense he presented at trial differed in any meaningful way from the defense he could have presented" if the defense had been able to follow up with Finch before his death. (United States v. Mason (D.C. Cir. 2020) 951 F.3d 567, 574 [where prosecution failed to disclose impeachment evidence to defense until after the source of the evidence had died, Brady claim failed because purported prejudice in lost opportunity to develop evidence was "simply too speculative to undermine our confidence in the outcome of the trial"].) In other words, Baranovsky cannot show a reasonable probability of a different outcome had the disclosure occurred sooner. (Salazar, supra, 35 Cal.4th at p. 1043.)
Because we conclude there was no prejudicial Brady violation, the trial court did not err in declining to order the alternative remedies sought by the defense for such a violation, i.e., a curative jury instruction and the preclusion of evidence pertaining to the credibility of Zamora and Finch.
While Baranovsky also argues the court improperly permitted Adams to testify at trial regarding his opinions of Zamora's and Finch's credibility, Baranovsky forfeited the issue because no objection was made to the prosecution's questions seeking the detective's opinions. (Evid. Code, § 353; People v. Parker (2022) 13 Cal.5th 1, 35 [failure to object before the trial court forfeits issue on appeal].) He likewise forfeited his contention that the prosecutor committed misconduct by asserting during closing arguments that Zamora was not credible and that Finch would have denied culpability if he had not died. (People v. Seumanu (2015) 61 Cal.4th 1293, 1328 [failure to make a timely objection to misconduct during closing argument "is a necessary prerequisite to preserve a claim of prosecutorial misconduct for appeal"].)
3. The trial court did not err in denying the Trombetta/Youngblood claim
" 'The state has a duty to preserve evidence that both possesses "an exculpatory value that was apparent before the evidence was destroyed" and is of "such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." '" (People v. Carrasco (2014) 59 Cal.4th 924, 960, quoting Trombetta, supra, 467 U.S. at p. 489.) If the exculpatory value of the evidence was not apparent before the evidence was destroyed or lost, a defendant can show a violation of due process only where authorities acted in bad faith in failing to preserve the potentially useful evidence. (Carrasco, at p. 960; accord, Youngblood, supra, 488 U.S. at p. 58.) We review a trial court's ruling on a Trombetta/Youngblood motion for substantial evidence. (People v. Montes (2014) 58 Cal.4th 809, 837 (Montes).)
Similar to his Brady claim, Baranovsky bases his Trombetta/Youngblood claim on the prosecution's responsibility for "lost evidence" of "potential recorded or other additional inculpatory statements made by Finch." (Italics added.) Baranovsky does not allege the prosecution destroyed or failed to preserve existing evidence. But due process does not generally require law enforcement to preserve evidence that is not in the state's possession. (Montes, supra, 58 Cal.4th at p. 837; People v. Velasco (2011) 194 Cal.App.4th 1258, 1263.) "It is axiomatic that the constitutional due process guaranty is a bulwark against improper state action.... If the state took no action, due process is not a consideration, because there is no 'loss of evidence attributable to the Government.'" (Velasco, at p. 1263.) "A contrary rule would make the state a caretaker for defendants['] exculpatory evidence even though the state did not control or possess the evidence." (Ibid.; see also Montes, at p. 837 [" 'The police cannot be expected to "gather up everything which might eventually prove useful to the defense."' "].)
Moreover, while courts have recognized there may be circumstances justifying sanctions based on a failure to collect evidence (Montes, supra, 58 Cal.4th at pp. 837-838; People v. Fultz (2021) 69 Cal.App.5th 395, 426), Baranovsky expressly denies that he is making such a claim. Baranovsky's reliance on People v. Alvarez (2014) 229 Cal.App.4th 761 and United States v. Zaragoza-Moreira (9th Cir. 2015) 780 F.3d 971 is thus unavailing. Those cases involved a failure to preserve video footage that was maintained and controlled by law enforcement. (Alvarez, at pp. 767-768; Zaragoza-Moreira, at p. 976.) In contrast, here, Baranovsky was able to present at the preliminary hearing and trial the evidence of Finch's alleged confession that law enforcement collected. Neither Alvarez nor Zaragoza-Moreira suggests more was needed to afford Baranovsky due process.
Accordingly, the trial court did not err in denying Baranovsky's Trombetta/Youngblood claim.
B. Alleged Prosecutorial Misconduct and Errors by the Court During Trial
Baranovsky contends the prosecutor engaged in prejudicial misconduct because: (1) in his opening statement, he stated Baranovsky confessed to Aispuro about shooting the victim, but the alleged confession never came into evidence because Aispuro refused to answer any questions when he was called to testify; and (2) during Aispuro's examination, the prosecutor asked numerous leading questions suggesting Aispuro was refusing to testify because he feared retribution and being murdered, which suggested (without any evidence) that Baranovsky had threatened Aispuro to prevent testimony about the alleged confession.
Baranovsky further asserts the trial court erroneously admitted a recording of Aispuro and Snider's conversation in the back of a police car in which the pair stated Baranovsky was responsible for the murder, and he complains the defense was not provided information that came to light during an in-camera discussion between the judge who presided at the preliminary hearing and Aispuro's appointed counsel that would have supported a motion to exclude Aispuro's testimony or reference to his statements at trial.
Baranovsky asserts that due to all these errors, the prosecution was permitted to tell the jury that he "confessed to committing the shooting, even though no such evidence was ever introduced and no such suggestion ever should have been made." He contends the errors violated his right to confrontation and denied him a fair trial.
1. Pertinent facts and procedural history
a. Recording of Aispuro and Snider's conversation
Two days after the murder, Aispuro and Snider were arrested at Snider's apartment and detained in a police car with a hidden recording device and a photograph of Baranovsky placed in the front seat. In the recorded conversation, Aispuro initially asked, "[W]hat the fuck is going on?" Then the pair noticed the photograph. Snider said, "I think it's that picture of Baron. That's from that night that fool got shot." Aispuro responded, "Yeah. That fool did it." Snider replied, "That fool did it," and Aispuro repeated, "Yeah." The pair then agreed, "That's why we're being arrested - why we're being detained," before Snider said, "I don't know shit about shit." During this time they also expressed concern and nervousness, including over the guns, drugs, and other incriminating items they left in the apartment that the police were searching.
The pair then discussed their chances of getting released, with Snider noting she had "warrants in [her] real name." Snider then said, "look if we - the thing is that if we cooperate with them, they'll let us go," adding, "If we tell 'em we know who Baron is." Aispuro responded, "I'm not gonna say that, fool," and "I ain't a snitch, fool." Snider responded, "Fuck. Fuck this. You really fucking going to jail for this shit? The only reason that they came is because of him. Look it, these are detective, dude." She added, "This is not a joke. They just want to know if we know shit about it."
b. Aispuro's statements to police relaying Baranovsky's confession
Thereafter, in a police station interview, Aispuro informed Detective Adams that he met up with Baranovsky on the night of the shooting. Aispuro told Adams that Baranovsky confessed to shooting the victim, explaining he had entered the apartment looking for something to steal when a maintenance worker confronted him and a fight ensued.
c. Aispuro's invocation of the Fifth Amendment at the preliminary hearing
Aispuro was in custody at the time of Baranovsky's preliminary hearing. The trial court appointed counsel for Aispuro, who had refused to exit his holding cell at court before speaking with an attorney. On counsel's advice, Aispuro proceeded to assert his Fifth Amendment privilege against selfincrimination with respect to every question asked of him. The court then held an in-camera hearing with Aispuro's counsel (and without the parties present) and determined that Aispuro had a right to remain silent. The prosecution declined to ask Aispuro any further questions.
d. Pretrial rulings regarding Aispuro's statements
Before trial, the prosecution requested a hearing to determine if Aispuro could still claim Fifth Amendment protection and argued he could not because he no longer faced the threat of incrimination. The prosecution noted that, at the time of the preliminary hearing, Aispuro faced criminal liability for his participation in two residential burglaries committed on the day of the murder. However, following the preliminary hearing, Aispuro had pleaded no contest in one case and had the other dismissed as part of the plea. Further, Aispuro more recently had pleaded guilty to federal charges and was serving a prison sentence for those charges. Although Aispuro was implicated in several other possible crimes, the prosecution asserted the three-year statute of limitations for those offenses had passed. In response, the trial court indicated "preliminarily" it did not appear Aispuro had a Fifth Amendment right to remain silent but noted Aispuro would have counsel to assist him and the issue could be further addressed when Aispuro was called to testify. The defense took no position.
Also before trial, Baranovsky objected on hearsay and foundation grounds to the prosecution's request to present a recording of Aispuro and Snider's police car conversation in which the two identified him in a photograph and stated "that fool did it." The court agreed with the prosecution that the recorded statements were admissible as spontaneous statements under Evidence Code section 1240. The court also rejected Baranovsky's contention that neither declarant had personal knowledge of the shooting, pointing out that Baranovsky allegedly confessed to Aispuro before the recorded conversation, thus providing foundation for Aispuro's statement that Baranovsky "did it."
e. References to Baranovsky's confession during prosecution's opening statement
During his opening statement, the prosecutor informed the jury that Aispuro would testify that Baranovsky confessed to committing the murder. Specifically, the prosecutor said Aispuro met with Baranovsky at his residence on the night of the murder. The prosecutor explained that Aispuro said to Baranovsky," 'I hope you didn't have anything to do with what happened at that apartment building[,]'" to which Baranovsky responded:" 'I did. I was the one who shot that guy.'" The prosecutor further asserted: "Mr. Aispuro will lay out exactly what the defendant told him, that he got into a struggle with the handyman . . . that, during the struggle, the defendant pulled out a gun and shot the handyman and then ran out the building ...." Further, Aispuro was expected to testify that Baranovsky confessed to Aispuro that "he threw the gun behind a trash can" and" 'went back there later that night to try to get the gun back, but it was gone.'" The prosecutor also informed the jury that it would hear the police car recording, in which Aispuro and Snider showed "they know that the defendant was the one who was responsible for this." The defense did not lodge any objections to the prosecution's opening statement.
f. Prosecution's questioning of Aispuro and Aispuro's refusal to testify
Prior to the prosecution calling Aispuro to testify, the court indicated its understanding that Aispuro no longer had a Fifth Amendment right to remain silent because the charges he was facing at the time of the preliminary hearing had been resolved and the statute of limitations had expired for any other relevant charges. Aispuro's appointed counsel confirmed Aispuro "does not have a Fifth Amendment right against self-incrimination at this time," but stated "he does not wish to testify" and would like to "remain silent and refuse to answer any questions at all." The court stated it would order Aispuro to respond to questions.
In front of the jury, Aispuro refused to take the oath. The prosecutor asked, "Mr. Aispuro, did you come here voluntarily or were you forced to be here today?" Aispuro responded, "I'm being forced to be here." From there, the prosecutor proceeded to ask Aispuro nearly 100 questions. Aispuro responded to each with "I don't want to be here," "I refuse to answer," or a similar nonresponsive answer.
The prosecutor started by asking a series of questions about whether Aispuro was refusing to testify out of fear. In successive unanswered questions, the prosecutor asked, "Are you familiar with the term 'snitch'?"; "Is it your belief that, if you testify, you're putting yourself in danger in your current housing?"; "Do you believe that it's possible that someone will retaliate against you, just for testifying here today?"; "Do you think, even the answers that you have given so far subject you to danger in custody?"; "Is your fear even up to and including that someone would physically harm you or murder you?" Defense counsel did not make any objections.
The prosecutor then asked Aispuro, "Did you tell Detective Adams that you met with the defendant, Gregory Baranovsky, on February 12, 2018?" The court called a sidebar, and asked defense counsel why he was not objecting. Counsel responded he had not objected based on his understanding "that the court was going to allow [the prosecutor] to ask these questions before the jury."
The court stated it did not want a situation where the prosecutor was "getting [Aispuro's police] statement out in question form but not in evidence form." The court noted the prosecutor would not be acting in good faith if he continued asking questions in the face of Aispuro's nonresponses, emphasizing, "you had to have anticipated this. This isn't anything new."
The court also explained it had stopped the proceedings to confirm whether the defense's lack of objections "was a tactical decision." Defense counsel noted the previous uncertainty as to how Aispuro would testify, conceded he "probably was tardy on objecting," and stated he objected to the inappropriate questions. The court rejected this characterization of the questions, emphasizing the need to see Aispuro on the stand regardless of his wish to not testify. The court added that Aispuro's examination could take place in front of the jury because Aispuro did not have a Fifth Amendment right to remain silent. The court rejected defense counsel's request to put in a continuing objection, stating it needed to hear objections from counsel in real time.
After the jury returned, the prosecutor continued asking questions to Aispuro about his police car conversation with Snider and their identification of Baranovsky in the photograph left out to stimulate discussion about the shooting. Amongst these, the prosecutor asked, "As you sit here, you understand that admitting that you knew that person is going to be damaging to Mr. Baranovsky? Is that -- is that why you're refusing?" Aispuro continued to refuse to testify. Defense counsel did not object to any of the prosecutor's questions.
After a series of questions regarding the pre-shooting burglaries committed by Aispuro and Baranovsky, the prosecutor asked, "You found out that someone was shot at an apartment building on Argyle on February 12, 2018. Do you remember that?" The prosecutor next asked, "And do you remember that, after that, you met up with Mr. Baranovsky?," at which point defense counsel objected.
The court recessed for lunch. That afternoon, the prosecution declined to ask any more questions, defense counsel declined to cross-examine Aispuro, and Aispuro was not recalled for further testimony. The court rejected defense counsel's request for an instruction that there was no evidence Baranovsky threatened Aispuro. The court noted it would be instructing the jury that counsel's questions were not evidence.
g. The recording of Aispuro and Snider's conversation is played for the jury
Thereafter, during testimony from Detective Adams, the prosecutor played for the jury the surreptitious recording of Aispuro and Snider's conversation in the police car that implicated Baranovsky. Defense counsel did not make any objections.
h. Baranovsky moves for a mistrial
Before closing arguments, Baranovsky moved for a mistrial, contending the reference in the prosecutor's opening statement to Baranovsky's alleged confession was not ultimately supported by the evidence. Baranovsky argued further that by questioning Aispuro as to whether he had been threatened, the prosecutor created "an irreversible impression that [Baranovsky] did, in fact, confess and that Aispuro was now afraid to repeat it." The defense contended Aispuro should have been called to the stand outside the presence of the jury to determine whether he would testify. The prosecution responded that its opening statement was made in good faith in light of Aispuro's prior police statement and that any error was harmless based on other evidence showing Baranovsky's guilt.
The court denied the motion for a mistrial. The court explained it would instruct the jury that neither opening statements nor counsel's questions were evidence. The court also noted the prosecutor's opening statement reference to Baranovsky's alleged confession to Aispuro was not "a real highlight" and was instead "kind of even buried in the middle somewhere." The court emphasized there was no showing of bad faith from the prosecution, and concluded there would not be undue prejudice given the other evidence.
2. The trial court did not err in failing to disclose the contents of the sealed transcript
At the preliminary hearing, the court-a different bench officer than the one who presided at trial-conducted an incamera hearing with Aispuro's appointed counsel to determine whether Aispuro could invoke the Fifth Amendment and refuse to testify. The sealed transcript from that hearing was provided to Baranovsky's appellate counsel upon a motion to this court. Baranovsky now contends that during the hearing the court was "presented with exculpatory information that should have been disclosed to the defense." Baranovsky asserts the information was not only favorable to the defense but also would have supported a motion to exclude Aispuro's testimony or a motion to require a hearing outside the jury's presence before the prosecution could mention his testimony.
Baranovsky's contentions are not well-taken because the information he refers to as the exculpatory information was well-known to the defense at the time of trial. Baranovsky points to statements during the in-camera hearing by Aispuro's appointed counsel that Aispuro told her "he had lied to the police regarding what [Baranovsky] told him" because Aispuro was high on meth and afraid he was going to be charged. But during the trial, prior to opening statements, defense counsel acknowledged that Aispuro had recanted his statement to the police that Baranovsky had confessed to him. And subsequently, during the hearing on Baranovsky's motion for a mistrial, the prosecutor noted defense counsel told him Aispuro had "disavowed" his statements about Baranovsky's confession. Thus, the notion there was undisclosed information in the sealed transcript about Aispuro's recantation is incorrect.
3. There was no prejudicial prosecutorial misconduct
a. Opening statement
Baranovsky contends the prosecutor should not have informed the jury in his opening statement that Aispuro would testify that Baranovsky confessed to shooting the victim, given Aispuro had invoked his right to remain silent at the preliminary hearing. Baranovsky correctly notes a defendant's own confession" 'is probably the most probative and damaging evidence that can be admitted against him'" (Arizona v. Fulminante (1991) 499 U.S. 279, 296) and can"' operate "as a kind of evidentiary bombshell which shatters the defense" '" (People v. Neal (2003) 31 Cal.4th 63, 86). However, given the circumstances here, we find no prejudicial misconduct in the reference to Baranovsky's confession to Aispuro in the prosecutor's opening statement.
The prosecution may unquestionably refer to evidence in opening statements that it believes will be produced. (People v. Barajas (1983) 145 Cal.App.3d 804, 809 (Barajas).) Remarks made in an opening statement only constitute misconduct where"' "the evidence referred to by the prosecutor' "was 'so patently inadmissible as to charge the prosecutor with knowledge that it could never be admitted.'" '" (People v. Flores (2020) 9 Cal.5th 371, 404 (Flores), quoting People v. Dykes (2009) 46 Cal.4th 731, 762; accord, People v. Wrest (1992) 3 Cal.4th 1088, 1108; see People v. Boyette (2002) 29 Cal.4th 381, 446-47 [holding no misconduct in prosecutor's opening statement when "the prosecutor's argument was based on . . . what she anticipated presenting"].)"' "[P]rosecutorial misconduct in an opening statement is not grounds for reversal of the judgment on appeal unless the misconduct was prejudicial or the conduct of the prosecutor so egregious as to deny the defendant a fair trial." '" (Flores, at p. 405.)
Here, the prosecutor appears to have had a reasonable belief that Aispuro did not have a right to invoke the Fifth Amendment. Specifically, in his pretrial brief requesting an evidentiary hearing regarding Aispuro's "likely claim of Fifth Amendment privilege," the prosecutor pointed out that the charges Aispuro was facing at the time of the preliminary hearing had been resolved and the statute of limitations had expired for any other potential charges. The court tentatively agreed with the prosecution's position, explaining that if he was eventually called to testify, Aispuro would have the assistance of counsel and the court would entertain further discussion of the issue. When Aispuro was called, the court again determined that Aispuro did not have a Fifth Amendment right and Aispuro's appointed counsel confirmed she agreed with the court's conclusion.
At no point did defense counsel raise any disagreement or concern that Aispuro ultimately might not testify. Notably, when Baranovsky's counsel moved for a mistrial at the close of evidence, he stated, "I did not object to those statements [by Aispuro] at the time of opening statement because it was unknown what Aispuro was going to testify to....We had discussions that Mr. Aispuro no longer had a legitimate Fifth Amendment claim, and so I assumed that, in some fashion, he would testify, either by possibly denying that he ever made that statement to the police, that the defendant confessed to him, or maybe claiming that he couldn't remember that he made that statement, or maybe even stating that he lied to the police when he made that statement that the defendant confessed." Thus, by defense counsel's own admission, it was not apparent Aispuro would refuse to testify or had a legitimate basis to do so. (See People v. Ney (1965) 238 Cal.App.2d 785, 794 ["If the inadmissibility of defendant's statement was as self-evident as defendant now claims, it was equally so to defendant's counsel who uttered no word of objection."].) Only after the trial, in his motion for a new trial, did Baranovsky assert Aispuro had a valid right to invoke his Fifth Amendment protections at trial, contending the statute of limitations for at least one potential federal offense was longer than three years.
Even if there was prosecutorial misconduct here, such a claim "is ordinarily preserved for appeal only if the defendant made 'a timely and specific objection at trial' and requested an admonition." (People v. Daveggio &Michaud (2018) 4 Cal.5th 790, 853; accord, Flores, supra, 9 Cal.5th at p. 403 [defendant forfeits his challenge to claim of prosecutorial misconduct during opening statement by failing to object and offering no persuasive reason to excuse the forfeiture].) This is "[b]ecause' "the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the harmful effect [of prosecutorial misconduct] upon the minds of the jury." '" (People v. Bell (1989) 49 Cal.3d 502, 535.)
Defense counsel neither objected to references to Aispuro's statements about Baranovsky's confession during the prosecutor's opening statement nor subsequently requested a special instruction advising the jury that no evidence of a confession was ever presented. (See Flores, supra, 9 Cal.5th at p. 405 ["[I]f 'defendant believed the jury should have been more directly admonished on [a discrepancy between the opening statement and the evidence], it was incumbent on him to request such an admonishment.' "]; People v. Whitmore (1967) 251 Cal.App.2d 359, 365 [declining to find misconduct where prosecutor referred to defendant's admissions of guilt to police officer in opening statement but never called officer to testify; deeming it noteworthy that defense made no objection or requests for special instructions]; see People v. Ney, supra, 238 Cal.App.2d at pp. 793-794 [no prosecutorial misconduct where defense counsel was aware of issues with defendant's statement to the police but made no objection to prosecutor's reference to the statement in opening statement and "made no request of the trial court to instruct the jury to disregard" that reference].) Despite knowing both that Aispuro had recanted his statement that Baranovsky had confessed to him and that Aispuro had invoked his right not to testify at the preliminary hearing, defense counsel did not object to the prosecutor's reference to Baranovsky's alleged confession in opening statements. Baranovsky thus forfeited his contention of prosecutorial misconduct. (Cf. Barajas, supra, 145 Cal.App.3d at p. 807 [holding prejudicial misconduct from prosecutor's opening statement in part because defense counsel unsuccessfully brought motion in limine to restrict prosecutor's opening statement regarding witness's expected testimony, given witness had recanted to defense investigator].)
The trial court is "not required to identify as misconduct, or correct sua sponte, improper prosecutorial argument." (People v. Bell, supra, 49 Cal.3d at p. 542.)
Moreover, here, the trial court twice instructed the jury that opening statements were not evidence. We presume the jury followed the court's instructions, and find Baranovsky has not shown prejudicial misconduct in the prosecutor's opening statement. (See Flores, supra, 9 Cal.5th at p. 405 [holding there was no prejudice from prosecutor's improper opening statement where "[t]he court twice instructed the jury that the attorneys' statements did not constitute evidence"]; cf. Barajas, supra, 145 Cal.App.3d at pp. 809-810 [holding defendant was prejudiced by prosecutorial misconduct in opening statement because jury was never informed that opening statements were not evidence].)
b. Prosecutor's questioning of Aispuro
Baranovsky also asserts the prosecutor committed misconduct in continuing to question Aispuro despite Aispuro's nonresponsive answers and steadfast refusals to testify. A prosecutor "may not, under the guise of cross-examination, get before the jury what is tantamount to devastating direct testimony." (People v. Shipe (1975) 49 Cal.App.3d 343, 349.)
Baranovsky primarily complains the prosecution was allowed to ask Aispuro repeatedly whether he was refusing to testify because he feared he would suffer violence if he did so. According to Baranovsky, the obvious-and highly prejudicial- implication from this questioning was that Baranovsky was responsible for threats to harm Aispuro.
However, Baranovsky never objected to the line of leading questions insinuating Aispuro feared recrimination if he testified. In fact, the trial court called a sidebar and asked defense counsel why he was not objecting, and stated it was not sure if the lack of objections was a "tactical decision" by the defense. Under these circumstances, the claim of prosecutorial misconduct was not preserved for appeal. (Evid. Code, § 353; People v. Alvarez (2022) 75 Cal.App.5th 28, 33-34 [defendant forfeited argument on appeal where he failed to object to prosecutor's question at trial]; cf. Barajas, supra, 145 Cal.App.3d at p. 808 [holding prejudicial misconduct in part where defense counsel had vociferously objected to prosecutor asking recalcitrant witness whether his refusal to testify was due to threats].)
Baranovsky also asserts the prosecution committed misconduct in asking Aispuro whether he understood that his testimony was "going to be damaging to Mr. Baranovsky" and "knew that [Baranovsky] committed this crime[.]" He suggests these questions violated the Confrontation Clause of the Sixth Amendment. "[A] defendant's right to confrontation is violated where, in examining a recalcitrant witness, the prosecutor poses leading questions that provide the details of prior statements the witness made to police regarding a defendant's commission of a crime." (People v. Perez (2016) 243 Cal.App.4th 863, 886; see People v. Murillo (2014) 231 Cal.App.4th 448, 455-456 (Murillo); People v. Morgain (2009) 177 Cal.App.4th 454, 463; People v. Rios (1985) 163 Cal.App.3d 852, 864-865; Barajas, supra, 145 Cal.App.3d at p. 810; People v. Shipe, supra, 49 Cal.App.3d at p. 355.) In Murillo, for example, the court found the defendant's right to cross-examination was violated when the trial court allowed the prosecutor to ask the recalcitrant witness more than 100 leading questions concerning the witness's out-of-court statements to prove the defendant was guilty of several criminal offenses. (Murillo, at pp. 449-450.) And in Shipe, the court held the defendant was denied his right to cross-examination under the Confrontation Clause where the prosecutor succeeded in creating the impression through "blatantly leading questions" that the recalcitrant witnesses "had talked to the authorities, that they described the events vividly depicted in the prosecutor's questions and that their statements [implicating the defendant] were true." (Shipe, at p. 355.)
Here, it is not evident that the prosecutor's generic questions whether Aispuro knew that Baranovsky committed the crime or knew his testimony would be damaging to Baranovsky were based on prior statements Aispuro had made such that the Confrontation Clause was implicated. But in any event, Baranovsky did not object to these questions, even though they were posed after the court had indicated during a sidebar that it would require counsel to interpose specific objections to the prosecutor's questions of Aispuro. Baranovsky therefore forfeited any claim of misconduct. (People v. Alvarez, supra, 75 Cal.App.5th at pp. 33-34; People v. Bell, supra, 49 Cal.3d at p. 535.)
Further, the court instructed the jury twice that counsel's questions were not evidence and that only witnesses' answers were evidence. The court specifically stated in the concluding instructions, "So I have to highlight there. We had one witness come in and testify, 'I don't want to be here,' 'I don't want to testify.' So whatever questions were posed to him, that's not the evidence....I wanted to focus on that."" 'The assumption that jurors are able to follow the court's instructions fully applies when rights guaranteed by the Confrontation Clause are at issue.'" (People v. Morgain, supra, 177 Cal.App.4th at p. 465.) Accordingly, we find no prosecutorial misconduct in the questioning of Aispuro.
4. The trial court did not abuse its discretion by admitting evidence of Aispuro and Snider's conversation
Baranovsky contends the trial court incorrectly admitted evidence that while Aispuro and Snider were detained in the back of a patrol car, they each remarked "that fool did it" while observing a photo of Baranovsky. The court ruled these out-ofcourt statements were "spontaneous statements" under Evidence Code section 1240 and determined before trial that Aispuro had personal knowledge that Baranovsky "did it" because Baranovsky had confessed to Aispuro that he shot Cortez. Baranovsky challenges the ruling on grounds that the statements were neither spontaneous statements nor supported by proper foundation.
a. Spontaneous statements
As out-of-court statements offered for the truth of the matter asserted, the statements by Aispuro and Snider were hearsay. (Evid. Code, § 1200, subd. (a); see People v. Seumanu, supra, 61 Cal.4th at p. 1307.) "Hearsay is inadmissible unless it qualifies under some exception to the hearsay rule." (People v. DeHoyos (2013) 57 Cal.4th 79, 132; see Evid. Code, § 1200, subds. (a), (b).)
Evidence Code section 1240 provides that a hearsay statement is nevertheless admissible if the statement "(a) [p]urports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) [w]as made spontaneously while the declarant was under the stress of excitement caused by such perception." For an out-of-court statement to be admissible under this spontaneous statement exception," '(1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstances of the occurrence preceding it.'" (People v. Poggi (1988) 45 Cal.3d 306, 318.)
" 'A spontaneous statement is one made without deliberation or reflection.' [Citation.] The' "crucial element"' in determining whether a statement is sufficiently reliable to be admissible as a spontaneous statement is' "the mental state of the speaker. The nature of the utterance-how long it was made after the startling incident and whether the speaker blurted it out, for example-may be important, but solely as an indicator of the mental state of the declarant." '" (People v. Lozano (2024) 101 Cal.App.5th 366, 376; accord, People v. Ramirez (2006) 143 Cal.App.4th 1512, 1523.)"' "The foundation for this exception is that if the declarations are made under the immediate influence of the occurrence to which they relate, they are deemed sufficiently trustworthy to be presented to the jury. [Citation.] [¶] The basis for this circumstantial probability of trustworthiness is 'that in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of one's actual impressions and belief.'" '" (People v. Rincon (2005) 129 Cal.App.4th 738, 752.)
"Whether an out-of-court statement meets the statutory requirements for admission as a spontaneous statement is generally a question of fact for the trial court, the determination of which involves an exercise of the court's discretion. [Citation.] We will uphold the trial court's determination of facts when they are supported by substantial evidence and review for abuse of discretion its decision to admit evidence under the spontaneous statement exception." (People v. Merriman (2014) 60 Cal.4th 1, 65; see People v. Morrison (2004) 34 Cal.4th 698, 718 [in deciding whether to admit evidence as a spontaneous statement, "[t]he trial court must consider each fact pattern on its own merits and is vested with reasonable discretion in the matter"].)
Pretrial objections made in limine in some instances are sufficient to preserve an error on appeal, and we conclude the issue whether the statements by Aispuro and Snider were "spontaneous statements" under Evidence Code section 1240 was adequately preserved for appeal by Baranovsky's pretrial stance on the prosecution's motion in limine on this issue. (See People v. Whisenhunt (2008) 44 Cal.4th 174, 156.)
Baranovsky contends, for the first time on appeal, that the admission of the police car recording also violated the Confrontation Clause. Baranovsky did not object on such grounds before or during the trial, including after it became apparent Aispuro would not answer any questions. Even assuming Aispuro's statements in the police car recording were testimonial (see People v. Gutierrez (2009) 45 Cal.4th 789, 812 ["[o]nly the admission of testimonial hearsay statements violates the confrontation clause"]), "[h]e did not raise an objection below based upon the confrontation clause, and therefore has forfeited this claim" (People v. Redd (2010) 48 Cal.4th 691, 730). (See also People v. Dykes, supra, 46 Cal.4th at p. 756 ["trial counsel's failure to object to claimed evidentiary error on the same ground asserted on appeal results in a forfeiture of the issue on appeal"]; People v. Williams (1988) 44 Cal.3d 883, 906 ["A trial objection must be 'sufficiently specific to encompass' the issue raised on appeal."].)
The trial court determined the detention of Aispuro and Snider was a "startling event" for purposes of section 1240. The court found that after being placed in the back of the patrol car the pair quickly deduced they were being detained for questioning about the murder that had occurred in their building. Thus, when Snider noticed the photo of Baranovsky in the patrol car, she connected the presence of the photo to their detention, stating, "I think it's that picture of Baron. That's from that night that fool got shot." Aispuro then said, "Yeah. That fool did it," and Snider repeated, "That fool did it." Snider then stated, "That's why we're being arrested - why we're being detained." Aispuro responded, Yeah." The trial court did not abuse its discretion in determining that the pair's response to seeing Baranovsky's photograph in this context, blurting out "that fool did it," constituted "utterance[s]" that were "relate[d] to the circumstances of the occurrence preceding it" (People v. Poggi, supra, 45 Cal.3d at p. 318), i.e., being detained in connection with the murder investigation.
"[W]e cannot second-guess the trial court's assessment of the evidence in determining [the declarant's] state of mind." (People v. Liggins (2020) 53 Cal.App.5th 55, 64.)" 'A number of factors may inform the court's inquiry as to whether the statement in question was made . . . before there was "time to contrive and misrepresent,"' such as . . . 'whether the content of the statement suggested an opportunity for reflection and fabrication.'" (People v. Mataele (2022) 13 Cal.5th 372, 411.) "In the final analysis the issue is whether the statement has an indicia of reliability so as to permit its admission in the absence of the declarant's testimony." (People v. Gutierrez (2000) 78 Cal.App.4th 170, 181.) Nothing about the pair's discussion in the back of the patrol car suggests they had any indication their conversation was being recorded or monitored. Instead, they spoke frankly regarding their concerns about having left guns, drugs, and other incriminating evidence in the apartment the police were simultaneously searching. There was no one else there whose presence might have encouraged the pair to contrive or provide false information. In sum, the trial court did not abuse its discretion in determining their statements were reliable and admissible under Evidence Code section 1240.
b. Foundation for the statements Baranovsky "did it"
Baranovsky correctly contends that even if a hearsay statement is admissible under Evidence Code section 1240, the declarant must have had personal knowledge of the facts relayed in the declarant's statement. (See People v. Blacksher (2011) 52 Cal.4th 769, 834-835.) Here, the trial court determined that because Baranovsky had earlier confessed to Aispuro that he shot Cortez, Aispuro had knowledge of that fact, and thus there was foundation for his statement that Baranovsky "did it." At that point, as discussed, all the parties assumed Aispuro would be testifying about Baranovsky's confession to him. However, after Aispuro refused to testify a trial, Baranovsky contends it became evident there was no foundation for the admission of the statement by Aispuro. He further contends there was never any foundation for Snider's statement that Baranovsky "did it."
In making its factual determination there was sufficient foundation for the content of a spontaneous statement, the trial court exercises discretion, and we uphold that exercise of discretion if substantial evidence supports it. (People v. Anthony O. (1992) 5 Cal.App.4th 428, 433.)
During the pretrial hearing on the prosecution's motion in limine, Baranovsky objected on foundation grounds to the admission of Aispuro and Snider's recorded conversation. After Aispuro refused to testify, however, Baranovsky did not renew his objection, despite the changed circumstances. A timely objection is necessary to preserve for appeal a challenge to the admission of evidence. (Evid. Code, § 353; People v. Valdez (2012) 55 Cal.4th 82, 130.) Although in some instances objections made in the context of in limine motions may serve to preserve the issue for appeal, "[e]vents in the trial may change the context in which the evidence is offered to an extent that a renewed objection is necessary." (People v. Morris (1991) 53 Cal.3d 152, 190, overruled on other grounds by People v. Stansbury (1995) 9 Cal.4th 824; accord, People v. Rouston (2024) 99 Cal.App.5th 997, 1013.) With respect to the objection on foundation grounds, circumstances had changed such that a renewed objection by Baranovsky was necessary. The failure to renew his objection after Aispuro refused to testify resulted in forfeiture of Baranovsky's claim of error on foundation grounds as to Aispuro's statement.
On the other hand, we agree with Baranovsky there was never any apparent foundation for Snider's statement repeating after Aispuro that "that fool did it." But even if it was error not to excise her statement from the recording played for the jury, any such error was harmless. "Because there was no federal constitutional error, we analyze state law error 'under the test articulated in People v. Watson (1956) 46 Cal.2d 818, 836 . . . to "evaluate whether 'it is reasonably probable that a result more favorable to [defendant] would have been reached in the absence of the error.'" '" (People v. Loy (2011) 52 Cal.4th 46, 67.) Given Aispuro's statement "that fool did it" was not erroneously admitted in evidence, Snider's repetition of the statement added very little. Further, even assuming it was error to admit the statement by either Aispuro or Snider, their saying "that fool did it" did not necessarily imply Baranovsky was the triggerman, and could be consistent with the defense theory that Baranovsky was an accomplice in the burglary that resulted in the murder. More broadly, given Baranovsky's concessions he was part of the burglary, struggled with Cortez, was present when Cortez was shot, and fled the scene with the murder weapon, and the other evidence showing he was at scene and disposed of the weapon, admitting the statements "that fool did it" was harmless.
DISPOSITION
The judgment is affirmed.
We concur: MARTINEZ, P. J. FEUER, J.