Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA277078, Kathleen Kennedy-Powell, Judge.
Tracy J. Dressner, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
JOHNSON, J.
A jury convicted David Cummings of first degree murder, attempted murder, escape, and felon in possession of a firearm. Cummings appeals, arguing that the trial judge’s bias against his trial counsel resulted in evidentiary rulings against him which prejudiced his defense and rendered his trial fundamentally unfair. We affirm.
BACKGROUND
An information filed May 31, 2005 charged Cummings and codefendants Wendy Callandret and Justin Hull with murder in violation of Penal Code section 187, subdivision (a) (count 1); attempted willful, deliberate, and premeditated murder in violation of sections 187 and 664 (count 2); escape by force in violation of section 4532, subdivision (b)(2) (count 3); and possession of a firearm by a felon in violation of section 12022, subdivision (a)(1) (count 4). The information also alleged firearm enhancements with respect to counts 1 and 2 under section 12022.53, subdivisions (b)–(d), and alleged that the murder and attempted murder counts (1 and 2) were committed for the benefit of a criminal street gang, in violation of section 186.22, subdivision (b)(1)(A).
Unless otherwise indicated, all future statutory references are to the Penal Code.
Cummings pleaded not guilty and denied the special allegations. He admitted the prior robbery conviction underlying the felon in possession of a firearm charge in count 4. After trial, the jury convicted Cummings on all counts, on count 3 finding him guilty of the lesser included offense of escape in violation of section 836.6, subdivision (b). The jury also found the gang and firearm allegations to be true. The jury acquitted Cummings’s codefendant Hull of all charges, and convicted Callandret of accessory-after-the-fact to a felony in violation of section 32, finding true a gang enhancement under section 186.22, subdivision (b)(1)(A).
The trial court sentenced Cummings to 25 years to life for murder on count 1, plus a consecutive term of 25 years to life for the firearm enhancement; a consecutive life term for attempted murder on count 2, plus an additional consecutive term of 25 years to life for the firearm enhancement; a consecutive term of one year for escape, count 3; and an upper term of three years on count 4, plus an additional consecutive term of four years for the gang enhancement. The court ordered Cummings to pay a $10,000 restitution fine under section 1202.4 subdivision (b), and imposed and stayed a $10,000 parole revocation fine. Cummings was credited with 1,076 days of presentence custody.
FACTS
I. The Prosecution’s Case
A. The shooting
On January 6, 2005 at 2:50 p.m., Erica Maris accepted a ride home from Southwest College in Los Angeles from a fellow student and friend, Wendy Callandret. Callandret had told Maris that she was affiliated with the Rolling 60’s, a Crips street gang, and that she used the moniker “Lady Jinky Blue,” although Maris had never seen Callandret act or dress like a gang member. Maris did not belong to a gang, although she socialized with some members of the Crips and Bloods gangs.
Callandret, who drove a white four-door car, told Maris she was picking up her boyfriend “Rome” before driving Maris home. Callandret drove Maris to 122th Street and Denker in Los Angeles, where she pulled over. Maris got out of the front seat and moved into the driver’s side back seat. Callandret introduced her to Rome, whom Maris identified as Cummings.
Callandret opened the trunk of the car and Cummings placed something he was carrying into the trunk. Cummings got into the front passenger seat, and another man, “Acorn,” whom Maris identified as codefendant Hull, got into the back seat with Maris. Cummings asked Callandret what Maris was doing in the car, and Callandret told him she was taking Maris home. Cummings was wearing baggy clothing, a black hoodie and jean shorts.
Maris saw three other people come out of the house, two men and a woman carrying a baby. They got into a black four-door car parked behind Callandret’s car. One of the men, who identified himself as “Chaos,” approached Callandret’s car, briefly got into the back seat, and asked Maris for her phone number. When she declined, he left and got into the back seat of the black car.
Callandret drove up Western with the black car following her. Cummings told Callandret to turn on to 85th; by this time, the black car was in front. Cummings told Callandret to follow the black car. Cummings and Hull were talking on cell phones in the “chirp” (walkie-talkie) mode as Callandret drove.
Callandret drove down 85th, turned onto Denker, and circled the block. Maris saw two men standing on the sidewalk in front of a house on 85th, one wearing an orange shirt. Over one of the “chirp” phones, Maris heard someone say “there they go” and “turn around.” Cummings told Callandret to pull over, and said he’d be right back. Hull told her to leave the car in drive and keep the door open. The black car also pulled over and stopped, facing the opposite direction. Cummings walked around the corner onto 85th, and Maris heard three or four gun shots.
Gregory Dixon, 38 years old, was standing on the sidewalk in front of his house at 1622 West 85th near Denker; he wore brown sweats and a fluorescent orange work jacket from his railroad job. His younger brother, Berley, home from college and staying with Dixon’s mother three houses down the street, was standing on the lawn. Neither Dixon nor Berley belonged to a gang, and Dixon knew of no neighborhood gang activity in the four or five years he had lived there. Dixon saw a man near the corner of 85th and Denker walking toward his house. A mail carrier walking in the opposite direction handed Dixon the mail, and while Dixon was looking at it he heard gunshots. Dixon turned around in a circle, saw Berley falling, and tried to go to his brother. He couldn’t move, and realized he had been shot in both legs. Dixon looked up and saw Cummings from 10 to 15 yards away; they stared at each other and Cummings turned and walked back toward Denker. Cummings had his hand in the waistband of his sweatshirt.
Dixon had five gunshot wounds in his upper thighs. Berley died of six gunshot wounds. The mail carrier, Beverly Robinson, testified that just before she gave Dixon the mail she had passed a young man wearing a dark blue hooded sweatshirt, and that after she passed Dixon she heard gunshots and saw the young man running towards Denker. A resident, James Gavin, looked out his window onto Denker after he heard gunshots. He saw a man walking toward Manchester wearing a black hooded sweatshirt and baggy clothing. The man got into a white car similar to photos of Callandret’s car which pulled off immediately, with a female in the driver’s seat. A bicyclist on Denker, Richard Smith, heard the gunshots and saw a man run around the corner onto Denker from 85th, get into a white car, and speed away.
Maris saw Cummings walking fast back to the car. She did not see a weapon. He got in through the open front passenger door, turned to Maris and said she “don’t know nothin’” and “didn’t see nothin’.” Cummings told Callandret to drive, and she headed toward Manchester. The black car moved too.
Cummings was excited, got on the phone, and “kept saying something about six-0’s, and that they don’t even know that their homie had got shot, or ‘got got’ or something like that.” Hull said, “‘We should get them first.’”
Callandet drove to a house at 75th and Crenshaw, where everyone got out of the car and followed Cummings into the house. Cummings said, “This is Rollin’ 60’s Crip,” both while Callandet was driving and after they entered the house. Maris, who was frightened, sat on the couch. There were three other people in the house who were friends of Cummings. At some point, Cummings said he had shot somebody.
Cummings said he was hungry, and Callandret and Maris left to get some food. Maris told Callandret she wanted to go home, but did not talk about the shooting because Cummings was Callandret’s boyfriend. They brought the food back and stayed another half-hour. Chaos was there, along with Cummings, Hull, and the three others. Somebody said something about a homie having been killed on the roof at 75th and Crenshaw. Maris saw a shotgun in another room of the house. Callandret drove Maris home at about 6 p.m., with Cummings and Chaos in the car.
B. The investigation
Maris was afraid to call the police, thinking she would be arrested because she had been in the car, and because she feared for her life after Cummings told her she knew nothing and saw nothing. Five days later, on January 11, Maris saw a television report about the shooting, became very anxious, and told a friend, Eric Henderson, then employed as a deputy sheriff in Tulare County, what had happened. Henderson drove down and took her to the police department later that day, where she made a report to Los Angeles Police Department (LAPD) Detective John Radtke.
Maris told Detective Radtke what had happened, and identified Cummings, Acorn, and Callandret from six-pack arrays of photographs. She also identified a photograph of Callandret’s car. She took Detective Radtke to the house on 75th Street. A Rolling 60’s gang member, Jamie Bowe, had been killed on the roof of the house on December 18, 2004, with a funeral on December 28. Later, at trial, Maris explained that she had been afraid to testify because she was afraid of Rolling 60’s gang members who called her a “snitch” and whose threats caused her to move twice. Maris also received a call from someone identifying himself as “Rome” who said she didn’t have to worry about the police because “[t]hey think it’s somebody else” and that Maris needed to keep her mouth shut.
The police arrested Cummings on January 12. The next day, January 13, the police showed Dixon a six-pack array of photos at Dixon’s home, and Dixon identified Cummings’s photo. After he identified Cummings as the shooter, Dixon’s wife Andrea explained that Cummings’s family knew Dixon’s family. Dixon did not know Cummings before the shooting.
Cummings’s fingerprints were found on the exterior of Callandret’s car, outside the driver’s side front door and outside the driver’s side rear door. Fifteen cartridge cases, two expended bullets, and a bullet fragment were found at the crime scene, all from nine-millimeter Luger ammunition and all fired from the same gun. No weapon was recovered.
C. Gang evidence
Evidence of Cummings’s gang affiliation included his more than 20 tattoos, most related to the Rolling 60’s gang, one stating “Rome 3” and another stating “S.I.P. Baby Bolt.” Hull had a gang tattoo commemorating “Baby Bolt Da House.” Bolt Da House” was Jamie Bowe’s gang moniker. Gang paraphernalia and Rolling 60’s photographs, including some in which Cummings appeared, were found in Bowe’s house.
The prosecution’s gang expert, LAPD Officer Aron Algren, testified that the Rolling 60’s gang had 2,000 to 3,000 members, with criminal activities including robberies, narcotics sales, and crimes involving rival gangs including Eight Trey Gangsters. The scene of the shooting in this case was in the heart of Eight Trey Gangsters territory. Respect and reputation were very important in gang culture and if the gang did not retaliate for the shooting of a Rolling 60’s member, it would damage the gang’s reputation. Bowe was a Rolling 60’s member, and his home was a known gang hangout. In response to a hypothetical, Officer Algren opined that the shooting was committed in association with and in furtherance of the Rolling 60’s gang.
D. The escape
On January 13, 2005, Los Angeles Police Officers David Siurek and Tom Redshaw were transporting Cummings from one jail to another. Officer Redshaw handcuffed Cummings, placed him in the back seat of the police car, seatbelted him, and locked the door. Officer Redshaw sat in the back seat with Cummings while Officer Siurek drove on the 110 Freeway. Officer Siurek heard Officer Redshaw call out his name, looked in his rearview mirror, and was kicked in the shoulder. The car veered toward the carpool lane and Officer Siurek lost control. Cummings and Officer Redshaw fell out of the rear passenger door as the car was still moving. After they left the police car, an oncoming car struck the front driver’s side.
Cummings ran across the freeway, followed by the officers; only one hand was handcuffed. Cummings reached the opposite side of the freeway, climbed over the edge, and dropped down, running westbound underneath the freeway. He was detained by other officers in the Coliseum parking lot.
II. Defense evidence
Cummings’s mother testified that Cummings lived with her in Hollywood, although they used to live near 75th and Crenshaw, where Cummings and Bowe had been friends. Cummings was working for a railroad company. She had known Dixon’s wife for 24 years.
Detective Grace Garcia, who interviewed Dixon on January 10, testified that Dixon said he had not seen the shooter close enough to see eyes and eye color or details about his nose, and that Dixon had described the shooter as having no facial hair and as a “very small guy.” She also testified that on January 13, when she showed Dixon the six-pack from which Dixon identified Cummings, Dixon told her he recognized the photo by the eyes and the mouth.
Detective Radtke testified that Dixon’s wife was in the room at the time of Dixon’s photo identification, and that Detective Radkte then told Dixon that the photograph was of Cummings. Dixon’s wife told the officers that they knew Cummings’s family. Detective Radtke told Dixon that the suspects were on a mission in an Eight Trey neighborhood and had randomly selected Dixon and his brother. Dixon then signed the photo identification statement. Detective Radtke acknowledged that under LAPD policy, witnesses should be separated from each other during an identification and should not be told whether they selected the photograph of the suspect in custody. He also stated that he did not believe that statements made afterwards would taint the identification.
Steve Strong, a former LAPD gang officer, gave his opinion that the facts of this case did not support a conclusion that the shooting was gang-related. Gang tattoos, the use of gang signs, attending a gang member’s funeral, and hanging out with gang members did not mean that a person is an active gang member. Not all gang members commit crimes, and it was unusual for gang members to commit crimes with strangers in the car or with children present.
An expert on eyewitness testimony, Mitchell Eisen, testified that memory does not work like a camera, and that individuals will fill in memory gaps with inferences, accurate or not. A person may confuse a familiar face associated with an event with the perpetrator’s face, and will be more confident in an identification if it is confirmed that he made the right choice.
III. Closing arguments
The prosecution argued that the evidence showed “just your ordinary and unfortunately very typical gang murder.” Maris was a special witness; she was in the car before the shooting, and her testimony was corroborated by other witnesses and by physical evidence. She had no motivation to lie, and testified in spite of threats. Her testimony was consistent on all the important facts. Further, Dixon identified Cummings as the shooter. The prosecutor identified the motive of the shooting as retaliation against Eight Trey Gangsters, who Cummings believed to have committed Bowe’s murder. Although Bowe’s murder was not gang-related, it was what the Rolling 60’s believed that mattered. Cummings had a tattoo commemorating Bowe’s death, and there was other evidence that showed Bowe was involved in the gang using the name “Baby Bolt Da House.” Evidence revealed that Cummings was an active Rolling 60’s member known as “Rome,” and his tattoos established that he was a devoted gang member. Cummings’s escape evidenced consciousness of guilt. All the charges were supported by the evidence, and there was ample evidence that the defendants intended to promote and assist in criminal conduct by gang members: “It was for their gang, it was for their gang member, it was for the Rollin’ 60’s.”
Cummings’s counsel argued that the prosecution’s case was “a house of cards.” She argued that the only eyewitness who identified Cummings as the shooter was Dixon, and that his identification of Cummings in the six-pack photo array was inconsistent with his earlier description of the shooter. Dixon’s identification was also unreliable given his family’s prior acquaintance with Cummings’s family and the LAPD’s manipulation. Eyewitness identification can be unreliable. Maris was a snitch whose testimony was motivated by her desire to protect herself from charges of attempted murder and murder. Cummings’s counsel argued that the shooting was not gang-related, because there were no colors displayed, no signs thrown, and no statements on the street. Cummings’s tattoos did not show he was an active gang member. His commemorative tattoo for Bowe was a way of mourning a loved one. Cummings did not use violence to exit the police car, and was not handcuffed or belted in properly. LAPD had a “pattern” of hiding evidence and manipulating witnesses.
In rebuttal, the prosecution argued that the tattoos did show Cummings’s active gang membership. The motive for the shooting was a gang motive. Maris was a reliable witness even if she was protecting herself. There was ample evidence to convict Cummings.
DISCUSSION
I. The record is replete with conflict between trial counsel and the trial court.
Cummings argues that throughout the trial, intemperate and contentious interaction between his trial counsel and the trial judge resulted in evidentiary rulings which harmed his defense, violated his right to due process, and made his trial fundamentally unfair. Although he admits that his lawyer behaved inappropriately, he contends that the trial judge was prejudiced against him as a result.
Many acrimonious exchanges took place between Cummings’s counsel (hereinafter “counsel”) and the trial court. We summarize them as follows.
A. Discovery issues related to the escape count
Early in the trial, Cummings’s mother and Dixon’s mother had argued loudly in the hallway outside the courtroom. The trial court inquired into the incident, and Cummings’s mother told the court that she had filed a complaint against the LAPD about Cummings’s treatment.
The next day, counsel told the court that despite the “billions and billions of conferences with my client in jail,” she had just learned that following the complaint, the LAPD had conducted an internal affairs investigation into Cummings’s escape. The trial court denied the request to order disclosure of the investigation at this late date. When counsel continued to raise the discovery issue, the court commented that she “leave[s] everything to the last minute,” and counsel claimed she had been “hamstrung” and “shut down.” While cross-examining Officer Siurek, counsel again complained in a sidebar that it was “outrageous” that she had not had complete discovery, and stated that Officer Siurek had testified that there were photographs of his injuries. The trial court told counsel to “Stop lying. He didn’t say whether he knew there were photographs.” Counsel repeated that there were photographs. Shortly before, Officer Siurek had testified that he didn’t know whether photographs were taken. The trial court also had admonished the prosecutor for failing to obtain traffic collision and hospital reports, and the prosecutor asked the court not to “yell at me in front of the jury.”
Later, counsel also requested police reports, traffic reports, medical records, photographs, any internal investigation, results, and any officer’s statements. The trial court reminded counsel that personnel reports would only be discoverable through a Pitchess motion, and counsel said, “I believe I did four Pitchess in this case.” The court said it was aware of the motions counsel had filed and that counsel did not file a Pitchess motion, and counsel said, “That’s correct.” The court ordered a recess to obtain the accident and hospital reports.
At the subsequent hearing outside the presence of the jury, counsel made inaccurate statements about what was in the accident report. When she pointed out how Siurek’s testimony was inconsistent with the report, the court told her “If I were you I would be frothing at the mouth... putting my hands together and so ready to take advantage of all this.” When the court later stated, “The thing that concerns me is that you tend to make representations that are not at—not consistent with the material that you have,” counsel replied, “I’m going to take umbrage at that. I am an officer of the court. I’ve been a public defender 14 plus years. I’ve never knowingly made a misrepresentation to the court.” After counsel continued to defend herself at length and argued that the prosecution was attacking her to “kill the messenger,” the court stated, “the violins are getting so loud it’s difficult to hear you,” and added, “You know, I agree that you are in a difficult position; however, I don’t think you have to misrepresent yourself.”
After further discussion, Cummings’s counsel said, “It’s not about me. It’s about whether David Cummings has... effective assistance of a lawyer and whether he is getting a fair trial,... and it is not for my lack of asking for trying to get any of this information.” The trial court stated that it was concerned that the police had supposedly taken a statement from Cummings after the escape, and ordered the prosecutor to look into it.
The prosecutor informed the court the next day (again out of the jury’s presence) that LAPD Sergeant Vershueren had taken a statement from Cummings, who had also made a statement to another officer in connection with an internal affairs investigation. A city attorney brought in a copy of the internal affairs investigation, and the court reviewed the records in camera. The court later ordered the prosecutor to turn over certain items. Counsel asked for “sanctions and hearings to get to the bottom of this,” and the court agreed to give an instruction on late discovery but denied the request for a hearing. Counsel asked for a dismissal and the court stated,“Denied.”
Counsel had claimed that in the redacted report Cummings “says that he did not—he did not strike the officers.” The prosecution pointed out that no such statement appeared in the report, and counsel replied, “There’s no mention of striking the officers, so as a result again I’m inferring he did not admit to striking the officer.” The trial court rejoined: “You know, when you’re quoting or acting like you’re quoting from a document, to then make up, which is essentially the third time that you’ve done this, where you claim that there’s something in a document that you have in front of you and then it’s not there, that is a misrepresentation and as an officer of the court you shouldn’t be engaging with that.” Counsel responded that the court was accusing her of lying and “I resent the personalizing of this case.” In admonishing both counsel and the prosecutor that it wanted to proceed with the giving of evidence, the court repeatedly told counsel, who continued to argue, to “have a seat.”
Counsel later learned that Officer Algren, the prosecution’s gang expert, had interviewed Cummings after the escape. Officer Algren admitted he had done so without Mirandizing Cummings, and the trial court responded, “What the heck is wrong with you? [¶]... [¶] He’s in custody and you’re interviewing him? [¶]... [¶] You can’t use that. What planet do you live on?” Counsel asked for an Evidence Code section 402 hearing “on the right to counsel violation,” and the court denied the request.
There was continued controversy about the interviews in the LAPD internal affairs investigation of the escape. Eventually, counsel received a tape of Cummings’s statement to internal affairs officers, although Cummings’s earlier interview with Sergeant Vershueren had been lost. The court ruled that the prosecution could not use Cummings’s statement to Sergeant Vershueren, and when counsel asked for a hearing, the court stated: “the People can’t use the tape and neither can you. So the fact that it’s not here makes no difference.” Counsel again argued that the tape was exculpatory and the court said, “You know what, I don’t care,” and denied counsel’s request for a dismissal.
Counsel later asked Officer Siurek, “Did Sergeant Vershueren tell you he had interviewed David Cummings?” The prosecutor objected, and in a sidebar the trial court told counsel she could not use Cummings’s statements because they were hearsay and irrelevant. Counsel insisted that she had a good faith basis to continue, and the court stated: “No, she does not have a good faith basis.” Counsel retorted: “You guys don’t think I have a good faith basis for anything, that is clear. The record is really clear on that. The standards shift depending on who the speaker is. [¶] So I understand that’s the game that we’re playing here, but I can ask questions where I have a got [sic] good faith basis and we do have a dispute about whether they claimed he was head butted, whether they claimed he fell out of the car, whether they claimed he was kicked, whether they claimed he was struck. Those are consistently in all the reports. We will get those officers that have those statements, but right now I should be able to ask the officer in anticipation of their testimony.”
The prosecutor repeated that counsel had no good faith basis “when she has listened to her client’s tape and she knows the statements her client has made and is still asking those questions in bad faith.” The court said, “[t]his is just a continuation of a series of misrepresentations that [counsel] has made throughout this case to me,” and gave an example. Counsel then stated: “I want a hearing on this. I’m done with this. I want a hearing on this. I’ve never had this experience. Misrecollecting testimony is not misleading or lying. Both the court and counsel have done it and no one has accused them of lying, but if I misrecollect despite the fact that I’m getting four hours of sleep a night and working six days a week, somehow I’m lying.... [¶] Personal bias is outrageous. It’s outrageous, the treatment I’ve received in here. We are not getting a fair trial. I don’t know what the problem is.” The court responded, “the problem is that you have lied to me repeatedly,” and counsel said, “I have not and I’m asking for a hearing on that issue.” The court denied the request.
Later, when counsel cross-examined Officer Redshaw about the escape, counsel again tried to elicit whether he had spoken to Cummings. The court excluded the questions and denied counsel’s request to take a recess and contact her appellate department. At the end of her cross-examination, counsel stated, “Given the court’s rulings, I have no further cross at this time.”
B. The gang allegation
In a pretrial hearing, counsel requested discovery of the LAPD murder book in Jamie Bowe’s case. The prosecution opposed the request because Bowe’s murder was not gang-related, explaining that the issue was what the defendants believed about Bowe’s murder, not what actually happened. Officer Algren told the court that he had several conversations with Rolling 60’s gang members (although he “couldn’t give you dates times or even persons”) who said that the Rolling 60’s believed that Eight Trey Gangsters members were responsible for Bowe’s murder. Even without the retaliation motive, “this would still be a pretty clear gang crime” given the 25-year feud between the Rolling 60’s and Eight Trey Gangsters. The trial court ruled that the Bowe murder book would not be disclosed.
Before opening statements, when the prosecutor stated that she intended to use Algren’s statements about the conversations he had with gang members, the court responded: “That’s not going to come in. [¶]... [¶] [Y]ou’re not going to get some vague statement that the 60’s believed that 8 Trey Gangster Crips committed this murder [Bowe’s] and not attribute it to anybody, not attribute any date. There’s no way that’s coming in.” The prosecutor explained that there was other evidence, including Maris’s testimony, that the motive for the shooting was retaliatory, adding: “the People have always conceded, your honor, that [Bowe] was not killed by 8 Trey Gangster Crips and that is the reason why the murder book is not relevant. I will stipulate to that.... But other than that, the People have never indicated that we were not going to use this as the motive. We are conceding and we will stipulate that it wasn’t gang-related factually, but that has nothing to do with the state of mind of the defendants and their motive for going and doing this killing....”
Cummings’s counsel stated that she wanted to introduce evidence, including the murder book, to show that the prosecution expert had changed his theory about the motive for the murder from retaliation for Bowe’s murder to a general gang rivalry. Counsel argued that this went to the weight of the gang expert’s opinion and the strength of the evidence on the gang enhancement count. She wanted to “expose all this to the light of day.” The court ruled: “I’m going to preclude the prosecution from using this Jamie Bowe information and I’m going to preclude [counsel] from presenting it and you’re going to be limited to the expert’s testimony that it’s just a general rivalry between these two gangs, period. That’s it. You didn’t want the murder book turned over, it wasn’t turned over, that’s it.” The court went on to state that, without the murder book, the prosecution would be allowed to introduce evidence that the defendants believed that Bowe was killed by a rival gang, but that it had “a real big problem” with allowing Office Algren to testify that he heard from unspecified people on unspecified dates that the motive was retaliatory.
Neither side mentioned Bowe in the opening statements. On the day of Officer Algren’s testimony, the court agreed that as a gang expert he could rely on hearsay in support of his opinions, but the hearsay had to be reliable and competent and “I would not allow him to testify to information which is unsubstantiated as to source and date.” Officer Algren gave his opinion that the shooting benefitted the Rolling 60’s criminal gang, because all but one of the participants were gang members as shown by tattoos and other evidence, after the shootings they went to a location which was a known hangout where one of their homies was killed, and “[t]his is part of an ongoing feud between this and another gang and for one perceiving [sic] justice; namely, the murder of their homie or their friend which they memorialize with SIP tattoos.”
Counsel asked, “[I]sn’t it true that we had a hearing in this courtroom during the pendency of this case in which you testified that you were not going to use the homicide of Jamie Bowe as a motivation—for the gang motivation in this case for the killing of Burley Dixon and the shooting of Gregory Dixon?” The prosecutor objected and asked for a sidebar. The court stated, “[t]his is totally misstating what happened at that hearing” and “there was no commitment made by the witness or by the D.A. that that was not going to be part of the evidence in this case.” The transcript of the hearing merely showed the court’s ruling “that the murder book of that Jamie Bowe killing would not be turned over.”
Cross-examination resumed, and Officer Algren testified that his opinion that the defendants’ motivation for the shooting was to retaliate for Jamie Bowe’s murder was based on the defendants’ documented membership in the Rolling 60’s gang; the gang tattoos memorializing “Baby Bolt” and the photos of Hull and Cummings at Bowe’s funeral; gang paraphernalia and photographs of Bowe; and the return to Bowe’s house after the shooting.
Counsel then asked: “I am saying, taking out Miss Maris’ claims, what are the other factors upon which you base your opinion?” Officer Algren answered that an obvious one was that Bowe, a Rolling 60’s member, was “killed for whatever reason. Members of that gang who were his homeboys or his friends believed it was Eight Trey Gangsters for whatever reason. And there is an ongoing thirty-plus year feud between these two gangs that have resulted in the murders of probably hundreds of individuals over that time period. [¶] They believe that it is Eight Trey Gangsters. And they go to put in work in that hood, in that rival hood. They may not even have a good reason to believe that it is Eight Trey Gangsters, but simply the fact that somebody gets killed in their hood, obviously to them it is going to be a gang shooting, and they are going to go hit rival hoods.... [I]n this particular instance, for whatever reason, they felt it was Eight Trey Gangsters, and that’s where they went to do their mission.”
Counsel continued: “What is the basis of your opinion that at the time of January 6, 2005, when these shootings took place, the Sixties were of the opinion that the killing of Jamie Bowe had something to do with Eight Trey? What is the basis of your opinion, for that portion of your opinion?” The court said, “You can answer that, Officer.” Callandret’s counsel objected, “That may call for hearsay,” and Cumming’s counsel stated, “Well, I am not asking for hearsay.” The court stated: “Overruled. You may answer.”
Officer Algren said: “Part of the basis for that is simply the fact that they went to Eight Trey Gangsters to put in work. And I am inferring, based upon their tattoos, the loss of their friend, that they believe that Eight Trey Gangsters were responsible, and that’s why they are going to do the shooting. Part—” At that moment, counsel said, “Okay, let me stop you.” The prosecutor responded, “Your honor, I would object and let him finish his question.” The court said: “I don’t think he was finished yet. Was there something else that you were basing that on?” Officer Algren answered, “Yes.” The court asked, “What is that?” and Algren answered, “The other basis is that I spoke with Rolling 60 gang members; I don’t remember the names, dates and times—” Counsel interrupted Officer Algren, saying, “I will object to this because I know we are not going into hearsay.” The court rejoined: “Overruled. You asked the question, and he gets to answer it.” Counsel responded: “I said the nonhearsay basis for his opinion, or that’s substantiated. I did not elicit general, unsubstantiated hearsay for this answer, your honor.” The court continued, “You can answer the question, Officer.” Counsel again interjected: “I object to the court’s characterization of the information that I sought. I did not seek any hearsay that cannot be substantiated. The court knows it is not supposed to be used in a case—and especially a case like this.” The court replied: “you asked the question, and the officer gets to answer it. Go ahead, Officer.” Officer Algren answered, “I spoke with unknown Rolling 60 gang members after Jamie Bowe was killed who basically told me they thought Eight Trey Gangsters did the shooting.”
Later, during a sidebar, codefendant’s counsel complained about the open-endedness of Cummings’s counsel’s questioning: “[I]f counsel opens the door to something, I only want that it pertain to her client, not as to mine.” The court warned counsel: “If you ask open-ended questions, you are going to get everything and the kitchen sink. [¶]... [¶] You asked an open-ended question that elicited the information.... The officer did not offer it on direct; you brought it out.”
Before the prosecution rested, counsel stated (outside the presence of the jury) during a discussion of her witness list that she might call people from Bowe’s neighborhood to testify what people were saying at the time of Bowe’s murder. The court stated, “I can tell you that’s not going to come in.” Counsel rejoined: “Not with the court’s ruling, but, you know, it will just get looked at like every single other one.” The court responded, “You know, [counsel], you’re going to be lucky if you don’t join your client in custody by the end of this trial with your attitude and your disrespect to me.” Counsel replied, “I certainly understand that’s an issue here.”
C. The scope of the defense case
a. Denial of a police practices expert
During the prosecution’s case, counsel attempted to cross-examine Detective Radtke about issues related to the LAPD’s investigation, and the court sustained prosecution objections on hearsay and relevance grounds. During a sidebar, counsel stated that she wanted to elicit evidence on “the quality and integrity of this case to determine whether this is a righteous case or not and whether David Cummings is really the suspect.” The court responded, “you may be getting into certain things, but you’re not going to get into lots of things.” After counsel replied, “I’m going to fight you, your honor;” the court answered, “Well, you can fight me, but you’re not putting the LAPD on trial.”
During the defense case, counsel sought to call Tim Williams, a former LAPD supervisor, as an expert witness on police practices, to testify on the police mishandling of Maris as a witness and of Dixon’s photo identification. The court allowed an eyewitness expert, but not the LAPD expert; when counsel stated, “there is a pattern and practice of hiding of evidence that points to innocence with respect to Mr. Cummings. I need a police practices expert to be able to talk about—” the court interjected, “Denied.” When counsel continued to argue, the court stated: “Stop with the speeches. Save it for final argument.”
b. Impeachment of Dixon
Counsel attempted to ask Detective Garcia, who had interviewed Dixon while he was in the hospital, about Dixon’s statements; the court sustained hearsay objections by the prosecution. In a sidebar, counsel stated that the evidence was admissible as prior inconsistent statements, and the court rejoined that she had failed to confront Dixon with the transcript of the hospital interview, and “you are either going to do this the way the Evidence Code requires, or you are not going to do it.” Counsel argued: “You are mischaracterizing what I am trying to do. This is outrageous. This is classic inconsistent statements. And the court is, again, shutting us down....” The trial court explained that the references counsel made to the record did not support her argument and were a “mischaracterization of what’s contained here.” Counsel then rejoined: “I object to the court doing this. I am again asking for a hearing on whether I am making misrepresentations.... [D]oes anybody else get accused of being a liar under these circumstances? No. Just me.” The court replied, “No one else other than you has made misrepresentations to me,” adding that the page in front of the court to which counsel referred “doesn’t say what you say it says.” After the prosecutor directed the court to the correct page, counsel asked: “What is the big deal?... I am sorry, I am doing the best I can. There are not enough hours in the day for me to do everything I need to do in this case.” The court responded, “this is so incredibly unprofessional.”
During a sidebar shortly thereafter, counsel objected to “giggling or cackling from the D.A.,” adding that she never engaged in such behavior. The court said, “don’t get me started” and complained about counsel’s “very sarcastic tone of voice,” to which counsel responded, “the court’s tone of voice is dismissive, condescending, rude. The court has created an environment where it is almost impossible for me to work because of the personal attacks and the venom in the tone that is directed to me.” The court answered, “if you hadn’t lied to me about five or six times during this trial, there would be a better tone.” Counsel asked for specific incidents of lying, and the court responded, “They are all in the transcripts.” Counsel then complained that she was the “lightning rod” for the court’s anger and frustration, that “the rulings have been one-sided” and “an expression of personal antipathy towards me on the part of this court. And it has existed from almost the first day that I walked in and started seeking discovery in this case.”
The following exchange occurred:
“THE COURT: I will make this comment to you. You have an attitude that the end justifies the means and that you will do anything, including sacrificing your integrity, which I feel you have done repeatedly in this case, for the benefit of your client. And that is not a good way to conduct oneself.
“COUNSEL: That is an absolutely outrageous statement. I did not go to law school for all those years and work this career all those years to sacrifice my career for anybody. But am I going to fight for a client? Absolutely. And am I going to be cowed or bullied by personal attacks or immature, unprofessional behavior? Absolutely not.
“Am I seeking a mistrial under these circumstances? Absolutely not because I want the courts of appeal to rule and review all of the rulings and the behavior of the deputy D.A. in this case and this particular bench officer.
“THE COURT: And I will be happy for them to review this, [counsel].
“COUNSEL: As will I.
“THE COURT: Ecstatic.
“COUNSEL: As will I.”
c. Defense discovery
During a discussion outside the presence of the jury about whether counsel could call Cummings’s friend, Roy Jones, as a witness, the court asked whether discovery had been provided as to Jones. Counsel replied she had not turned anything over to the prosecution about Jones because she did not have any written reports from her investigator, who was “behind in his paperwork.” The court asked, “Do you think it might be a ploy on your part so you don’t have to turn over any discovery to the prosecution?” After complaining that “there was an ‘uh-huh’ from the audience, so now we have the audience also taking part in the disparaging of me and with the court, again just leaping to the most cynical construct instead of asking me facts,” counsel explained that she had called Jones late the night before, had spoken to him, and he was “considering” coming in to testify. After noting that counsel had not turned over any discovery to the prosecution, the court asked counsel to turn over a copy of her handwritten notes, and noted, “This discovery is supposed to have been completed thirty days prior to trial.” Counsel responded: “Well, that applies to the prosecution as well. So here we go again with another little hatefest party on some irrelevant issue where the court—you know, when we find taped statements of my client that are exculpatory, that’s no big deal. That’s no big deal at all, and not even a comment.” The court rejoined: “[Counsel], again, your sarcasm is offensive. And the reason why the taped statement [sic] of your client are of no moment to this case is because the prosecution is not able to use those against your client in anyway whatsoever.”
The next day, outside the presence of the jury, the parties discussed the defense gang expert. The prosecutor stated that she had just spoken to the expert and he had told her that he had spoken to witnesses with the defense investigator a year ago, without taking notes, although the investigator did conduct some interviews. This was the first the prosecutor had heard of any interviews. The court said: “No, because [counsel] doesn’t comply with 1054, and she hasn’t done it in this case. She hasn’t turned anything over to you.” Counsel represented that her expert’s testimony was “not really regarding personal interviews” and the prosecutor responded that the expert had told her he was going to testify that the crime was not gang motivated because he talked to people in the neighborhood, “interviews he’s conducted that I have never heard about until this morning.” Counsel retorted: “Excuse me. Even Mr. Gregory Dixon said on the stand that he’s never had, never seen 8 Trey activity in his neighborhood. This is not in dispute. These are the persons identified by the people in their murder book and their information. And Mr. Dixon testified to that fact directly in this case and in his cross in this case. This is not evidence outside the case. This is simply evidence that [the expert] is aware of.” The following ensued:
“THE COURT: You know, [counsel], once again, you are apparently misrepresenting things. This is about the sixth time you have lied to the court.
“COUNSEL: Again, the court is characterizing an offer of proof by the defense for which the court has no means to evaluate other than [the prosecutor’s] bald assertions and is concluding I’ve lied which is just further evidence of the court’s antipathy and bias towards myself.
“THE COURT: I have never had an attorney lie to me as many times in a case
“COUNSEL: I have never had a judge call me a liar even in my entire career. And this court has known me from the beginning of my career when we were on the third floor working when I was a baby 14 years ago.
“There’s no judge in the building that can tell the court of an instance in which I made a material misrepresentation or lied. There are certainly judges in the building that would be able to tell the court that in discussing testimony in a long trial, I’ve misrecalled as has counsel and has the bench in this case.
“So I am again objecting to the characterization of me being a liar and I am asking the court for a hearing as to whether or not I have lied. I am entitled to it and I get a finding to the bar adverse to [the prosecutor] and you if you cannot prove it. So these are serious accusations to be calling me a liar. I am not a liar.
“And you know, the court especially concluding all these things in light of the discovery violations by the people and no remedy whatsoever so far granted to the defense is only further evidence of the uneven handed way in which Mr. Cummings and his counsel have been treated through the pendency of this litigation.
“From the day I entered this courtroom I have received nothing but hostility and obstruction from this court that has continued through the trial.
“THE COURT: Stop your speeches. You have turned over no discovery on this to the prosecution.
“COUNSEL: Your honor, cite to me one instance of playing—me playing games when we’ve had findings that the People have hid taped statements of my client
“THE COURT: Stop making speeches.
“COUNSEL: —that are exculpatory.
“THE COURT: Stop now. You haven’t turned over one item of discovery in this case. Not one.
“COUNSEL: What are you talking about? I’ve not been able to get discovery, number one in this case. I filed three Pitchess motion [sic] on Sheriff Henderson and
“THE COURT: Stop. I’m talking about your discovery.”
After some further discussion, the court ruled that the defense expert could not testify that he was basing his opinion on any of the statements not disclosed to the prosecutor. Nevertheless, the issue resurfaced during the expert’s testimony, and the court explained, “And you know how all this really could be settled in the way it’s supposed to be settled under 1054 is if your experts write a report and those reports are turned over 30 days prior to trial.” Counsel responded: “Your Honor, for the court to be saying that to the defense in this case with all the things that we have discovered has happened—” The court interjected, “Stop with the speeches.” When counsel persisted in focusing on the prosecutor’s “shenanigans” the court stated: “You know, every time I tell you something, you say what the prosecution did or didn’t do, which we’ve talked about at length. And you’re going to get a jury instruction if you frame one or suggest one, and I mentioned that a long time ago in this case. You have not provided me anything.” Counsel then accused the prosecutor of lying to the court, acting in bad faith, and hiding evidence from the defense. The court attempted without success to end the discussion (“No more speeches, please”). Counsel went on: “The court is treating the defense in an unfair and unevenhanded fashion. And the court is buying the poison and the garbage fed to it on a daily basis by misrepresentations of [the prosecutor] and this hearing is an example of that.”
II. Cummings has forfeited his claim of judicial bias.
Cummings argues that these angry exchanges between his trial counsel and the trial court show judicial bias against him, and that as a result of the bias the trial court made rulings against the defense. Although she made angry and intemperate statements to the trial court, however, Cummings’s trial counsel never requested that the trial court recuse itself. Counsel never sought disqualification or made any effort to comply with Code of Civil Procedure section 170.3, which provides the procedure to challenge a judge’s qualification to preside over further proceedings once the judge refuses to disqualify himself or herself. Instead, counsel continued with Cummings’s trial, asking only for a hearing regarding whether she had lied to the court.
Cummings admits that “[c]ounsel... misrepresented the state of the record on several occasions.”
“‘If a judge refuses or fails to disqualify herself, a party may seek the judge’s disqualification. The party must do so, however, “at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification.” (Code Civ. Proc., § 170.3, subd. (c)(1).)’” (People v. Guerra (2006) 37 Cal.4th 1067, 1111 [quoting People v. Scott (1997) 15 Cal.4th 1188, 1207].) As in Guerra and Scott, Cummings’s trial counsel was aware of all the facts that Cummings cites on appeal in support of his claim that the trial judge was biased. Nevertheless, counsel did not claim that the trial judge should recuse herself, or that Cummings’s constitutional rights were violated because of judicial bias, apart from one statement: “We are not getting a fair trial.” “‘It is too late to raise the issue for the first time on appeal.’” (People v. Guerra, supra, 37 Cal.4th at p. 1111.)
Cummings points to counsel’s statement “I want the courts of appeal to rule and review all of the rulings and the behavior of the deputy D.A. in this case and this particular bench officer.” That statement, however, came just after counsel stated she would “absolutely not” seek a mistrial, apparently confident that the court’s rulings would fall on appeal on the merits. Counsel did not preserve the issue of judicial bias on appeal.
III. Cummings has forfeited his claim of judicial misconduct.
Cummings also makes the related claim that the trial court committed judicial misconduct by its heavyhanded treatment of his trial counsel. He points to the court’s “antagonism” toward trial counsel, “sometimes in front of or within the hearing of the jury,” and claims that the conflict led to adverse rulings by the court that hampered the defense.
A claim that “the trial court ‘failed to maintain an atmosphere of neutrality’ and was unduly harsh to his trial counsel, undermining his right to an unbiased jury and prejudicing his guilty and penalty verdicts” is not preserved for appellate review unless the defendant “raise[s] the objection below on the grounds asserted in this claim, and... seek[s] a jury admonition regarding any of the alleged instances of judicial intemperance.” (People v. McWhorter (2009) 47 Cal.4th 318, 373; People v. Sturm (2006) 37 Cal.4th 1218, 1237.) Since he made no such objections and sought no jury admonition, Cummings has similarly forfeited his claim of judicial misconduct.
IV. Cummings’s claims of judicial bias and misconduct are without merit.
In any event, however, we conclude that the claims of judicial bias and/or misconduct lack merit. Cummings has a due process right to a fair and impartial trial judge under the California and United States constitutions. (People v. Guerra, supra, 37 Cal.4th at p. 1111.) The trial judge also has a duty under section 1044 “to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters....” Given that duty, “[w]hen an attorney engages in improper behavior, such as ignoring the court’s instructions or asking inappropriate questions, it is within a trial court’s discretion to reprimand the attorney, even harshly, as the circumstances require.” (People v. Guerra, supra, 37 Cal.4th at p. 1111.) Nevertheless, “‘the court “commits misconduct if it persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense or create the impression it is allying itself with the prosecution.”’” (People v. McWhorter, supra, 47 Cal.4th at p. 373.)
We have reviewed the record and the exchanges in the trial transcript pointed to by Cummings, which we summarized above. While there was considerable vitriol in trial counsel’s complaints about the court and the prosecutor, and while the court accused counsel of misrepresentation and prevarication on several occasions, Cummings has failed to establish he was deprived of his constitutional right to a fair and impartial trial. The trial court was angry at the defense’s failure to provide any discovery and what the court perceived (as Cummings admits, often correctly) as counsel’s misrepresentations regarding the record. Cummings’s counsel reacted aggressively to any admonition by the court, and the conflict escalated to what at times became mutual accusations of unprofessionalism. While more restraint would have been advisable, “‘[o]ur role... is not to determine whether the trial judge’s conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judge’s behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial.’” (People v. McWhorter, supra, 47 Cal.4th 318, 373.)
The record does not show that Cummings did not receive a fair trial. Although there were bitter exchanges between the trial court and Cummings’s counsel about the discovery related to the escape count, much of the debate concerned whether Cummings had struck or injured the officers, and the jury eventually acquitted Cummings of escape by force, finding him guilty only of the lesser included offense of escape.
The trial court and counsel also argued extensively about discovery of the murder book from Bowe’s killing in relation to the gang enhancement. The court did not allow either party to introduce the murder book, which showed that Bowe’s murder was not gang-related. It was trial counsel’s own open-ended question that invited the prosecution’s gang expert to testify to hearsay that some gang members believed that the Bowe murder was gang-related.
The trial court refused during the defense case to allow Cummings’s counsel to call a police practices expert on LAPD policy, to elicit hearsay statements from Detective Garcia, to call Roy Jones as a witness in the absence of any discovery, and to allow the defense gang expert to testify to opinions based on statements not disclosed to the prosecutor. These evidentiary rulings elicited some of the most acrimonious statements and accusations of bias by Cummings’s counsel. Nevertheless, “a trial court’s numerous rulings against a party—even when erroneous—do not establish a charge of judicial bias, especially when they are subject to review.” (People v. Guerra, supra, 37 Cal.4th at p. 1112.)
Most importantly, the vast majority of the exchanges Cummings points to as evidence of judicial bias took place at sidebar or outside of the presence of the jury. Cummings does not point to any statement by the court in the jury’s presence that might “‘seem to lean toward or lend [the court’s] influence to one side or the other.’” (People v. Sturm, supra, 37 Cal.4th at p. 1237.) Cummings’s failure to claim that the exchanges and the court’s alleged bias against his trial counsel influenced the jury is fatal to his claim of judicial bias or misconduct.
Cummings also argues that his trial counsel’s actions provoked bias by the trial court, and that he therefore received ineffective assistance of counsel. To establish ineffective assistance, Cummings must show both that his trial counsel’s performance was deficient and that there is a reasonable probability that but for the counsel’s mistakes, the result of the trial would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687–694 [104 S.Ct. 2052, 2064].) As the record does not show judicial bias or misconduct, Cummings has not demonstrated that the outcome of the trial would have been different if his counsel had behaved better, and any claim of ineffective assistance necessarily fails.
V. Cummings does not demonstrate that any of the adverse rulings were error.
Cummings argues that the trial judge’s bias caused evidentiary errors which prejudiced him at trial. His contention that “the trial court’s evidentiary rulings reveal a pattern of inconsistent determinations that compromised the fairness of the trial and unfairly favored the prosecution... [is] essentially a claim of judicial bias, which defendant forfeited by failing to assert it below.” (People v. Farley (2009) 46 Cal.4th 1053, 1110.)
Cummings does not make freestanding claims of legal error as to the individual evidentiary rulings. We note, however, that we find no abuse of discretion in the trial court’s rulings.
Although Cummings claims that the court’s discovery rulings related to the escape by force count were “erroneous,” we note that he concedes that the trial court eventually allowed him certain discovery. Further, he concedes that none of the rulings harmed him directly, given that the jury convicted him only of the lesser included offense of escape.
The court’s ruling that the defense was not entitled to the murder book in the prosecution of Jamie Bowe was not an abuse of discretion, because the defense sought to establish that Bowe’s shooter was not a gang member, and the prosecution conceded that Bowe was killed by “a crazy person.” Whether the Bowe killing was actually a gang killing was not at issue. Nor did the court abuse its discretion in declining to strike Officer Algren’s testimony based in part on statements made by Rolling 60’s members that they blamed Eight Trey Gangsters for the killing. Counsel asked an open-ended question, and thus invited any error. (See People v. Reyes (1976) 62 Cal.App.3d 53, 66.)
The court also did not abuse its discretion in refusing to allow Cummings’s gang expert to testify regarding how the LAPD should have “handled” Maris and how the LAPD should have conducted Dixon’s photo identification. Counsel did not provide an offer of proof advising the court of the actual content of the expert’s testimony, and the proffer was therefore inadequate to meet Cummings’s burden to show that the evidence was relevant. (People v. Brady (2005) 129 Cal.App.4th 1314, 1332.) As to the trial court’s rulings regarding counsel’s attempts to impeach Dixon, Cummings does not specify which specific rulings were erroneous, and so we do not consider this claim.
VI. The trial court did not have a duty to instruct the jury on accomplice liability.
Cummings claims the trial court prejudicially erred when it refused a request to instruct the jury on accomplice liability regarding Maris, the main prosecution witness. The court denied the request because “there has to be substantial evidence that the witness[] is an accomplice, and in this case there’s no evidence that she’s an accomplice.”
Section 1111 provides that “[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 “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.” (Ibid.) “‘If there is evidence from which a jury could find that a witness is an accomplice to the crime charged, the court must instruct the jury on accomplice testimony. [Citation.] But if the evidence is insufficient as a matter of law to support a finding that a witness is an accomplice, the trial court may make that determination and, in that situation, need not instruct the jury on accomplice testimony. [Citation.]’” (People v. Lewis (2001) 26 Cal.4th 334, 369.)
Maris was in the car with Cummings before, after and at the scene of the shooting. “[T]his fact without more merely means that [Maris] was an eyewitness and not necessarily an accomplice to the crimes.” (People v. Lewis, supra, 26 Cal.4th at p. 369.) There was no evidence that Maris encouraged, facilitated, or assisted the shooting of the Dixons. She had just met Cummings, and later cooperated with the police. There was no evidence of a possible motive for her to participate in the shooting. (Id. at p. 370.) Cummings does not identify any evidence in the record to support a finding that Maris had “‘“guilty knowledge and intent with regard to the commission of the crime.”’” (Id. at p. 369 [witness must be a principal under section 31 to be chargeable with an identical offense as an accomplice].) The trial court did not err in refusing to instruct on accomplice liability.
We also note that the substantial majority of Maris’s testimony was independently corroborated. Cummings’s presence in the car was corroborated by his fingerprints on the car doors, and even Cummings acknowledges that “[t]here is little room for doubt that Maris was in the car with whomever [sic] shot the Dixons.” Dixon identified Cummings as the shooter, and Dixon confirmed that he wore an orange jacket at the time of the shooting. Other eyewitnesses testified that the car resembled Callandret’s car and that the driver appeared to be female. There was ample corroborating evidence.
DISPOSITION
The judgment is affirmed.
We concur: ROTHSCHILD, Acting P. J., CHANEY, J.