Opinion
F082692
02-28-2023
THE PEOPLE, Plaintiff and Respondent, v. JOSE MANUEL GONZALEZ, Defendant and Appellant.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and Matthew A. Kearney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF165899A, John D. Oglesby, Judge.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and Matthew A. Kearney, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MEEHAN, J.
INTRODUCTION
Defendant Jose Manuel Gonzalez was arrested and charged with shooting two men, one fatally. Following a jury trial, defendant was convicted of first degree murder (Pen. Code, §§ 187, subd. (a), 189; count 1), attempted premeditated murder with an enhancement for personal use of a firearm (§§ 664/187, subd. (a), 189, 12022.53, subd. (c); count 2), and being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 3). In a bifurcated proceeding, the trial court found true that defendant had one prior serious or violent felony within the meaning of the "Three Strikes" law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).)
All further statutory references are to the Penal Code unless otherwise specified.
Defendant was sentenced to a total term of 94 years to life, as follows. On count 1, the trial court sentenced defendant to a term of 25 years to life, doubled to 50 years to life under the Three Strikes law, with an additional five years for the prior serous felony conviction enhancement. (§ 667, subd. (a)(1).) On count 2, the court sentenced defendant to seven years to life, doubled to 14 years to life, with an additional 20 years for the firearm enhancement and five years for the prior felony conviction enhancement. On count 3, the trial court imposed the upper term of six years, stayed under section 654.
During trial, the prosecutor introduced portions of two of defendant's recorded jail calls and a statement he made to Deputy Warmerdam following his arrest. On appeal, defendant claims that the trial court erred when it denied his motion to admit additional portions of the jail calls under Evidence Code section 356 and denied his motion to admit an additional statement to Warmerdam under Evidence Code section 1250. Defendant also claims that the trial court erred when it granted the prosecutor's motion to amend the information after the close of evidence to add a premeditation allegation to the attempted murder count.
The People dispute that any errors occurred, but contend that any errors in excluding additional portions of the two jail calls and defendant's additional statement to Deputy Warmerdam were harmless in any event.
We find no errors with the trial court's rulings, and we affirm the judgment. On our own motion, we shall direct the trial court to issue an amended abstract of judgment correcting the clerical errors in section 1 to reflect that defendant was convicted of violating section 187 rather than section 184. (People v. Jones (2012) 54 Cal.4th 1, 89.)
FACTUAL SUMMARY
I. Prosecution Case
A. Shootings
In November 2015, Michael B. was employed by a trucking company in Arvin. On November 5, 2015, at approximately 7:00 p.m., he was working in the office when he heard a vehicle pull up. A male voice called for "Johnny" three times, loudly. Michael did not see the vehicle or the person looking for Johnny, but he called back that Johnny was not there and was probably at his house. Michael heard the vehicle drive away, and 60 to 75 seconds later, he heard three shots. He then called his boss to report that he thought his boss's brother just got shot.
Juan D., who went by Johnny, lived in a house on the trucking company property. That evening around 7:00 p.m., he was preparing to eat dinner with Antonio R. and Angelica. A white SUV pulled up and he went outside, thinking it might be his son, who drove a white SUV. Johnny testified that a man he knew as "Panic," whom he identified in court as defendant, got out with a black revolver. Two other men also got out, one armed with a shotgun and the other armed with a machete and a Taser.
Johnny testified that Panic told him, "[G]et in the car. ... I'm gonna kill you." Johnny refused and Panic said, "[G]et in the car or I kill you right here." Johnny again refused and they started wrestling. The man with the machete hit Johnny in the back with the blade, although he was not cut, and tased him. While struggling with all three men, Johnny got ahold of the Taser and tased one of the men. Panic then shot Johnny in the right temple from approximately two feet away. Johnny heard a male voice yelling for Antonio and, as he ran toward the back of the house, Antonio came outside. Johnny told Antonio to run and then heard two shots. Johnny fell on the ground, but was able to get back up and go inside the house.
Deputies with the Kern County Sheriff's Office responded to the scene and located Antonio face down on the ground outside, deceased. He had been shot in the back with a shotgun, and the projectile, which split in two, went through his spine, heart, and both lungs. Johnny was inside the house, bleeding from a wound to his face. He was transported to the hospital and released after getting five stitches.
B. Identification of Shooter
At the hospital, Sergeant McIrvin spoke with Johnny, who was shaken up. Johnny described the suspects as unknown Hispanic males and stated he did not know who shot him. The next day, Johnny identified the man who shot him as Panic, and deputies developed defendant as a suspect after linking him to that nickname through a records check.
The day after the shootings, Lieutenant Anderson showed Johnny a six-pack photo lineup that was prepared by someone else and included defendant's photo. Johnny was confident the suspect went by Panic, but he vacillated between two photos, one of defendant and one of another man, stating he could not really tell. When asked to select which photo looked most like Panic, Johnny selected the photo of the other man. He also told Anderson that he had seen Panic driving around in a similar vehicle.
Eleven days later, Sergeant McIrvin presented the same six-pack lineup to Johnny. By then, Johnny had left town out of fear for his life and McIrvin met him at a location between Las Vegas and Barstow, where he was staying. Johnny expressed certainty that Panic shot him, but again vacillated between the same two lineup photos.
At trial, Johnny testified that Panic, whom he identified in court, was friends with Angelica and he had seen Panic approximately twice before the shootings. During crossexamination, Johnny stated he had limited recall of what he told deputies after the shootings and viewing his prior testimony would not assist him, and he explained that he had two strokes in 2020 and had lost some of his memory. However, he was positive Panic shot him and he always knew Panic was the shooter. He only told deputies otherwise initially because he feared for his life.
C. Physical Evidence 1. Surveillance Camera Footage
Footage from surveillance cameras on the trucking company property was too grainy to show identifying features of the suspects, the make and model emblems of the vehicle, or the license plate number. However, Sergeant McIrvin testified that, having watched the footage many times since 2015, the involved vehicle was a white Yukon Denali with damage to the front and back bumpers. The footage showed the vehicle drive onto the property at 7:18 p.m. A suspect with sunglasses on his head and something bulky on his chest, consistent with ballistic protection or padding, exited the vehicle from the driver's door and approached the office. The suspect thereafter reentered the vehicle and drove north toward Johnny's residence. At 7:20 p.m., the driver exited the vehicle at Johnny's house. Two other suspects could be seen outside the vehicle, and a struggle occurred after Johnny came outside. Antonio exited the house, and then Johnny and Antonio ran. At 7:21 p.m., the three men got back into the vehicle and were gone by 7:22 p.m.
2. D.M.'s White Yukon
Defendant's mother, D.M., owned a white 2006 Yukon Denali. She testified that she and her five children all used it, and that defendant lived with her on and off in November 2015. The vehicle was seized by law enforcement five days after the shootings and returned three months later. The vehicle had body damage to the front, rear and side, which D.M. said occurred in Texas prior to the shootings. Sergeant McIrvin testified that the damage to D.M.'s Yukon was consistent with the damage on the Yukon seen in the surveillance footage.
3. Tire Impressions
The area around Johnny's residence was an open field used as a parking lot, and there were multiple tire tracks in the area. Based on surveillance footage and appearance of recency, deputies photographed two tire tracks they thought were the most likely to belong to the suspects' vehicle.
When D.M.'s Yukon was seized, it had three different tire brands on the wheels: Goodyear Wrangler tires on the two rear wheels, a Kelly Safari tire on the front passenger side wheel, and a Firestone Transforce tire on the front driver's side wheel. None of the tires on the vehicle matched the two tire tracks photographed on the night of the shootings. However, Sergeant McIrvin testified that it was easy to change tires on a vehicle because it does not take long.
4. DNA Evidence
Deputies located a pair of black Spy brand sunglasses, a blue stun gun/flashlight, and one sandal outside Johnny's residence and submitted the items for DNA testing. The sunglasses, which were swabbed on the nose piece and both ear pieces, contained a mixed DNA profile with approximately 95 percent from the major contributor and five percent from the minor contributor. Defendant could not be excluded as the major contributor, and it was 15 quintillion times more likely that defendant's DNA was on the sunglasses rather than that from a random, unrelated Hispanic person.
Johnny could not be excluded as a contributor of the DNA on the sandal, and it was 510 trillion times more likely that it was his DNA rather than the DNA from a random, unrelated Hispanic person. Defendant was excluded as a contributor of DNA on the stun gun and results were inconclusive as to Johnny.
D. Jail Calls
Almost five years after the shootings, in June 2020, defendant was arrested by a United States Marshal's taskforce that included members from local law enforcement. The prosecutor played excerpts from two telephone calls defendant made from jail following his arrest. On June 4, 2020, defendant called D.M. and told her the United States Marshals "got" him. She asked if he was "running away from the parole" and he said no. On June 15, 2020, defendant called an unidentified woman. She asked if he was going to get bail and he responded that he did not think so because he had been on the run for five years.
E. D.M.'s Testimony on Alibi
D.M. testified that on November 5, 2015, she was at her mother's house in Lamont from 3:30 p.m. until at least midnight for a gathering of approximately 50 to 100 people in honor of her brother, who had passed away. Her Yukon was parked in front of the house the entire time and she testified she was out front cooking and serving food, so she never lost sight of it. She also testified that she had only one set of keys for the vehicle, which remained in her pocket all night, and that defendant never left. However, Sergeant McIrvin subsequently testified that when he tried to locate defendant after an arrest warrant was issued and spoke to D.M., she never told him that defendant was with her for 10 hours on the day of the shootings.
D.M. testified that law enforcement came to her house one time and a detective told her defendant killed someone. However, she did not know where defendant was. He went to Mexico to visit, but she did not know for how long, and between 2016 and 2020, she saw him at times in Bakersfield. Defendant also told her that he was in San Francisco. Defendant never told her police were looking for him and although she knew he was on parole, she denied knowing why or if he committed a crime. She acknowledged that defendant's nickname was Panic and that, prior to November 2015, he had "'panic when you see me'" tattooed on his chest.
II. Defense Case
A. Alibi Witnesses
Defendant's former girlfriend, brother, and cousin testified that on November 5, 2015, they were with him at the reception at his grandmother's house following services for his late uncle. L.M., who had a conviction for welfare fraud, testified that 1012 years earlier, she and defendant had been in an on-and-off again relationship for four years, but they remained friends and talked often. As far as she knew, defendant lived with his mother and different people drove his mother's vehicle, including him. She was not aware defendant went by Panic and she called him Manuel.
There were approximately 50-100 people at the house on that evening, and L.M. testified she never left defendant's side except briefly to use the bathroom. They left together around midnight, spent the night at a friend's apartment, and parted company the next morning. She did not hear from defendant again until he was jailed five years later, and she did not know where he was during that time. She visited him in jail multiple times after seeing his arrest on the news, but denied they discussed the case.
Defendant's cousin, R.V., testified that he never saw defendant leave their grandmother's house that night, and he and defendant were among the last to leave. He testified he was with defendant all day until approximately 8:00 p.m. and they were never apart for a 10- to 15-minute period of time. Defendant's mother was with defendant, but R.V. did not know who L.M. was and did not recall a woman with defendant, although he said one could have been with defendant the entire time. R.V. denied seeing a lot of people leave. He said people were coming and going throughout the night, "[e]verybody kind of was just being there," and he "could see everything that was going on."
Sergeant McIrvin testified the distance between defendant's grandmother's house in Lamont to the scene of the shootings in Arvin was approximately 8-10 miles and the drive time was 15 minutes, one way.
Finally, defendant's brother, J.G., who had a misdemeanor conviction for destroying or concealing evidence, confirmed that some of defendant's friends called him Panic and he knew about defendant's chest tattoo. He testified that he was with defendant all night on November 5, 2015, as was L.M. When J.G. left between 11:00 p.m. and 12:00 a.m., approximately, defendant was still there and had been there the entire time. J.G. testified that their mother was not with defendant the entire time because she was cooking, but she was outside.
B. Law Enforcement Testimony
Deputy Medeiros and Sergeant Avila testified regarding Johnny's description of the suspects at the scene that night. Medeiros testified that Johnny told him the suspects were Hispanic males and one had a mustache, but he did not see them clearly. On crossexamination, Medeiros testified that Johnny described the vehicle as a white Yukon.
Sergeant Avila testified that Johnny did not indicate he knew the suspects and he did not know why the shootings happened. In his report, Avila wrote the suspects were unknown and although he did not recall at trial, he testified at the preliminary hearing that Johnny said he did not know who did this to him. Johnny told Avila the suspects were three Hispanic males in a white Yukon with custom rims.
Deputy Grantham testified that it was five to seven miles from Lamont to Arvin and about 15 minutes roundtrip, and he thought he could make the drive one-way in under 10 minutes. However, he had not driven the route and would defer to the deputy who had.
C. Expert Testimony on Memory
Given Johnny's failure to select defendant's photo from the lineup despite identifying the shooter as Panic, the defense called Dr. Mitchell Eisen, a psychologist who testified as an expert in eyewitness memory and suggestibility. Dr. Eisen explained that unlike a camera, memory is malleable. We revisit and rethink our memories, updating them in accordance with our current understandings and beliefs, and memories can become distorted, sometimes significantly. Due to limits on attentional capacity, people can only take in so much and some things never register in long-term memory. Other things are transferred to and held in long-term memory, but people pull up big things, piece them together, and fill in the gaps with inferences. Small memory gaps are easier to fill and when our inferences are good, our memories are accurate and detailed. Large memory gaps are not easy to fill and when inferences are not good, the gap is filled with an error. Further, memory does not improve over time.
With respect to photo lineups, Dr. Eisen testified that cognitive interviews, developed to avoid suggestiveness, involve asking someone to describe an event, either from a photo or from imagination. The person is then asked to describe the event a different way, such as in reverse order, and then again, such as if they were watching it from across the street. In this way, more details are obtained from the witness. Doubleblind controls involve using different officers to prepare the lineup and to present the lineup, to avoid suggestiveness on the part of the officer presenting the lineup. Dr. Eisen stated that cognitive interviews are frequently used in Europe but rarely in the United States. However, as of 2020, double-blind lineups are employed in California.
Lieutenant Anderson testified that cognitive interviews were not standard procedure for the Kern County Sheriff s Office, but he was trained in the method and he utilized that training, including when he presented Johnny with a photographic lineup the day after the shootings.
Dr. Eisen agreed that people can and do make accurate identifications, but described it as potentially tricky. In general, the sooner someone is presented with an identification test, the better because details drop off dramatically with the passage of hours and days. As well, the longer the exposure the witness had to the face without distraction, the better. Nevertheless, some people register a face well with only a glance while others do not, even with long exposure. If a clean, nonsuggestive identification test is given and there is a strong, fast, confident identification made, that "tends to be a decent piece of data indicating that th[e] person is really experiencing a match to memory and ... are likely really recognizing them from the event." Thus, if the witness remembers a face well and a fair six-pack lineup is used, identification of the suspect should be strong and quick because recognition occurs. However, confidence, which often increases with time, is a useful indicator of accuracy only at the moment a nonsuggestive identification test is performed. After that, other factors influence confidence, such as one's own belief or the belief of others that the right person was identified.
Dr. Eisen also discussed estimator variables, which include the length of time the witness viewed the suspect, how well-remembered the view was, how much time had passed, and whether the witness was traumatized, stressed, or threatened; and system variables, which are the procedures used to collect and preserve eyewitness evidence. Estimator variables can adversely affect memory, but there is no way to know how they affect any specific individual. System variables, in contrast, always compromise the reliability of the evidence if the procedures employed are problematic or substandard.
In this case, the first lineup interview with Johnny was a double-blind, cognitive interview, and Dr. Eisen described it as "very good," "very clean." However, an eyewitness identification is supposed to be a strong recognition experience. Vacillation between different photos indicates the absence of a strong recognition, and confidence does not necessarily translate to accuracy. Further, a statement that two people most resemble the suspect is a comparative judgment as opposed to a definitive recognition experience.
III. Rebuttal
In rebuttal, the prosecution questioned Ana Ovando, an investigator with the public defender's office, regarding her interview with R.V. Ovando testified that R.V. said he spent most of the night talking to defendant and he never saw defendant leave that night. R.V. also told Ovando there were lots of people coming and going throughout the night.
DISCUSSION
I. Motion to Admit Additional Statements by Defendant
A. Background
During motions in limine, the parties litigated the admission of portions of three recorded telephone calls defendant made from jail and defendant's postarrest statement to Deputy Warmerdam that he was known as Panic. With respect to the jail calls, detailed below, the prosecutor sought to admit portions relating to defendant's flight from the area, as evidence of consciousness of guilt. (People v. Anderson (2018) 5 Cal.5th 372, 391 ["Evidence showing consciousness of guilt, such as flight or escaping from jail, is generally admissible within the trial court's discretion."]; People v. Hill (1967) 67 Cal.2d 105, 120 ["It is settled law that the reason flight is relevant is because it may demonstrate consciousness of guilt."].) Defendant objected to admission but argued, alternatively, for the inclusion of additional portions of his jail calls, as evidence of alibi and for context under Evidence Code section 356. Similarly, he argued that if his statement to Warmerdam concerning his nickname was admitted, the remainder of his statement, which included his alibi and his belief he was the intended target when his uncle was shot, should be admitted under Evidence Code section 356.
The trial court admitted two of the three jail calls and defendant's statement to Warmerdam, limited to the portions sought by the prosecutor and pending an evidentiary hearing to determine compliance with Miranda, which was held later that day and resulted in a finding of admissibility. (Evid. Code, § 402.) Defendant subsequently filed a motion for reconsideration on the ground that additional portions of the jail calls and the statement to Deputy Warmerdam were admissible under Evidence Code section 356, and a separate motion seeking admission of those additional portions as state of mind evidence under Evidence Code section 1250. The court denied both motions.
Miranda v. Arizona (1966) 384 U.S. 436.
During trial, defendant requested admission of D.M.'s jail call statement that defendant was at his grandmother's house and never left. He argued that in light of D.M.'s testimony, this evidence was admissible as a prior consistent statement under Evidence Code sections 1236 and 791. The court denied the request.
On appeal, defendant argues that the exculpatory portions of the jail calls were admissible under Evidence Code section 356, and that his explanation to Deputy Warmerdam that he fled the area because he believed he was the intended target of the shooting that killed his uncle was admissible under Evidence Code section 1250. Defendant claims the trial court erred in excluding this evidence and the errors were prejudicial under Watson. (People v. Watson (1956) 46 Cal.2d 818, 837 (Watson).)
B. Standard of Review
On appeal, we presume the trial court's evidentiary rulings are correct and defendant bears the burden of demonstrating error. (People v. Giordano (2007) 42 Cal.4th 644, 666; People v. Anthony (2019) 32 Cal.App.5th 1102, 1139-1140.) "A trial court has broad discretion to admit or exclude evidence. We will not disturb its ruling unless there is a showing the court abused this discretion by acting in an arbitrary, capricious, or patently absurd manner resulting in a miscarriage of justice." (People v. Fayed (2020) 9 Cal.5th 147, 189-190.) "'[W]e review the ruling, not the court's reasoning and, if the ruling was correct on any ground, we affirm.'" (People v. Zamudio (2008) 43 Cal.4th 327, 351, fn. 11; accord, People v. Brooks (2017) 3 Cal.5th 1, 39.)
C. Jail Calls1. No Error
During trial, the prosecutor introduced excerpts from two recorded jail calls. The first call was between defendant and his mother, D.M., on June 4, 2020, as follows:
"[D.M.]: What's going on son? What's going on? Ah.
"[Defendant]: They got me.
"[D.M.]: Mm. And who, and who fished you the.
"[Defendant]: Marshalls.
"[D.M.]: The, the ones from, from.
"[Defendant]: The U.S. Marshalls.
"[D.M.]: I know but is it because of the.
"[Defendant]: Yeah.
"[D.M.]: You're running away from the parole?
"[Defendant]: No."
The second call was between defendant and an unidentified female on June 15, 2020, as follows:
"[Female]: Hello.
"[Defendant]: Yeah, (unintelligible) I mean, well, I'm being for- I-I okay I go to court on the 22nd arr-uh, for arraignment because.
"[Female]: Wait, don't you go to go to court, uh, whats today, on the 16th, tomorrow?
"[Defendant]: Today, not tomorrow's the pa-parole violation.
"[Female]: And that's gonna get dropped?
"[Defendant]: Yeah-yeah babe, that doesn't matter.
"[Female]: And then you're gonna have a bail or you're not gonna have a bail?
"[Defendant]: Well fuck. I don't think they're going to give me a bail.
"[Female]: I don't think so either.
"[Defendant]: Cause I was on the run for, like, five years. "[Female]: I know."
With respect to the call with D.M., defendant sought admission of the following additional statements: "I need you tell everybody to fucking so they could go to court, so they can talk to Gloria or whatever that I was at grandma's house," and "Let them, let them know that I never left from there." With respect to the call with the unidentified woman, defendant sought to admit his additional statements as follows: "And but anyways, I mean, I got my alibi, I mean I got my whole family right here," and "They're-they're right there fucking say, they're willing to come to court and say that I had never left my grandma's house. I mean. But they-they're trying to say that they have-they have the video of the truck."
On appeal, defendant claims these additional statements were admissible under Evidence Code section 356, which provides, "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence." Known as "the rule of completeness" (People v. Armstrong (2019) 6 Cal.5th 735, 786-787; accord, People v. Westerfield (2019) 6 Cal.5th 632, 696), the purpose of the section "'is to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed. [Citation.] Thus, if a party's oral admissions have been introduced in evidence, he may show other portions of the same interview or conversation, even if they are self-serving, which "have some bearing upon, or connection with, the admission ... in evidence."' [Citation.] The rule reflects the '"'equitable notion'"' that a party seeking introduction of one part of a statement cannot selectively object to introduction of other parts necessary to give context. [Citation.] 'Although framed as an expansion of the concept of relevancy, Evidence Code [section] 356 most often operates in the manner of a hearsay exception'" (People v. Armstrong, supra, at pp. 786-787).
We find no error with the trial court's denial of defendant's motion to admit portions of the phone calls pertaining to his alibi. As stated, "'[t]he section permits introduction only of statements "on the same subject" or which are necessary for understanding of the statements already introduced. The "other conversation" referred to in Evidence Code section 356 must have some bearing upon, or connection with, the admission or declaration in evidence.'" (People v. Johnson (2022) 12 Cal.5th 544, 605 (Johnson), quoting People v. Breaux (1991) 1 Cal.4th 281, 302.) While "'"'"courts do not draw narrow lines around the exact subject of inquiry"'"'" (Johnson, supra, at p. 604, quoting People v. Clark (2016) 63 Cal.4th 522, 600), '"[statements pertaining to other matters may be excluded'" (Johnson, supra, at p. 605, quoting People v. Samuels (2005) 36 Cal.4th 96, 130).
A trial court has broad discretion to admit or exclude evidence and "'[a] merely debatable ruling cannot be deemed an abuse of discretion.'" (Johnson, supra, 12 Cal.5th at p. 605, quoting People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390.) While the court did not expressly address defendant's argument under Evidence Code section 356, the issue was thoroughly argued by the parties, and we review the court's ruling rather than its reasoning. (People v. Brooks, supra, 3 Cal.5th at p. 39; People v. Zamudio, supra, 43 Cal.4th at p. 351, fn. 11.)
The admitted evidence was relevant to defendant's flight and five-year absence from the geographical area where he lived and the shootings occurred, while the excerpts he sought to admit pertained to his alibi for the evening of the shootings. The discussion of alibi occurred after the conversation had moved on from the portions admitted, and defendant fails to persuade us that his alibi for the time of the crime constitutes the same subject as his subsequent flight from the area. Moreover, the portions admitted were neither taken out of context nor confusing or misleading. Under these circumstances, we find no abuse of discretion in the exclusion of these additional portions of the jail calls.
2. Any Error Harmless
Error in the admission or exclusion of evidence is reviewed under the standard set forth in Watson, which requires a determination "whether there is a 'reasonable probability' that a result more favorable to the defendant would have occurred absent the error." (People v. Aranda (2012) 55 Cal.4th 342, 354; accord, People v. Brooks, supra, 3 Cal.5th at pp. 47-48.) Although we need not reach defendant's argument of prejudice in the absence of error, if we assume error, it was harmless.
There was no dispute a gathering was held at defendant's grandmother's house on November 5, 2015, following his uncle's funeral service. The issue was whether defendant could persuade the jury that he could not have committed the shootings because he was at the house the entire evening, or at least create reasonable doubt as to his involvement. Defendant was not precluded from offering evidence of his alibi at trial, and three family members and a former girlfriend testified he was at his grandmother's house that evening. As such, his alibi statements in the jail calls to D.M. and the unidentified woman were merely cumulative of alibi evidence offered at trial.
Sergeant McIrvin testified that he confirmed the event.
Furthermore, this was a strong case for the prosecution. There was surveillance video of a white Yukon like the one D.M. owned at the crime scene, with body damage consistent with the damage she confirmed existed prior to the shootings; a man with sunglasses was seen getting out of the vehicle; and a pair of sunglasses with DNA matching defendant's profile was found on the ground. In addition, Johnny had met defendant before; he knew defendant by his nickname, Panic; and he identified the shooter as Panic the next day. On these facts, we do not agree that there is a reasonable probability the result would have been more favorable to defendant had additional portions of the jail calls regarding alibi been admitted. Therefore, even if we assume error, it was harmless.
B. Statement to Deputy Warmerdam
Deputy Warmerdam questioned defendant following his arrest, and the trial court admitted defendant's statement to Warmerdam that his nickname was Panic. In addition, during the Evidence Code section 402 hearing, Warmerdam testified that he asked defendant about the death of his uncle and the shootings. Defendant responded that he was not involved and was at his grandmother's house all day. He also said he left the area because he thought people were after him rather than his uncle, who had been shot and killed.
In the trial court, defendant sought the admission of his statement to Warmerdam that he left the area because he thought the people who shot his uncle were after him, pursuant to Evidence Code sections 356 and 1250. The prosecutor disputed that applicability of the state of mind exception, but also argued that if the statement was admitted, it would open the door to the introduction of gang evidence, including on the issue of motive. On appeal, defendant limits his claim to admissibility as state of mind evidence under Evidence Code section 1250.
"Hearsay is an out-of-court statement that is offered for the truth of the matter asserted, and is generally inadmissible" (People v. McCurdy (2014) 59 Cal.4th 1063, 1108, citing Evid. Code, § 1200; accord, People v. Sanchez (2016) 63 Cal.4th 665, 674), subject to exception. One such exception, Evidence Code section 1250, provides:
"(a) Subject to [Evidence Code] Section 1252, evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when:
"(1) The evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or
"(2) The evidence is offered to prove or explain acts or conduct of the declarant.
"(b) This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed." (Evid. Code, § 1250.)
Evidence Code section 1252 provides, "Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness."
However, this exception does not apply when the statement in question is made "under circumstances that indicate a lack of trustworthiness." (People v. Peoples (2016) 62 Cal.4th 718, 757, citing Evid. Code, §§ 1250, 1252.) "A statement is trustworthy within the meaning of section 1252 of the Evidence Code when it is '"made in a natural manner, and not under circumstances of suspicion ...."'" (People v. Harris (2013) 57 Cal.4th 804, 844; accord, People v. Dworak (2021) 11 Cal.5th 881, 907.)
Defendant exercised his right not to testify in this case and, as a general matter, "'"[a] defendant in a criminal case may not introduce hearsay evidence for the purpose of testifying while avoiding cross-examination."'" (People v. Gurule (2002) 28 Cal.4th 557, 605.) "'To be admissible under Evidence Code section 1252, statements must be made in a natural manner, and not under circumstances of suspicion, so that they carry the possibility of trustworthiness. Such declarations are admissible only when they are "'made at a time when there was no motive to deceive.'"'" (People v. Ervine (2009 47 Cal.4th 745, 778-779.) Arrestees have a strong motive to minimize or deny culpability for a crime and statements made postarrest during interrogation suggest untrustworthiness. (People v. Jurado (2006) 38 Cal.4th 72, 130.) In such situations, "[t]he need for cross-examination [is] . _ compelling." (People v. Livaditis (1992) 2 Cal.4th 759, 780.) Further underscoring the questionable nature of defendant's postarrest statement, defendant did not leave when his uncle was shot. Rather, he remained in the area for days, attended services for his uncle and the gathering at his grandmother's house, and then left only after the shootings in this case occurred.
Under these circumstances, we find no abuse of discretion in the denial of defendant's motion to admit his additional postarrest statement to Deputy Warmerdam. (People v. Jurado, supra, 38 Cal.4th at p. 130.) Therefore, we do not reach the issue of alleged prejudice.
II. Amendment of Information to Allege Attempted Murder was Premeditated
A. Section 1009
Finally, during the jury instruction conference following the close of evidence, the trial court granted the prosecutor's motion to amend the information to add a premeditation allegation to the attempted murder charge. Defendant objected, but did not seek to reopen evidence or request a continuance on any ground. Defendant now argues that the allegation was not supported by evidence adduced at the preliminary hearing, and that the late amendment deprived him of the opportunity to present a defense against the allegation.
A prosecutor's right to amend the information is governed by statute. Section 1009 provides that "[a]n information may be amended 'for any defect or insufficiency, at any stage of the proceedings,' so long as the amended information does not 'charge an offense not shown by the evidence taken at the preliminary examination.' (§ 1009.) 'If the substantial rights of the defendant would be prejudiced by the amendment, a reasonable postponement not longer than the ends ofjustice require may be granted.' [Citation.] If there is no prejudice, an amendment may be granted 'up to and including the close of trial.'" (People v. Goolsby (2015) 62 Cal.4th 360, 367-368; accord, People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1580-1581; People v. Winters (1990) 221 Cal.App.3d 997, 1005.) "'The questions of whether the prosecution should be permitted to amend the information and whether continuance in a given case should be granted are matters within the sound discretion of the trial court and its ruling will not be disturbed on appeal absent a clear abuse of discretion.'" (People v. Hamernik (2016) 1 Cal.App.5th 412, 424, quoting People v. Winters, supra, at p. 1005; accord, People v. Arevalo-Iraheta, supra, at pp. 1580-1581.)
Section 1009 provides in full, "An indictment, accusation or information may be amended by the district attorney, and an amended complaint may be filed by the prosecuting attorney, without leave of court at any time before the defendant pleads or a demurrer to the original pleading is sustained. The court in which an action is pending may order or permit an amendment of an indictment, accusation or information, or the filing of an amended complaint, for any defect or insufficiency, at any stage of the proceedings, or if the defect in an indictment or information be one that cannot be remedied by amendment, may order the case submitted to the same or another grand jury, or a new information to be filed. The defendant shall be required to plead to such amendment or amended pleading forthwith, or, at the time fixed for pleading, if the defendant has not yet pleaded and the trial or other proceeding shall continue as if the pleading had been originally filed as amended, unless the substantial rights of the defendant would be prejudiced thereby, in which event a reasonable postponement, not longer than the ends of justice require, may be granted. An indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination. A complaint cannot be amended to charge an offense not attempted to be charged by the original complaint, except that separate counts may be added which might properly have been joined in the original complaint. The amended complaint must be verified but may be verified by some person other than the one who made oath to the original complaint."
B. No Error
First, the timing, alone, does not support defendant's claim of error. The reason for the omission is not clear from the record, but the prosecutor recognized it during the jury instruction conference, suggesting it was merely an oversight. In any event, the amendment was not untimely under the statute. Instead, the proper focus for a claim of error is on notice and the opportunity to present a defense, viewed through the lens of the evidence presented at the preliminary hearing. (People v. Arevalo-Iraheta, supra, 193 Cal.App.4th at pp. 1580-1581; People v. Peyton (2009) 176 Cal.App.4th 642, 656-658; People v. Pitts (1990) 223 Cal.App.3d 606, 906.)
Defendant argues that the prosecutor presented no evidence of motive or planning at the preliminary hearing, and the manner of the attempted murder did not demonstrate premeditation and deliberation. As a result, he claims he lacked notice of the allegation and the opportunity to prepare a defense. We disagree.
The defense theory in this case focused on alibi in the main and neither party placed particular emphasis on the allegations that the murder and attempted murder were premeditated. This was understandable given that an allegation a crime was premeditated requires only a showing the crimes "'"'occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.'"'" (People v. Morales (2020) 10 Cal.5th 76, 88 (Morales).) Here, the evidence showed that the suspects arrived at the trucking company looking for Johnny, continued on to his house after stopping at the office, exited their vehicle armed with weapons, and proceeded to shoot Johnny and Antonio. (People v. Nelson (2011) 51 Cal.4th 198, 213 [taking up firearm, climbing out of a moving car, sitting on window frame, reaching across roof, bracing, and aiming at victim sufficient to show intent to kill and premeditation]; People v. Perez (2010) 50 Cal.4th 222, 230 [shooting a single bullet at someone from close range that could have inflicted mortal wound supported findings of intent to kill and premeditation]). It is these circumstances underlying the shootings that support the premeditation allegations.
Relevant to defendant's argument, more than 50 years ago, the California Supreme Court "identified 'three basic categories' of evidence . . . generally found sufficient to sustain a finding of premeditation and deliberation: (1) planning activity, or 'facts about how and what [the] defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing'; (2) motive, or 'facts about the defendant's prior relationship and/or conduct with the victim from which the jury could reasonably infer a "motive" to kill the victim'; and (3) manner of killing, or 'facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a "preconceived design" to take his victim's life in a particular way for a "reason" ....'" (Morales, supra, 10 Cal.5th at pp. 88-89, quoting People v. Anderson (1968) 70 Cal.2d 15, 26-27.) The court later "'"emphasized that [these] guidelines are descriptive and neither normative nor exhaustive, and that reviewing courts need not accord them any particular weight."'" (Morales, supra, at p. 89, quoting People v. Rivera (2019) 7 Cal.5th 306, 324.) The guidelines "provide[] 'a framework to aid in appellate review,' but .. . do[] not 'define the elements of first degree murder or alter the substantive law of murder in any way.'" (Morales, supra, at p. 89, quoting People v. Perez (1992) 2 Cal.4th 1117, 1125.)
Thus, contrary to defendant's argument, the prosecutor was not required to adduce evidence of motive, and evidence of planning and the manner of killing was demonstrated through the circumstances underlying the crimes-a vehicle arrived on the property with three men who were armed with a pistol, shotgun, machete, and Taser; the vehicle stopped at one building where the driver appeared to make contact with someone and then proceeded to Johnny's residence; and Johnny and Antonio were shot outside the residence. This evidence was introduced at the preliminary hearing, and premeditation was alleged as to the murder charge from the outset. Whatever the reason for the omission from the attempted murder charge, the same evidence supporting premeditation as to murder supported premeditation as to attempted murder. As such, defendant's claim that he was deprived of notice lacks merit.
Furthermore, this case was originally charged as a gang case, which supplied the motive under the prosecution theory. However, the prosecutor moved to dismiss the gang enhancements attached to counts 1 and 2 at the preliminary hearing and, during motions in limine, the prosecutor dismissed the gang enhancement attached to count 3. As a result, no gang evidence was introduced at trial.
We also observe the absence of any discernible prejudice. At trial, counsel argued, "It could have been done much sooner. This is now being done at the end of trial when it could have changed tactical decisions knowing another life charge would be alleged because [section] 189 makes Count 2 on its own life and it's not life as is. So it could have changed tactical decisions of counsel and it could have been done much earlier than after the close of all the evidence." However, neither trial counsel nor appellate counsel identified any specific prejudice from the amendment.
Trial counsel's assertion that tactical decisions could have been affected was vague and unsupported. Notably, trial counsel did not seek to reopen evidence and did not seek a continuance for any reason; and the defense theory of alibi was not impacted by the addition of the premeditation allegation. Appellate counsel argues that trial counsel might have elected to pursue a defense that defendant fired reflexively after being Tased, but trial counsel did not make that argument, and nothing prevented counsel from advancing that particular defense theory prior to the amendment. (See People v. Canizales (2019) 7 Cal.5th 591, 602 [attempted murder requires specific intent to kill].)
Accordingly, we find no error.
DISPOSITION
The trial court is directed to order the issuance of an amended abstract ofjudgment correcting section 1 to reflect that defendant was convicted of violating section 187 rather than section 184.
The judgment is affirmed.
WE CONCUR: LEVY, Acting P. J. FRANSON, J.