Opinion
E074698
03-08-2021
The PEOPLE, Plaintiff and Respondent, v. Munir Mtanews HAWARA, Defendant and Appellant.
The Kent Law Firm and Jeffrey Donald Kent, Fullerton, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts I, III.A, III.B, III.C, IV, and V.
The Kent Law Firm and Jeffrey Donald Kent, Fullerton, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant Munir Mtanews Hawara owned a liquor store. He hired one Willis Simmons to burn down a rival liquor store. Simmons tried to burn it down once, but failed. Simmons then subcontracted the job to one Randy Ramirez. Ramirez tried to burn down the rival store three times, but he, too, failed. The scheme was exposed when Simmons's sister contacted police.
A jury found defendant guilty on four counts of arson of a structure. ( Pen. Code, § 451, subd. (c).) On all four counts, state of emergency enhancements were found true. ( Pen. Code, § 454, subd. (a)(2).) On two counts, accelerant device enhancements were found true. ( Pen. Code, § 451.1, subd. (a)(5).) Defendant was sentenced to 11 years 8 months in prison, along with the usual fines, fees, and ancillary orders.
Defendant contends, among other things, that the prosecutor improperly cross-examined his character witnesses by asking them if it would change their opinion if they "knew" or "learned" about his commission of the crimes; he maintains that the only correct form for this type of cross-examination is to ask if it would change their opinion if they "heard" about his commission of the crimes. He also contends that his trial counsel rendered ineffective assistance by failing to object to the improper cross-examination.
In the published portion of this opinion, we hold that a defense character witness who testifies based on his or her own opinion — rather than based solely on the defendant's reputation — can be asked on cross-examination if he or she knows about the defendant's bad acts. Alternatively, we will hold that any error was harmless, because defendant's commission of the crimes was amply shown by other evidence.
In the unpublished portion of this opinion, we conclude that defendant has not shown any other error. Hence, we will affirm.
See footnote *, ante .
II
STATEMENT OF FACTS
Defendant went by the first name "Mark." He owned Tyler Market at Tyler Street and Wells Avenue in Riverside. A store called Sunny's Liquor was kitty-corner across the intersection. Sunny's had a security gate, so it would be hard to break into it when it was closed. Access to the back and roof of Sunny's was blocked by a chain link fence, with barbed wire, and a pit bull.
A. A Series of Arson Fires at Sunny's Liquor.
Throughout 2016, a state of emergency was in effect in California due to drought.
1. January 3, 2016.
Fire investigator Captain Ray Mendoza investigated a fire at Sunny's that occurred around 2:00 a.m. on January 3, 2016. It had been started by a Molotov cocktail, as shown by the presence of a cigarette lighter, a wick or fuse, and broken glass, as well as by the burn pattern. The outside of the store suffered fire damage.
Surveillance video showed someone lighting something in his hand and throwing it at the front door.
2. March 4, 2016.
Fire investigator C.B. investigated a fire at Sunny's that occurred on March 4, 2016. The point of origin was just inside a front window; the fire had blown the window out. There had been an unusual amount of heat at floor level. C.B. was not able to determine the cause of the fire until he watched a surveillance video. The store suffered fire damage, including the broken window, broken liquor bottles, burnt flooring, and a burnt counter.
We accord C.B. protective nondisclosure because defendant is contending that the trial court erred by excluding potentially embarrassing information about him. (See part III.B, post. )
A surveillance video showed someone pouring gasoline through the mail slot and igniting it.
3. April 27, 2016.
Fire investigator David Greyshock investigated a fire at Sunny's that occurred on April 27, 2016. It had been started by throwing a Molotov cocktail at the front door, as shown by a cloth wick, broken glass, and the burn pattern. A second, unbroken Molotov cocktail was found on the roof. There was fire damage to the front door; the inside of the store suffered smoke damage. Surveillance video showed someone run up and throw something downward, followed by a burst of flame.
4. November 11, 2016.
Captain Mendoza also investigated a fire at Sunny's that occurred on November 11, 2016. A gas can had been left outside. The burn pattern indicated that someone had set fire to the gas in the can. The front door was damaged. The fire had partially penetrated the front door; one exterior wall was burned all the way through to the inside.
Surveillance video showed a male wearing a hoodie pouring gas across the storefront and igniting it.
B. Testimony of Accomplice Willis Simmons.
Willis "Huero" Simmons had pleaded guilty to two counts of arson, based on the first two fires. He was in shackles when he testified.
Simmons had prior convictions for unlawful possession of a firearm, theft, assault, domestic violence, plus two prior convictions for forgery and two for burglary.
Simmons did odd jobs for defendant, such as painting the store windows. Defendant talked to Simmons about having Simmons beat up the owner of Sunny's. In November 2015, he offered Simmons a "couple hundred dollars" to burn Sunny's down. Defendant explained that Sunny's was "taking all his customers" by lowering its beer prices. On January 3, 2016, around 3:00 a.m., Simmons threw a Molotov cocktail at the front door of Sunny's. He accidentally left his lighter at the scene. A couple of days later, he told defendant what he had done. Defendant gave him $200, but said, "That's not the way it should be done."
Simmons admitted that he did not want to testify, because he would be "labeled in prison or on the street" "[a]s a snitch." Through much of his testimony, he maintained that defendant asked him only to "scare" or "[i]ntimidate" the owner of Sunny's and never specifically asked him to burn Sunny's down. In pleading guilty, however, he had admitted that defendant asked him to burn Sunny's down. When confronted with this admission, he confirmed that defendant asked him to burn Sunny's down, not just to scare the owner.
Simmons did not want to get arrested, so he subcontracted the job to his acquaintance Randy "Psycho" Ramirez. Ramirez poured gas in the mail slot and set it on fire. Simmons reported this to defendant, who gave him $300 but said again, "[T]hat's not how it's supposed to be done ...." Defendant offered Simmons $1,000 "if it was done correctly." Ramirez went on to set one or two more fires at Sunny's. Simmons claimed that he split the $300 with Ramirez. Simmons's sister, Georgia Villarreal, testified that Simmons told her that defendant offered him $10,000 to burn down Sunny's. He gave her details that were consistent with his testimony at trial.
Villarreal saw one of the surveillance videos on the news. She recognized Simmons from his "hunchback" and the way he walked. On November 15, 2016, she contacted investigators. They contacted Simmons, who gave them a statement that was generally consistent with his testimony at trial.
According to Villarreal, this was the video of the fire on November 11; it showed someone pouring gas all along the side of the building, as in the November 11 fire. However, according to all of the other evidence, it was Ramirez, not Simmons, who set this fire.
On November 18, 2016, at the request of investigators, Simmons visited defendant, at his store, while wearing a wire.
Simmons brought up "this business, across the street," and said "the guy" wanted to know when defendant would "get the rest of the money." Defendant replied, "If he finish the job." Simmons said, "I already gave him what you gave me last time." Defendant said, "Okay."
Defendant complained that it was not "fair" to expect him "to pay for something that wasn't done." "[T]he job wasn't done right." "Nothing was done like the way we talked ...." "[W]e talk[ed] about the work inside[,] not outside[.]" "Anybody can do it from outside. I can do it from outside. [¶] ... [¶] Like the way he did it." "[N]othing was done, it was only the door." "I passed by there. It's [sic ] was ... only on the door."
Defendant assured Simmons, "I'm willing to work with you.... [D]on't you think I'm running away from that." "I give you $300, right?" "I did pay you, right? [¶] ... [¶] First time. Second time. Third time." He cautioned: "I don't want you to call me and don't come to the store.... [W]hen the store's done then I will come and pay you." Simmons said, "I'll talk to Psycho today." Defendant replied, "Yes, please."
It was the defense theory that defendant and Simmons were discussing the painting of store windows.
C. Testimony of Accomplice Randy Ramirez.
Ramirez had pleaded to guilty to two counts of arson. He was in shackles when he testified.
Ramirez had prior convictions for unlawful possession of a weapon and receiving stolen property.
According to Ramirez, Simmons offered to split $10,000 with him if he burned down a certain liquor store. Later, Simmons pointed to a person outside a liquor store, kitty-corner across the street from the one he was supposed to burn down, and identified him as the person who was paying. Simmons told him the person's name was either Mark or Hawara (Ramirez did not remember which).
The first time Ramirez attempted to burn down the store, he poured gas in through the mail slot, then threw in a burning rag.
The second time, the mail slot was blocked, so he "threw a gas line on ... the doors and windows." The gas can blew up, almost in his hands, so he "just took off."
The third time, he threw one Molotov cocktail at the door and another at the roof, then immediately took off running. Simmons asked Ramirez to try again, but he refused. Ramirez claimed that he never actually got paid.
From the physical evidence, it seems that Ramirez reversed the sequence of the April 27 and November 11 fires.
III
INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant raises multiple claims of ineffective assistance of counsel. "To make out a claim that counsel rendered constitutionally ineffective assistance, ‘the defendant must first show counsel's performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice, i.e., a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different.’ [Citation.] To make out an ineffective assistance claim on the basis of the trial record, the defendant must show ‘(1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding.’ [Citation.]" ( People v. Hoyt (2020) 8 Cal.5th 892, 958, 257 Cal.Rptr.3d 784, 456 P.3d 933.)
A.-C. D. Failure to Object to the Prosecutor's Impeachment of Defendant's Character Witnesses.
See footnote *, ante .
Defendant contends that his counsel rendered ineffective assistance by failing to object to the prosecutor's improper cross-examination of his character witnesses.
1. Additional factual and procedural background.
Defendant called Nolan Bryeans and Rene Torner to testify, at least in part, as character witnesses.
Thus, Bryeans testified that, in his opinion, based on his experience and also based on his discussions with others, defendant was honest and trusting.
On cross-examination, the prosecutor asked Bryeans, "Would it change your opinion at all if you knew that [defendant] had offered money to someone else to beat up an owner of another liquor store?"
She also asked, "Would it change your opinion if you learned that [defendant] offered money to someone else to damage or destroy another person's property?"
She then asked, "Would it change your opinion to learn that [defendant] paid someone else not once, not twice, but three times for burning someone else's building?"
Similarly, Torner testified that, in his opinion, based on his experience and also based on his discussions with others, and defendant was honest and sincere.
On cross-examination, the prosecutor asked Torner, "Would it change your opinion if you knew that [defendant] had offered someone money to beat up an owner of another liquor store?"
She also asked, "And if you learned that [defendant] had paid someone money not once, not twice, but three different times to burn down another's building, would that affect your opinion that he is an honest person?"
Defense counsel did not object to any of these questions.
2. Discussion.
In a criminal action, the defendant may introduce evidence of his or her own good character. ( Evid. Code, § 1102, subd. (a).) Such evidence may be in the form of a witness's own opinion, based on the witness's perceptions; or in the form of the defendant's reputation, based on what the witness has heard from others. (Ibid. ; see also Evid. Code, §§ 800, 1324.)
Once a witness testifies, on direct, to the defendant's good character, it is a common and accepted method of cross-examination to ask whether the witness is aware of instances of the defendant's bad character. A variant of this is to ask, as here, whether the witness's opinion would change if the witness became aware of instances of the defendant's bad character.
Defendant argues that the only proper form for this line of questioning is to use the words "if you heard" about the instance of bad character, and that to use the words "if you learned" or "if you knew" is improper.
Actually, the rule is that, when the witness has testified to the defendant's reputation , based on what the witness has heard, the proper form is to ask, "if you heard." However, when the witness has testified to the witness's own opinion , based on the witness's perceptions, it is perfectly proper to ask, "if you knew." (1 McCormick on Evid. (8th ed.) § 48.) In each instance, the cross-examination question is tailored to undermining the claimed basis for the witness's testimony.
Before 1967, when the Evidence Code went into effect, a defendant's character witness could testify only in the form of reputation; character testimony in the form of an opinion was inadmissible. ( People v. Gordon (1894) 103 Cal. 568, 573-574, 37 P. 534.) Hence, it was also the rule, at that time, that the cross-examiner was limited to asking, "if you heard" and was prohibited from asking, "if you knew." (E.g., People v. Marsh (1962) 58 Cal.2d 732, 745-746, 26 Cal.Rptr. 300, 376 P.2d 300.) However, since the enactment of Evidence Code section 1102, allowing character testimony in the form of an opinion, this prohibition no longer exists.
Rather, "[w]hen, as here, a witness is called to express an opinion as to the good character of the defendant, the prosecution must have the opportunity to let the jury test the validity of the opinion or the weight to be given to it by asking whether the holder of the opinion has knowledge of events or acts which have indisputably[ ] occurred." ( People v. Hempstead (1983) 148 Cal.App.3d 949, 954, 196 Cal.Rptr. 412, italics added.) For example, in People v. Lopez (2005) 129 Cal.App.4th 1508, 29 Cal.Rptr.3d 586, a character witness testified to the defendant's good character in the form of an opinion. ( Id. at p. 1527, 29 Cal.Rptr.3d 586.) The prosecutor then cross-examined her about the defendant's criminal history. ( Ibid. ) On appeal, the defendant argued that "the prosecutor should have asked about what [the witness] had heard, not about what she knew." ( Id. at p. 1528, 29 Cal.Rptr.3d 586.) The appellate court disagreed: "[T]he rule invoked by defendant [is] limited to reputation witnesses. When a witness offers an opinion of a defendant's good character, it is often based on personal knowledge as well as reputation. [Citation.] This opens the door for the prosecutor to offer rebuttal evidence of defendant's character. [Citation.] ... The prosecutor can test the witness's opinion by asking about his or her knowledge of the defendant's misconduct [citation] ...." ( Ibid. )
The events or acts may have "indisputably" occurred, as in Hempstead , but this is not a requirement. It is enough that "the cross-examiner ha[s] in his possession information that reasonably leads him to believe that the acts of conduct by defendant have in fact been committed or the reports of their commission have been generally circulated. [Citation.]" (People v. Pic'l (1981) 114 Cal.App.3d 824, 891, 171 Cal.Rptr. 106, disapproved on other grounds by People v. Kimble (1988) 44 Cal.3d 480, 488, 244 Cal.Rptr. 148, 749 P.2d 803.)
Defendant cites People v. Aguilar (1973) 32 Cal.App.3d 478, 108 Cal.Rptr. 179 and People v. Qui Mei Lee (1975) 48 Cal.App.3d 516, 122 Cal.Rptr. 43. Neither is relevant here.
In Aguilar , the character witness testified to the defendant's reputation. ( People v. Aguilar, supra , 32 Cal.App.3d at pp. 482-483, 108 Cal.Rptr. 179.) He was cross-examined using "have you heard" questions. ( Id. at p. 483 and 483 fn. 1, 32 Cal.App.3d 478.) The appellate court approved: "In form the questions fit the classic mold of impeachment of character witnesses. [Citations.]" ( Id. at p. 483, 108 Cal.Rptr. 179.) This does not support the claim that "do you know" questions are not proper.
Qui Mei Lee is even farther off the mark. The issue there was whether a character witness could be cross-examined about the acts for which the defendant is on trial; it held that, under the circumstances, the witness could. ( People v. Qui Mei Lee, supra , 48 Cal.App.3d at pp. 526-528, 122 Cal.Rptr. 43.) There was no issue regarding the form of the questions. (See ibid. )
Defendant does not contend that it was improper here to cross-examine the character witnesses about the acts for which he was on trial.
Here, defense counsel asked the direct questions in somewhat blended form. She asked each witness if he had an opinion of defendant's character, based on both personal perceptions and discussions with others. Nevertheless, because the witnesses testified to an opinion about defendant's good character, based, at least in part, on their perceptions, it was perfectly proper to cross-examine them about whether it would change their opinion if they knew or learned about instances of defendant's bad character.
Our case People v. Hurd (1970) 5 Cal.App.3d 865, 85 Cal.Rptr. 718 involved similarly blended testimony. There, a witness gave an opinion about the defendant's good character, based on his personal experiences with the defendant and also based on meeting other people who knew the defendant. ( Id. at p 877, 85 Cal.Rptr. 718.) On appeal, the defendant argued that cross-examination using "have you heard" questions "was improper because [the witness] had not testified to the reputation of the defendant but had given his opinion as to the character of defendant." ( Id. at p. 879, 85 Cal.Rptr. 718.) We agreed that there was "some logic" to this. ( Id. at p. 880, 85 Cal.Rptr. 718.) We noted, however, that "the foundation for [the witness's] opinion was his personal acquaintance with defendant and his having met other people who knew defendant. Under these circumstances it would not seem inappropriate that the prosecution be permitted to test the witness' knowledge ...." ( Ibid. , italics added.) For the same reasons, "do you know" questions would have been equally appropriate.
Because the prosecutor's cross-examination was proper, defense counsel's failure to object was not deficient.
Separately and alternatively, it also was not prejudicial. Even if defense counsel had objected — and even if the objections had been sustained — the prosecutor would simply have asked the same questions in "if you heard" rather than "if you knew" form. We see no reasonable possibility that this would have changed the outcome. Defendant claims the "if you knew" form, when applied to the current charges, is prejudicial because it asks the jury to assume the defendant is guilty. We disagree, for two reasons. First, both "if you heard" and "if you knew" are hypothetical. Asking "if you knew" does not assert that the charges are true; it merely asks what the witness's opinion would be if they were true. Second, the prosecution presented ample evidence that the charges were, in fact, true. A couple of questions asking a witness to assume this could not have changed the jury's verdict. ( People v. Qui Mei Lee, supra , 48 Cal.App.3d at p. 528, 122 Cal.Rptr. 43 [asking character witness if he had heard of current charges, if error, was harmless; "long before [the witness] was cross-examined as to whether he had heard of the acts mentioned by the prosecutor, the prosecutor had already placed evidence of all those acts before the jury as integral parts of the People's case."].)
See footnote *, ante .
DISPOSITION
The judgment is affirmed.
We concur:
McKINSTER, J.
MILLER, J.