Opinion
F081995
04-12-2023
THE PEOPLE, Plaintiff and Respondent, v. KYRONE JARAY HAYGOOD, JR., Defendant and Appellant.
Moran Law Firm and Amanda K. Moran for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F18906596. Houry A. Sanderson, Judge.
Moran Law Firm and Amanda K. Moran for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DETJEN, ACTING P. J.
Defendant and appellant Kyrone Jaray Haygood, Jr., was charged with the murder of Brandon S. (Pen. Code, § 187, subd. (a)). The information further alleged he personally and intentionally discharged a firearm that proximately caused the victim's death (§ 12022.53, subd. (d)) and committed the murder while he was engaged in the commission or attempted commission of a qualifying felony, i.e., robbery (§ 190.2, subd. (a)(17)). Following trial, the jury found defendant guilty of first degree murder and found true the special allegations. Defendant filed a new trial motion, which was denied. He was sentenced to life without the possibility of parole plus 25 years to life for the firearm discharge enhancement.
Unless otherwise indicated, subsequent statutory citations refer to the Penal Code.
On appeal, defendant contends, among other things: (1) the evidence did not support his murder conviction; (2) the trial court erroneously read CALCRIM No. 540B (Felony Murder: First Degree-Coparticipant Allegedly Committed Fatal Act) to the jury; (3) the prosecutor misinformed the jury about the felony-murder rule in her summation; (4) the court erroneously excluded a prosecution witness's prior arrest as evidence of third-party culpability; (5) a prosecution witness's "self-proclaimed ability to tell if someone is being truthful or lying tainted the impartiality of the jury" (italics &capitalization omitted); (6) certain testimony of a prosecution witness constituted "improper burden shifting to the defense" (boldface &some capitalization omitted); (7) a prosecution witness's "highly emotional, inflammatory, and prejudicial" remarks "tainted the impartiality of the jury" (boldface &capitalization omitted); (8) the court erroneously admitted into evidence a prosecution witness's plea bargain, which was used by the prosecution to prove defendant was engaged in the commission or attempted commission of a robbery; and (9) the court erroneously denied the new trial motion.
We conclude: (1) substantial evidence supported the murder conviction; (2) assuming arguendo CALCRIM No. 540B should not have been given, the purported error was not prejudicial; (3) the prosecutor did not misinform the jury about the felonymurder rule in her summation; (4) the trial court did not abuse its discretion when it excluded a prosecution witness's prior arrest as evidence of third-party culpability; (5) defendant forfeits his contention regarding a prosecution witness's "self-proclaimed ability to tell if someone is being truthful or lying" (italics &capitalization omitted); (6) to the extent parts of a prosecution witness's testimony constituted impermissible burden shifting to the defense, any purported error was rendered harmless by the court's jury instructions; (7) defendant forfeits his contention regarding a prosecution witness's "highly emotional, inflammatory, and prejudicial" remarks; (8) defendant forfeits his contention as to the admission of a prosecution witness's plea bargain; and (9) the court abused its discretion when it denied the new trial motion.
Defendant raises additional underdeveloped arguments, which we deem forfeited.
We affirm the judgment. The order denying defendant's motion for new trial is reversed and the matter is remanded for reconsideration of the motion under the correct standard. If the trial court grants the motion, a new trial shall be ordered. If the motion is denied, defendant shall be resentenced.
STATEMENT OF FACTS
I. Prosecution's case-in-chief
a. The crime scene
On August 24, 2018, at around 12:38 a.m., Kao S. was asleep in his home when his wife woke him up and told him she heard gunshots. He looked out the window and observed a vehicle driving away. Kao went outside and saw bloodstains as well as the body of his son Brandon lying face down on the driveway. There was a bullet hole "inside the garage that exited out the exterior or east side of the garage." The windows on the driver's side of a black Honda Civic parked south of Kao's residence were shattered and a bullet fragment rested "about 10 feet west" of the car. A fence also south of the residence exhibited a bullet "strike mark." A counterfeit $100 bill was found on the driveway. There were no "expended cartridges" or "shell casings" in the vicinity.
Law enforcement subsequently conducted a search inside the house and retrieved from Brandon's bedroom (1) a plastic bag containing $410 in cash; (2) a small bag of marijuana; (3) a marijuana scale; (4) an AR-15 rifle; (5) a gun case containing a black Glock handgun; (6) a second gun case containing a black Glock handgun; (7) an empty gun case; and (8) boxes of ammunition.
b. Autopsy findings
An autopsy was performed on August 24, 2018, at around 1:15 p.m. Brandon had been shot multiple times. First, there was "a graze gunshot wound on the front inner portion of the left forearm." Second, there was a wound "on the chin area near the midline, lower front jaw" and a bullet "lodge[d] under the fatty tissue under the jaw pretty much at the end of that linear bruise." Finally, there was a "circular entrance wound" "to the elbow," "an irregular-shaped" "re-entry wound" "[u]p in the nipple area of the left breast," and a bullet lodged "right against the spine area" "behind the heart in the midline after going through the left lung and the heart." The chest wound was fatal and caused Brandon's death.
c. Ballistics findings
The Fresno Police Department submitted three bullets-one recovered from the scene of the shooting and two extracted from Brandon's body-to the Department of Justice's crime laboratory. Each bullet had (1) the same caliber; (2) "five cuts" with "a right twist to them"; and (3) "the same widths of the cuts." Based on these characteristics, a criminalist concluded the bullets "were most likely fired from a revolver" such as a ".357 Magnum revolver" or ".38 Special revolver[]" and "not a semiautomatic pistol" such as "a commercially purchased Glock pistol" or a Glock fitted with an "after-market barrel." No cartridges were submitted for analysis. The criminalist pointed out "[c]artridge cases from revolvers stay in the gun" while those of semiautomatic firearms are "expelled onto the ground."
d. Adrian B.
i. Testimony
On August 23, 2018, at around 11:00 p.m., Adrian was at a friend's apartment with defendant, Jaleen H., and Christopher W. Adrian considered Jaleen a "close friend" and knew Christopher "for about a year" but met defendant for the first time that night. At some point, while the men were outside in the parking lot, Adrian noticed a "[r]evolver and a semi-automatic" on top of the trunk of his gray 2005 Saturn sedan. Defendant, Jaleen, and Christopher had been near the car, but Adrian did not see who set down the firearms. Later, after "hanging out" at the apartment, Adrian and the others returned to the Saturn. The guns were no longer on top of the trunk, but Adrian did not see who took them.
On August 24, 2018, sometime after midnight, Adrian drove defendant, Jaleen, and Christopher to McDonald's, where his three passengers were "going to buy some weed." The men stayed in the Saturn and "waited for the other dudes to pull up." Christopher was in the front passenger seat while defendant and Jaleen were in the backseat, the former behind Christopher and the latter behind Adrian. Eventually, a "[w]hite SUV" arrived. One of its occupants-a male-came over to the Saturn and conversed with either defendant or Christopher. Adrian "wasn't paying attention" because "[i]t wasn't [his] deal" and he "didn't have any money." Defendant, Jaleen, and Christopher convinced Adrian to trail the SUV. Adrian followed the vehicle to a house "less than a mile away" and parked "on the other side of th[e] street." He and Christopher remained in the Saturn while defendant and Jaleen "headed towards the house."
Adrian was on his phone when he heard approximately six gunshots. Defendant hurried to the Saturn. Adrian "asked him where Jaleen was a couple times" and defendant said he "didn't know." Adrian "turned the car around and went to the front of the house to see if [he] could find Jaleen." Jaleen was "laying on the ground in between two cars" on the driveway. Defendant and Christopher "picked him up and then put him in the back seat." Jaleen stated he "got shot" and "couldn't move." Adrian drove to the hospital. He and Christopher "grabbed Jaleen from the back seat and put him on the gurney." Meanwhile, defendant remained in the car. Adrian planned to "stay with Jaleen" and told Christopher to "take [his] car." Christopher complied and drove away. Sometime afterward, Adrian messaged Christopher through social media and instructed him to "go hide [the] car and get rid of the guns" because he "didn't want it coming back to [him]." Adrian did not actually see the weapons inside his car.
At approximately 2:30 a.m., while Adrian was still at the hospital, he was contacted by Detective Ledbetter of the Fresno Police Department. Initially, Adrian falsely claimed Jaleen was shot in a different location by someone in an SUV. Thereafter, he called Christopher, learned the Saturn's location, and led officers to the vehicle. Jaleen's shoes were inside. Both the shoes and the backseat were stained with blood.
During trial, Adrian and the jury watched a video recording taken outside the hospital on August 24, 2018, at or around 1:47 a.m. He confirmed the footage showed (1) he picked up Jaleen's shoe, which had fallen out of the Saturn; (2) he and Christopher carried Jaleen; (3) defendant sat in the rear of the car on the passenger side; (4) the group encountered security officers; and (5) Christopher subsequently moved to the driver's seat.
ii. Interviews
In August 2018, Adrian was interviewed on two occasions by Detective Ledbetter and his partner Detective Ramos. Adrian confirmed defendant and Jaleen brought the firearms "[f]or protection" but could not remember who possessed the revolver and who possessed the semiautomatic pistol. Before they went into the residence, defendant and Jaleen "[t]ucked" the guns away.
The jury watched a video recording of these interviews.
e. Christopher W.
i. Testimony
Christopher testified he ingested Xanax throughout the day on August 23, 2018, and could only remember "little bits and clips" of what happened. On that day, he went to the home of his friend Ethan F. They were then joined by defendant, Adrian, and Jaleen, also known as "J Money." (Boldface omitted.) Christopher knew defendant for "[a]bout eight, nine years" and considered him an acquaintance. At some point, someone "brought up getting some weed." Christopher, defendant, Adrian, and Jaleen ended up at McDonald's, where Christopher "blacked out."
When Christopher "came to," he was inside Adrian's car, "everybody [was] moving fast and frantic," and Jaleen was "across [his] lap" "bleeding." Jaleen stated he had been shot. Christopher did not remember hearing gunfire. At the hospital, Christopher laid Jaleen on the gurney while Adrian "disappeared in the parking lot somewhere." Ultimately, Adrian stayed behind and Christopher drove away. At a stoplight, defendant-who had been in the backseat-"jumped out." Later, Christopher received a text message from Adrian telling him to get rid of the car and the guns. Christopher was puzzled because he "didn't have no guns in the car."
ii. Interview
In an August 24, 2018 interview with Detective Ledbetter, Christopher stated he, defendant, Adrian, and Jaleen "wanted to buy some weed" and met up with two Hispanic males who had a white Chevy SUV. At a house, defendant and Jaleen exited Adrian's Saturn and entered the garage with the two Hispanic males. Jaleen quickly returned because "he left his money in the car" and "went back." After about 15 seconds elapsed, Christopher heard "shoe[s] scuffle" and then approximately five gunshots. Only defendant came back to the Saturn. Adrian maneuvered the vehicle in front of the driveway, where Jaleen was lying "between the middle of the cars." Jaleen repeatedly said he could not "feel [his] legs." Christopher and defendant carried him into the car and Adrian drove to the hospital.
The following exchange occurred between Ledbetter and Christopher:
"[LEDBETTER]: Who had the guns?
"[CHRISTOPHER]: Ky had one.
"[LEDBETTER]: Okay.
"[CHRISTOPHER]: And I only seen one. [¶] . . . [¶]
"[LEDBETTER]: Kyrone had a gun and how about the kid who got shot?
"[CHRISTOPHER]: No, he didn't have (UNINTELLIGIBLE).
"[LEDBETTER]: All right. The gun that Kyrone had, you know what a semiautomatic is, where the slide goes back and forth?
"[CHRISTOPHER]: Right.
"[LEDBETTER]: You know what revolver is where the-like a cowboy pistol?
"[CHRISTOPHER]: Right.
"[LEDBETTER]: What kind of gun did Ky have?
"[CHRISTOPHER]: Honestly, I don't know. I just remember he was just like he was coming to the car and he was just like-tucking it.
"[LEDBETTER]: Um-hum.
"[CHRISTOPHER]: That's all-I didn't, like, you couldn't see it, like you could see handle, but that's all, he was just tucking it in."
The jury watched a video recording of the interview.
f. Ethan F.
i. Testimony
Ethan testified he knew defendant, Jaleen, and Christopher but could not remember seeing any of them at his apartment on August 23, 2018. He did not know Jaleen was shot on or around August 24, 2018, and left paralyzed. Ethan was not aware of Jaleen's nickname.
ii. Interview
Ethan was interviewed by Detective Knapp. The following exchange occurred:
"[KNAPP]: Did you set them up to go to uh go buy the weed from that guy? Cause' you knew about it. Was that one of your sources for weed? Be honest.
"[ETHAN]: No bro. I was supposed to go though and then that's when Kyron[e] came over and they was like . . . like . . . some like . . . like racist type shit. Like oh we're just going to have the [B]lack dude go with us. I'm like alright. I went in the room.
"[KNAPP]: Where was that at?
"[ETHAN]: Huh?
"[KNAPP]: Where [sic] they at your house?
"[ETHAN]: Yeah. We was in my parking lot. And then that's when I think Chris or Jay Money was like what's up? Lets go rob something. And we start pushing a little bit of weed. And at first I wasn't going to go though cause' I was a little drunk. I'd been drinking a little bit of Hennessey. And then that's when Kyrone came and then they took off. Next thing you know Jay Money got shot. So I asked them. They didn't want to tell me nothing."
The jury watched a video recording of this interview.
g. Jaleen H.
i. Testimony
In the instant case, Jaleen pled guilty or nolo contendere to robbery (§ 211) and admitted he personally used a firearm (§ 12022.53, subd. (b)). As part of a plea bargain entered on September 23, 2019, he agreed to testify truthfully. However, when Jaleen was called to the witness stand, he refused to testify and was found in contempt of court.
ii. Interview
In an August 24, 2018 interview with Detectives Ledbetter and Ramos, Jaleen initially stated he was with a friend on the side of the road when he was shot twice in the back by someone in a white SUV. Ledbetter revealed he knew "[t]he story of . . . going to a house to buy marijuana from an Asian," "[Jaleen's] blood [wa]s on the driveway," "[Jaleen's] friend got [him], picked [him] up, put [him] back in the car, the Saturn," and "Adrian drove [Jaleen] to the hospital." The following exchange among the three then occurred:
"[JALEEN]: All right. We was gonna go buy some-weed.
"[LEDBETTER]: Okay.
"[JALEEN]: And then-after (UNINTELLIGIBLE) was counting the money, and that dude said we shorted him.
"[LEDBETTER]: Um-hum.
"[JALEEN]: I was walking back to the car. And that's when he shot me.
"[LEDBETTER]: He shot you?
"[JALEEN]: In the back....[¶] . . . [¶]
"[LEDBETTER]: So, you say the Asian shot you? You know, he's dead.
"[JALEEN]: No, I didn't know that.
"[LEDBETTER]: Yeah, he's-he's gone. He's dead.... Who shot him? [¶] . . . [¶]
"[JALEEN]: I don't know who shot him. We didn't have no guns.
"[RAMOS]: You know we found Adrian's car.
"[LEDBETTER]: Want to start over? [¶] . . . [¶]
"[JALEEN]: Well, I'm not going to tell you who-but one of us that was in the car shot back.
"[LEDBETTER]: One of the guys in the car shot back?
"[JALEEN]: Yes.
"[LEDBETTER]: Are you sticking to the story that the Asian shot?
"[JALEEN]: The Asian shot me for sure.
"[LEDBETTER]: 'Cause we can't find the gun that he had.
"[JALEEN]: I don't know. He shot me, though. [¶] . . . [¶]
"[RAMOS]: Who set it up? To buy the weed? Keep it real.
"[JALEEN]: This Mexican dude I know.
"[RAMOS]: What's his name?
"[JALEEN]: . . ., um, Phil. [¶] . . . [¶]
"[LEDBETTER]: .... Does he go by any, uh, nicknames? What was he driving?
"[JALEEN]: He was driving the white SUV.
"[LEDBETTER]: He is the one in the white SUV. He's the one that set this up, right?
"[JALEEN]: Um-hum.
"[LEDBETTER]: Could you tell me how it all started? How it all set up?
"[JALEEN]: I asked him if he had some weed.
"[LEDBETTER]: Okay.
"[JALEEN]: And then he was like, yeah. My boy got some.
"[LEDBETTER]: Um-hum.
"[JALEEN]: So I went over there. And then everything else (UNINTELLIGIBLE).
"[LEDBETTER]: So. You followed this guy. Where did you guys start off at?
"[JALEEN]: He met us at the dude house.
"[LEDBETTER]: Did you meet somewhere before you went there?
"[JALEEN]: At McDonald's. [¶] . . . [¶]
"[LEDBETTER]: So you followed this guy, [Phil], to this Asian guy's house. You ever been there before? Okay. Have you told your mom what happened? You didn't tell her? So, you and who went in to meet this Asian?
"[JALEEN]: Me.
"[LEDBETTER]: Just you by yourself?
"[JALEEN]: Yeah, they was in the car.
"[LEDBETTER]: The other three guys stayed in the car?
"[JALEEN]: (UNINTELLIGIBLE).
"[LEDBETTER]: Did Ky go with you?
"[JALEEN]: They was in the car. I walked in by-I walked back to the car and got the money from Ky. And then he walked up.
"[LEDBETTER]: Okay. So both of you walked up together?
"[JALEEN]: Eventually.
"[LEDBETTER]: Okay. And you guys were short. You said he was short (UNINTELLIGIBLE) why would he shoot you if you were short the money?
"[JALEEN]: 'Cause he thought we was trying to rob him. That's why he would shoot us.
"[LEDBETTER]: And this Asian shot you, right? In the back?
"[JALEEN]: Shot me in my back, yes.
"[LEDBETTER]: Okay. Do you know-and who was shooting back?
"[JALEEN]: I don't know. I was shot, on the ground.
"[LEDBETTER]: Okay.
"[JALEEN]: About to die. I don't know who shot me. Who shot him?
"[LEDBETTER]: Did Kyrone shoot the gun?
"[JALEEN]: No. I don't know.
"[LEDBETTER]: Did (UNINTELLIGIBLE).
"[JALEEN]: I was on the ground.
"[LEDBETTER]: Did you have a gun?
"[JALEEN]: I was on the ground, shot. I didn't have no gun.
"[LEDBETTER]: Did you have a gun?
"[JALEEN]: I did not have a gun. If I had a gun, I wouldn't be shot.
"[LEDBETTER]: Okay. But I got a dead man. Somebody shot him.
"[JALEEN]: Well, I didn't. 'Cause I was shot.
"[LEDBETTER]: Okay. Is there anything else you want to tell us?
"[JALEEN]: That's it. I didn't kill nobody. I got shot. I was almost dead.
"[LEDBETTER]: Did you guys use fake money?
"[JALEEN]: We used a couple fake bills.
"[LEDBETTER]: Is that what got everybody upset?
"[JALEEN]: You could say that.
"[LEDBETTER]: What happened to the weed?
"[JALEEN]: The dead man got it.
"[RAMOS]: You never got-you never got it?
"[JALEEN]: I never got no weed. I never got nothing but two gunshots.
"[LEDBETTER]: Did you guys go there to rip him off?
"[RAMOS]: (UNINTELLIGIBLE).
"[JALEEN]: No, I didn't go there to rip him off.
"[RAMOS]: (UNINTELLIGIBLE).
"[JALEEN]: All the money I had, I had eight hundred dollars. It was all real. Kyrone the one that had (UNINTELLIGIBLE)-Ky, had the fake money."
The jury watched a video recording of this interview.
h. Philip R.
i. Testimony
Philip "lived right down the street" from Brandon, his friend and marijuana dealer. Sometime on the night of August 23, 2018, Philip received a social media message from Jaleen, also known as "J Money," an old high school classmate. Jaleen wanted to purchase marijuana. Philip and his brother Derick T. drove to a McDonald's in a white Chevy Traverse and met up with Jaleen, who was in a car with people Philip had never seen before. Philip and Jaleen conversed and "set up to go get [a half pound of] weed from . . . Brandon" for $800. After Jaleen and his companions "showed" they had money, Philip contacted Brandon via social media.
At or around midnight, Philip led Jaleen's group to Brandon's house, where Brandon-who was unarmed-was "already outside in the garage." Philip and Derick- who were also unarmed-exited their vehicle first to greet Brandon. They were then joined by defendant and Jaleen, who "wanted to look at the bud." After Brandon showed them a "big old [plastic] bag of weed," there was dialogue "about purchasing it." At some point, defendant left the garage to get money. Thereafter, Brandon and Jaleen began "fighting over the bag" of marijuana. Defendant returned to the garage sometime after the scuffle ensued. Either he or Jaleen said "we're not going to pay for this" and "they tried to rob [Brandon]." Philip and Derick "took off." When the brothers reached their vehicle, Philip "heard gunshots." They immediately left the scene.
Philip initially testified he could not remember who had entered the garage from the other group because he ingested Xanax "a little bit before the drug deal," which impaired his memory. Later, he indicated these men were defendant and Jaleen.
In a text message sent to Jaleen on August 24, 2018, at 12:44 a.m., Philip wrote: "Yo, that was slimy ...." In a second text message sent to Jaleen at 1:06 a.m., Philip wrote: "So what now[?]" In a third text message to Jaleen, Philip wrote: "You gonna break me off at least." At trial, Philip explained the third text message:
"Um, like I guess at the beginning of the deal I was supposed to get a little bit of-like a part . . . from J Money. But I didn't end up getting any of that. So I-I was just asking if I was going to get it."
In text messages sent to Brandon on August 24, 2018, sometime after the gunfire erupted and Philip and Derick left the residence, Philip wrote:
"Aye bruh. What the fuck. [¶] . . . [¶] . . . We gotta get these nigga. The fuck. [¶] . . . [¶] . . . For real. For real. Let's get these niggas. [¶] . . . [¶] . . . I had nothing to do with it. [¶] . . . [¶] . . . I don't know what the fuck happened. [¶] . . . [¶] . . . I got you on whatever you need G. Real nigga shit. [¶] . . . [¶] . . . Bruh, I was about to tell you something was feeling funky, but shit, I got inform on them. We was tight, but I ain't fucking with that set up shit."
At trial, Philip explained these text messages:
"I meant, let's get the people that just robbed my friend. [¶] . . . [¶] . . . I heard gunshots. I left. And after that I don't know what happened. But gunshots were fired, so someone had to have been hit by them. I didn't know if it was the people or Brandon. I didn't know who it was. [¶] . . . [¶] . . . I didn't like how they set up my friend. [¶] . . . [¶] . . . I don't like how they acted like they were going to buy some weed, but they ended up robbing my friend and shooting him."
ii. Interview
In a September 7, 2018 interview with Detective Ledbetter and Fresno Police Sergeant Benson, Philip recalled Jaleen saying "I'm sorry bro, I got to get that" prior to "fighting" Brandon for the bag of marijuana. When Philip intervened, Jaleen took out a black semiautomatic firearm, i.e., a "Berryetta [sic]" or "a Glock." Defendant, who was behind Jaleen, took out a "silver revolver" and pulled the trigger. Philip "heard the click" and believed defendant forgot to cock the hammer. Philip "grabbed" Derick and "took off" with Brandon. On the way to his SUV, Philip heard a "boom." At no point did he see Brandon with a gun.
The jury listened to an audio recording of this interview.
i. Derick T.
i. Testimony
At trial, Derick testified he "popped [two] Xanax" on August 23 or 24, 2018, and could not recall what had transpired on those days.
ii. Interview
In an August 26, 2018 interview with Detectives Ledbetter and Ramos, Derick stated he and his brother Philip met "Philip's friends"-who were "dark-complected," "Mexican or something like that," and "wearing dark clothes"-at a McDonald's. Afterward, they all went to Brandon's house. In the garage, Philip was talking with "his homeys" while Derick "was just right there ...." Derick "didn't see" marijuana but "heard about money ...." The following exchange among the three then occurred:
"[LEDBETTER]: What was-what was it about the money?
"[DERICK]: I don't know, something about that they had to go get more money or something like that. Then they opened the garage.
"[LEDBETTER]: I see. Where did they go-what-both of them go back to the car or one of them went back to the car?
"[DERICK]: One went back to the car.
"[LEDBETTER]: Do you remember who that was?
"[DERICK]: Hmm-um. [¶] . . . [¶]
"[LEDBETTER]: Okay. Did he come back, the guy who went to the car?
"[DERICK]: Um-hum.
"[LEDBETTER]: And what happened then?
"[DERICK]: That's when they shots rang out. Or, I don't know, it was like, I heard 'em, they were like kind a arguing from in there. Or after, when he came in, he was like, oh, here, it is, I'm sorry, and then that's when all that, what the fuck. I turned around and I was like, oh, shit.
"[LEDBETTER]: What did you see?
"[DERICK]: That's when I took off.
"[LEDBETTER]: What did you see?
"[DERICK]: He was like-he was pointing the gun at me.
"[LEDBETTER]: Who was pointing a gun?
"[DERICK]: One of them, like, somebody was.
"[LEDBETTER]: Was it-was it-Brandon?
"[DERICK]: (UNINTELLIGIBLE).
"[LEDBETTER]: -with a gun?
"[DERICK]: No.
"[LEDBETTER]: It was one of the two [B]lack guys with a gun?
"[DERICK]: It had to be. I don't know. Some dark-complected guys. [¶] . . . [¶]
"[RAMOS]: One of those two guys pulled out a gun and pointed it at who?
"[DERICK]: At Brandon.
"[RAMOS]: Oh, okay.
"[DERICK]: That's when I turned around and heard
"[RAMOS]: You-you know if it was the one that went back to the car?
"[DERICK]: Nah, I don't know which one it was. I don't know who it was. [¶] . . . [¶]
"[LEDBETTER]: You took off running?
"[DERICK]: Fuck that shit.
"[LEDBETTER]: And as you were running, what happened then?
"[DERICK]: I heard the gunshots, and I was like-let's go.
"[LEDBETTER]: How many gunshots did you hear?
"[DERICK]: Think it was like two or three. [¶] . . . [¶]
"[LEDBETTER]: Okay. Uh, do you know what the argument was about? Was it about-something about the money? Or was it something about the (UNINTELLIGIBLE).
"[DERICK]: No, it wasn't like really like a argument. It was just like when he came in. He was, I'm sorry. And that's when like they started arguing.
"[LEDBETTER]: Who said I'm sorry.
"[DERICK]: I don't know, one of the guys.
"[LEDBETTER]: I'm sorry. And that was after they came back from the car, right?
"[DERICK]: Yeah.
"[LEDBETTER]: To get the money?
"[DERICK]: Yeah. And then they were like, I'm sorry, give me this. And then, I don't know. [¶] . . . [¶]
"[LEDBETTER]: Did you see Brandon with a gun?
"[DERICK]: No.
"[LEDBETTER]: You never saw him with a gun at all?
"[DERICK]: No.
"[RAMOS]: You were looking right at him? Like you were looking at them? (UNINTELLIGIBLE).
"[DERICK]: At Brandon.
"[RAMOS]: At Brandon?
"[DERICK]: Yeah. At Brandon. [¶] . . . [¶]
"[RAMOS]: And you never saw Brandon with a gun in his hand?
"[DERICK]: No.
"[RAMOS]: Or pull out a gun?
"[DERICK]: Never.
"[LEDBETTER]: Did you see Brandon run out the garage?
"[DERICK]: Yeah, I saw him run out of the garage.
"[LEDBETTER]: Was he-were you the first-who was the first one running out of the garage? You and your brother? Or Brandon?
"[DERICK]: Brandon was the first one out the garage.
"[LEDBETTER]: Brandon was the first one. Which way did he go?
"[DERICK]: He like ran between the cars. And then I saw him like fall, I was like, what the fuck. [¶] . . . [¶]
"[LEDBETTER]: Was that before the shooting or after the shooting?
"[DERICK]: That was after the
"[RAMOS]: Once the shots
"[DERICK]: -the shooting.
"[LEDBETTER]: After the shooting.
"[RAMOS]: After you heard the shots?
"[DERICK]: Because look. Right when they run out the garage, like all, Brandon takes off running, and then they try to grab him and we try to grab the other kids. And then that's when we heard gunshots, loud as shit. So we just let go of 'em (UNINTELLIGIBLE) and we're like gone, (UNINTELLIGIBLE). [¶] . . . [¶]
"[LEDBETTER]: Did you know it was a drug deal or marijuana deal going down? No, he didn't tell you, hey, we're going to go over here and sell some marijuana to these guys?
"[DERICK]: No.
"[LEDBETTER]: Okay. So Brandon was the first one out of the garage, you guys grabbed him, you heard gunfire, and then you took off.
"[DERICK]: Um-hum.
"[LEDBETTER]: And you saw one of the guys with a gun.
"[DERICK]: Yeah. [¶] . . . [¶]
"[RAMOS]: Saw 'em with a gun and then you heard the gunshots?
"[DERICK]: Yeah.
"[LEDBETTER]: Okay.
"[DERICK]: But that was like when he pulled it out, and he was like, give me everything. I was like what? I was let us go. What the fuck you talking about?
"[LEDBETTER]: It was a robbery, huh?
"[DERICK]: Yes.
"[LEDBETTER]: Give me everything
"[DERICK]: Had to be something like that."
The jury watched a video recording of this interview.
j. Detective Ledbetter
Ledbetter, the lead investigator, arrived at the scene of the shooting around 3:30 a.m. on August 24, 2018. He spoke with Brandon's brother Sou S., who lived at the residence. Ledbetter asked Sou about Brandon's cell phone. Sou stated the phone was in his bedroom. He had received it from his mother, who "found it on the ground next to [Brandon]." Ledbetter went to Sou's bedroom and discovered the phone-which "was bloody"-underneath a pillow. The phone contained Philip's social media messages to Brandon. Aside from the small bag of marijuana in Brandon's bedroom, Ledbetter did not find any other bag of marijuana on the premises.
Brandon's hands were swabbed for gunshot residue. Ledbetter phoned the Department of Justice's laboratory in Ripon and asked for gunshot residue testing, but the laboratory declined the request. Based on prior experience, Ledbetter did not believe the Department of Justice would have tested the counterfeit bill for DNA.
At the outset of the investigation, Ledbetter considered multiple scenarios, including Brandon "ha[ving] a gun" and "exchanging gun fire with someone"; "someone who was with Brandon was exchanging gun fire with someone"; and "a drive-by shooting and somebody return[ing] fire." After carrying out the investigation, however, Ledbetter ruled out the possibility of return fire.
k. Sergeant Benson
Benson became involved with the investigation on September 7, 2018, when he and Ledbetter interviewed Philip. At first, Philip "was a bit stand-offish" and gave Benson the "impression . . . he was not being hundred percent honest with the information that he was providing." After approximately 30 minutes, Benson and Ledbetter were "preparing to end the interview" when Philip's father-who was present-implored Philip to be truthful. Thereafter, Philip provided more details of the events leading up to the shooting and "began to get a little bit emotional."
Based on his experience and training with firearms, Benson explained the "clicking noise" Philip heard:
"It could have been a couple of different things. It could have been, as I described to you before, a revolver, the bullets go into that cylinder or wheel. Could have been something as simple as the trigger was pulled and there was not a round that was in that particular chamber that came around. Or it could have been some sort of a situation where the safety was on or something, and he is just pulling, and it's just clicking."
II. Defense's case-in-chief
a. Tanaya S. Tanaya-defendant's mother -testified she texted Jaleen on September 13, 2018. In one message, Jaleen wrote:
"How Ky doing[?] What jail they got him in[?] Tell him I said keep his head up and I love and am praying for him. But this is all crazy because it didn't even happen like they say. Ky didn't do shit. This shit is crazy for real. They got my nigga in jail on some bs omm. He didn't touch dude. I told them I don't know nothing. They asked me did Ky shoot me and shoot dude. I told them no, but they kept saying he did. They crazy a fuck. It didn't even happen like they say. This shit we[a]k as fuck. They crazy. If anything it was self-defense on my part. What the fuck they expect a nigga to do. Dude shot me and Ky saved my life. He came back and got me. This shit is crazy. That's fucked up they got my nigga for this shit. I'm sorry."
b. Detective Ledbetter
Ledbetter testified that on August 25, 2018, his partner Ramos interviewed Tom T., who stated he sold Brandon two ounces of marijuana between 12:00 a.m. and 12:30 a.m., a few minutes before the shooting.
On August 26 or 27, 2018, Ledbetter interviewed Philip. When Ledbetter asked Philip about his cell phone, Philip stated he "broke it cause he thought cops might get it from him."
c. Sergeant Benson
On September 3, 2018, Benson and Ledbetter interviewed defendant in jail. Defendant was "cooperative with [them] during the interview."
On June 6, 2019, Benson and Ledbetter interviewed Jaleen at police headquarters. Jaleen, who was with his attorney, stated: (1) he "had the counterfeit money" along with "real money" and "no one else knew he had counterfeit money"; (2) he was shot by Brandon, who had a "silver and black" gun; and (3) in response, he took out his own gun and pulled the trigger, but the weapon jammed.
DISCUSSION
I. Substantial evidence supported defendant's conviction for first degree murder.
a. Standard of review
"To determine the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the prosecution to determine whether it contains [substantial] evidence that is reasonable, credible and of solid value, from which a rational trier of fact could find that the elements of the crime were established beyond a reasonable doubt." (People v. Tripp (2007) 151 Cal.App.4th 951, 955.) We "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Redmond (1969) 71 Cal.2d 745, 755.) "We need not be convinced of the defendant's guilt beyond a reasonable doubt; we merely ask whether' "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." [Citation.]'" (People v. Tripp, supra, at p. 955, italics omitted.) "This standard of review . . . applies to circumstantial evidence. [Citation.] If the circumstances, plus all the logical inferences the jury might have drawn from them, reasonably justify the jury's findings, our opinion that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." (Ibid.)
"Before the judgment of the trial court can be set aside for insufficiency of the evidence to support the verdict of the jury, it must clearly appear that upon no hypothesis what[so]ever is there sufficient substantial evidence to support it." (People v. Redmond, supra, 71 Cal.2d at p. 755.)" 'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.'" (People v. Lee (2011) 51 Cal.4th 620, 632.)
b. Analysis
"Murder is the unlawful killing of a human being . . . with malice aforethought." (§ 187, subd. (a).) "Section 189 imposes culpability for first degree murder when a killing is committed during the commission or attempted commission of a statutorily enumerated felony." (People v. Andreasen (2013) 214 Cal.App.4th 70, 80.) Robbery is one such felony. (See § 189, subd. (a).)
"Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) "An attempted robbery requires a specific intent to commit robbery and a direct, ineffectual act (beyond mere preparation) toward its commission." (People v. Medina (2007) 41 Cal.4th 685, 694; see ibid. ["Under general attempt principles, commission of an element of the crime is not necessary."].) "The act required must be more than mere preparation, it must show that the perpetrator is putting his or her plan into action." (People v. Bonner (2000) 80 Cal.App.4th 759, 764; see, e.g., People v. Sanchez (2016) 63 Cal.4th 411, 470 [requirement for direct but ineffectual act toward commission of attempted robbery satisfied where the defendant and his cohorts were armed, arrived at a coffee shop, positioned their car to facilitate a quick getaway, entered the coffee shop, and lingered outside until the proprietor called police].)
"Effective January 1, 2019, the Legislature passed Senate Bill [No.] 1437 [2017 2018 Reg. Sess.] 'to amend the felony murder rule . . . to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.'" (People v. Lewis (2021) 11 Cal.5th 952, 959, quoting Stats. 2018, ch. 1015, § 1, subd. (f).) Accordingly, the Legislature added the following language to section 189:
"A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2." (§ 189, subd. (e); accord, People v. Prado (2020) 49 Cal.App.5th 480, 488.)
"[T]he felony-murder special circumstance applies if the murder was committed during the commission or attempted commission of a statutorily enumerated felony, and subjects the defendant to a sentence of death or of [LWOP]." (People v. Andreasen, supra, 214 Cal.App.4th at p. 80, citing § 190.2, subd. (a)(17); see § 190.2, subd. (a)(17)(A) [robbery].) A defendant must have either been the "actual killer" (§ 190.2, subd. (b)); acted with the intent to kill in aiding, abetting, counseling, commanding, inducing, soliciting, requesting, or assisting any actor in the commission of the murder (§ 190.2, subd. (c)); or been a major participant in the commission of the underlying felony and acted with reckless indifference to human life (§ 190.2, subd. (d)). "The requirements for the felony-murder special circumstance . . . are identical to the new requirements for felony murder following the enactment of Senate Bill No. 1437 [20172018 Reg. Sess.]." (People v. Galvan (2020) 52 Cal.App.5th 1134, 1140, overruled in part by People v. Strong (2022) 13 Cal.5th 698, 711-712, 718 &fn. 3.)
As previously mentioned, the jury convicted defendant of first degree murder and found true the allegations he (1) personally and intentionally discharged a firearm that proximately caused Brandon's death; and (2) committed the murder while he was engaged in the commission or attempted commission of a robbery. (See People v. Galvan, supra, 52 Cal.App.5th at p. 1141 ["By finding a special circumstance allegation true, the jury makes precisely the same finding it must make in order to convict a defendant of felony murder under the new law."].)
On appeal, defendant suggests his felony-murder conviction must be reversed because the evidence did not sufficiently demonstrate (1) he was engaged in the commission or attempted commission of a robbery; and (2) he was the actual killer, acted with intent to kill in aiding and abetting in the commission of the murder, or was a major participant in the commission of the robbery and acted with reckless indifference to human life.
The record-viewed in the light most favorable to the prosecution-contains substantial evidence defendant was engaged in an attempted robbery. Prior to the shooting, defendant and Jaleen-along with Adrian and Christopher-were at Ethan's apartment. At some point, someone "brought up getting some weed." Ethan recalled Jaleen or Christopher saying "Let[']s go rob something." Defendant and Jaleen had guns, i.e., a revolver and a semiautomatic firearm, and one or the other also had some counterfeit bills. Jaleen contacted Philip to set up a marijuana purchase. After meeting at a McDonald's, where defendant and Jaleen displayed money, Philip arranged a transaction with Brandon at the latter's home nearby. Before entering Brandon's garage, defendant and Jaleen concealed their weapons. At defendant and Jaleen's behest, Brandon showed them a "big old [plastic] bag of weed." Defendant left the garage momentarily and returned sometime after Jaleen uttered "I'm sorry bro, I got to get that" and began quarreling with Brandon over the marijuana. Either defendant or Jaleen said "we're not going to pay for this." When Philip intervened, defendant and Jaleen drew their guns, defendant immediately pulling the trigger. Brandon, Philip, and Derick-all of whom were unarmed-fled the garage. Eventually, gunfire erupted and Brandon was fatally struck down. As defendant was leaving the residence, he "tuck[ed]" his gun away. In the wake of the shooting, Philip sent Jaleen a text message condemning him for being "slimy." Philip also sent Brandon text messages expressing dismay about the "set up shit," asserting he "had nothing to do with it," and spurring them to "get these nigga[s]." (See People v. Bloom (1989) 48 Cal.3d 1194, 1208 ["Evidence of a defendant's state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction."]; People v. Pre (2004) 117 Cal.App.4th 413, 420 ["Intent is rarely susceptible of direct proof and usually must be inferred from the facts and circumstances surrounding the offense."].)
The record-viewed in the light most favorable to the prosecution-also contains substantial evidence defendant was the actual killer. Defendant handled a "silver revolver" while Jaleen possessed the semiautomatic firearm. When defendant initially pulled the trigger, Philip heard a "clicking noise," which was consistent with a revolver without "a round that was in that particular chamber that came around" or with its safety mechanism on. Analysis of the bullets taken from the scene of the shooting and from Brandon's body-including the one that inflicted the fatal blow-showed they were mostly likely fired from a revolver. In addition, given a cartridge is "expelled onto the ground" when a shot is fired from a semiautomatic firearm, the lack of cartridges at the scene further supported use of a revolver.
II. Assuming, arguendo, CALCRIM No. 540B should not have been given, the purported error was not prejudicial.
a. Background
The prosecution requested CALCRIM Nos. 540A (Felony Murder: First Degree-Defendant Allegedly Committed Fatal Act) and 540B (Felony Murder: First Degree-Coparticipant Allegedly Committed Fatal Act), among other instructions. At the jury instructions conference, defense counsel objected to CALCRIM No. 540B on the grounds it "was raised only after the conclusion of the evidence," it presented "an entirely different theory," and "defense did not have an opportunity to prepare for that theory." The trial court overruled the objection. Prior to closing arguments, the court instructed the jury in part:
"[CALCRIM No. 540A:] The defendant is charged in Count One with murder under a theory of First Degree felony murder. To prove that the defendant is guilty of First Degree murder under this theory the People must prove that: One, the defendant committed or attempted to commit a robbery; the defendant intended to commit a robbery and while committing or attempting to commit a robbery the defendant caused the death of another person.
"A person who was the actual killer may be guilty of felony murder even if the killing was unintentional, accidental or negligent. [¶] . . . [¶]
"The defendant must have intended to commit the robbery before or at the time that he caused the death. The crime of robbery continues until a defendant has reached a place of temporary safety.
"[CALCRIM No. 540B:] The defendant may also be guilty of murder under a theory of felony murder even if another person did the act that resulted in the death. I will call the other person the perpetrator. To prove that the defendant is guilty of First Degree murder under this theory the People must prove that: One, the defendant committed or attempted to commit or aided and abetted to commit robbery; two, the defendant intended to commit or intended to aid and abet the perpetrator in committing robbery; three, if the defendant did not personally commit or attempt to commit robbery, then a perpetrator whom the defendant was aiding and abetting committed or attempted to commit robbery; four, while committing or attempting to commit robbery the perpetrator caused the death of another person; Five A, the defendant was a major participant in the robbery or attempted robbery; and five B, when the defendant participated in the robbery or attempted robbery, he acted with reckless indifference to human life. [¶] . . . [¶]
"You may not find the defendant guilty of felony murder unless all of you agree that the defendant or a perpetrator caused the death of another. You do not all need to agree, however, whether the defendant or a perpetrator caused that death."
b. Analysis
By constitutional mandate, "[n]o judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13; see People v. Breverman (1998) 19 Cal.4th 142, 173 [" '" 'The word "misdirection" logically includes every kind of instructional error.'"' "].) "[A] 'miscarriage of justice' should be declared only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see People v. Jones (2012) 54 Cal.4th 1, 53 [instructional error evaluated under Watson's reasonable probability standard].)
Assuming arguendo the court should not have issued CALCRIM No. 540B, it is not reasonably probable a result more favorable to defendant would have been reached absent this instruction. The jury found true the allegation defendant personally and intentionally discharged the firearm that proximately caused Brandon's death. Having determined defendant (and not Jaleen) committed the fatal act, the jury necessarily relied on CALCRIM No. 540A-not CAL CRIM No. 540B-when it convicted him of felony murder. (See Oettinger v. Stewart (1944) 24 Cal.2d 133, 140 ["In cases where it clearly appears that the jury did not rely upon the erroneous instructions, the judgment may be affirmed on the ground that the error is not prejudicial."].)
III. The prosecutor did not misinform the jury about the felony-murder rule in her summation.
a. Background
The trial court read numerous written instructions to the jury prior to closing arguments. At the outset, it issued CALCRIM No. 200 (Duties of Judge and Jury):
"Members of the jury, I will now instruct you on the law that applies to this case.... [¶] . . . [¶]
"You must follow the law as I explain it to you even if you disagree with it. If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions. Pay careful attention to all of these instructions and consider them together."
Later, the court issued CALCRIM Nos. 540A and 540B. (See ante, at pp. 28-29.)
In her summation, the prosecutor commented:
"Let's talk about [CALCRIM No.] 540(a). The People's theory of this case-the People's theory is that Kyrone Haygood shot and killed Brandon . . . during this robbery. And in order to proof [sic] this the People have to prove the following: The defendant committed are [sic] attempted to commit a robbery. The defendant intended to commit a robbery . . ., and while committing or attempting to commit a robbery the defendant caused the death of another person. A person who was the actual killer may be guilty of the felony murder even if the killing was unintentional, accidental are [sic] negligent. So Kyrone Haygood just needs to intend to take that marijuana to commit that robbery. He arms himself with a gun. Even if it's an accident, even if it's unintentional, even if he never intended it kill Brandon [S.], he's still guilty if it has been proven beyond a reasonable doubt that he [i]ntended to commit that robbery. And he did, in fact, do that. That is the People's theory. [¶] . . . [¶]
"Let's talk about what the People anticipate or believe is the defense's theory. The defense's theory is that it was [Jaleen] . . . who shot and killed Brandon ....It was not the defendant. Okay. For this theory the defendant is guilty of first degree murder under this theory, and the People have to prove the following: The defendant committed or attempted to commit or aided and abetted to commit robbery. So [Jaleen] and Haygood both planned this robbery. Both armed themselves with guns. The defendant attempted to commit or intended to aid or abet the perpetrator in committing the robbery. So we're now calling [Jaleen] the perpetrator; okay? If the defendant did not personally commit or attempt to commit the robbery, then a perpetrator whom the defendant was aiding and abetting committed or attempted to commit the robbery. So it's basically saying if Haygood just stood there and did absolutely nothing-which is not the case. We know he had a gun. We know he was firing the gun. But the defendant is trying to say he wasn't the one who actually shot and killed [Brandon] while committing or attempting to commit the robbery. The perpetrator caused the death of another person; okay? [Jaleen] killed [Brandon]. That's their theory. The defendant was a major participant in the robbery or attempted robbery. And when the defendant participated in the robbery or attempted robbery, he acted with reckless disregard to human life.
"Ladies and gentlemen, even under defense's theory, even if [Jaleen] is the one that killed [Brandon]-and that's not the People's [t]heory. The defendant is still guilty of first degree murder because he was a major participant in this robbery.
"This instruction goes on to say, you may not find the defendant guilty of felony murder unless all of you agree that the defendant or a perpetrator caused the death of another. So it's basically saying you just have to believe either [Jaleen] or Haygood killed Brandon .... You do not all need to agree, however, whether the defendant or a perpetrator caused the death. So let's say this half of you are convinced beyond a reasonable doubt that it's Kyrone Haygood that shot Brandon . . .; okay? And you here believe that it was Jaleen . . . that shot and killed Brandon .... It doesn't matter as long as you all believe that one was a perpetrator and one was a major participant that you find the defendant guilty of first degree murder. [¶] . . . [¶]
"Brandon . . . was running away. He was running away from his own garage. And he was gunned down by the defendant ....Brandon . . . didn't have a gun, and there is no evidence to say he did. And the injuries that he has - this is not a situation where [Jaleen] and [Brandon] were scared of facing each other and [Brandon] shoots [Jaleen] in the stomach, and then, someone had to shoot him. The defendant is guilty if he is the shooter or if the perpetrator-if you believe the other theory [Jaleen] shot him." (Italics added.)
The italicized portions are the remarks defendant specifically disputes.
b. Analysis
On appeal, defendant contends "the People misinformed the jury on the application of law ...." (Boldface &some capitalization omitted.) Specifically, he claims "the People's jury instruction more closely followed the old felony murder rule of [Penal] Code § 189." (Boldface &some capitalization omitted.) "Although counsel have 'broad discretion in discussing the legal and factual merits of a case [citation], it is improper to misstate the law. [Citation.]' [Citation.]" (People v. Mendoza (2007) 42 Cal.4th 686, 702.) "When the issue 'focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.' [Citations.]" (People v. Cole (2004) 33 Cal.4th 1158, 1202-1203.) Here, when "view[ing] the statements in the context of the argument as a whole" (People v. Dennis (1998) 17 Cal.4th 468, 522) as opposed to "single[d] out words and phrases" (ibid.), we cannot agree with defendant's allegation. Rather than misinforming the jury on the felonymurder rule, the prosecutor merely described the elements set forth in CALCRIM Nos. 540A and 540B.
Alternatively, any purported error was not prejudicial. The court instructed the jurors they "must follow the law as I explain it to you even if you disagree with it" and "[i]f you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions." (See People v. McDowell (2012) 54 Cal.4th 395, 438 ["Arguments by counsel 'generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence, [citation], and are likely viewed as the statements of advocates; the latter . . . are viewed as definitive and binding statements of the law.' "].)" 'The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions.' [Citations.]" (People v. Smith (2007) 40 Cal.4th 483, 517-518.) Since "[w]e presume that jurors comprehend and accept the court's directions" (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17), we conclude the court's issuance of CALCRIM No. 200 "rendered any conceivable misconduct harmless" (People v. McDowell, supra, at p. 438).
Furthermore, as previously mentioned, the jury-by virtue of its true finding as to the firearm discharge allegation-necessarily relied only on CALCRIM No. 540A when it convicted defendant of felony murder.
IV. The trial court did not abuse its discretion when it excluded Philip's 2019 arrest as evidence of third-party culpability.
a. Background
Prior to trial, defendant filed an "OFFER OF PROOF OF THIRD-PARTY CULPABILITY." Among other things, he stated:
"[Philip] and [Derick] were convicted, (February 20, 2018), for violated [sic] Penal Code § 496d(A)-receiving stolen property. On June 8, 2019 they were arrested for brandishing a firearm during an aggravated marijuana deal gone wrong ....[¶] . . . [¶]
"It is presumed the theory of the People's argument will primarily rest upon this being a marijuana transaction which turned into a robbery gone wrong. The factual evidence that [Derick] and [Philip] were convicted of receiving stolen evidence is critical in that it establishes [they] are prone to engage in property theft actions. The June 9, 2019 arrest support [Derick] and [Philip] were involved in an aggravated assault where he brandished a firearm, physically assaulted an individual during a marijuana transaction supports that [Derick] and [Philip] are prone to violent acts and owns and/or possesses firearms that they use during drug transactions."
At a pretrial hearing, the trial court deemed the 2018 convictions "appropriate" as they involved "a moral turpitude offense." On the other hand, it concluded the 2019 arrests lacked a "sufficient nexus" to the August 24, 2018 shooting. The court expressed reluctance "going into the details of an unlitigated arrest that has not been concluded" and pointed out Philip was "not alleged to have had a gun" at the time of the shooting. Later, the prosecutor informed the court Derick pled "as a juvenile . . . to [section] 240 involving the incident in June of 2019" and "there are no pending charges as to [him]." The court remarked:
"It sounds like [Derick] admitted to a [section] 240, simple assault. I did not hear admission to a firearm being present during that admission. It's not a conviction. It's not a moral turpitude offense. So [Derick] was a minor at the time. So that particular adjudication of [Derick] is not one that would be allowed in this case at this state."
b. Analysis
"' "[T]o be admissible, evidence of the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt, must link the third person either directly or circumstantially to the actual perpetration of the crime. In assessing an offer of proof relating to such evidence, the court must decide whether the evidence could raise a reasonable doubt as to defendant's guilt and whether it is substantially more prejudicial than probative under Evidence Code section 352."' [Citation.] In other words, courts treat third party culpability evidence' "like any other evidence: if relevant it is admissible,"' provided it is not otherwise rendered inadmissible by statute, and' "unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion."' [Citation.] We review the trial court's ruling for abuse of discretion. [Citation.]" (People v. Young (2019) 7 Cal.5th 905, 937.)
" 'Under the abuse of discretion standard, "a trial court's ruling will not be disturbed . . . unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." [Citation.]' [Citations.]" (People v. Lewis (2009) 46 Cal.4th 1255, 1286.) In other words, "[a] court abuses its discretion when its ruling 'falls outside the bounds of reason.' [Citation.]" (People v. Kipp (1998) 18 Cal.4th 349, 371; see People v. Brown (2004) 33 Cal.4th 892, 901 ["' "No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling . . ., itself correct in law, will not be disturbed on appeal merely because given for the wrong reason."' "].)
On appeal, defendant contends the court erroneously excluded Philip's 2019 arrest as third party culpability evidence. The court's ruling, however, did not fall outside the bounds of reason. First, "mere arrests are usually inadmissible, whether as proof of guilt or impeachment ...." (People v. Medina (1995) 11 Cal.4th 694, 769; accord, People v. Anderson (1978) 20 Cal.3d 647, 650.) Next, defendant introduced Philip's prior arrest to show his propensity for violent acts, but "[s]uch evidence does not amount to direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (People v. Davis (1995) 10 Cal.4th 463, 501.) Finally, while defendant introduced the prior arrest to also show Philip's propensity to own or possess firearms during drug transactions, there was no allegation Philip was armed on August 24, 2018. (See Evid. Code, § 350 ["No evidence is admissible except relevant evidence."].)
We point out the court admitted other evidence of third-party culpability, such as Jaleen's August 24, 2018 statements identifying Brandon as the instigator of the shooting.
V. Defendant forfeits his contention regarding Sergeant Benson's "self proclaimed ability to tell if someone is being truthful or lying." (Italics &capitalization omitted.)
a. Background
On the prosecution's direct examination of Benson, the following exchange occurred:
"Q Can you tell us just generally when you begin to investigate a homicide at the point in time when the incident has just happened, how would you describe how you go about collecting information when perhaps you don't know anything about what has occurred at the very front of the investigation?
"A Well, the most important thing with any investigation is the crime scene is initially what is incredibly important. But for me, getting the most accurate information is going to be talking to people. That's where you're going to get your true information from. And in certain cases, most of which being homicide cases, that's probably our most difficult task is getting people to come forward and provide us information.
"Q In your experience is it common for witnesses to initially give a false statement or lie about what they have witnessed in a homicide case?
"A I've been involved in investigations for over half of my career, and I am more shocked when we get the truth the first time than I am with a lie. Typically what will happen in all shooting cases and homicide cases is people will typically give us false information the first couple of times, and will take us numerous times to get the truth out of people.
"Q Okay. And at times when you begin the investigation and you're getting false information, are you also asking questions that at the time you may not have all of the information or know all of the details of the homicide?
"A That's correct. And again, it's on a case-by-case basis. Certain times when we question individuals we know the answer. We just want to see if they're going to be truthful or not. And often, initially, we don't have those answers, and we're trying to seek them at the time. And when we conduct our first set of interviews, we're thinking about the crime scene and what's at the crime scene. What's not at the crime scene. And we're trying to see if their statement matches up to what we've initially seen at the crime scene.
"Q Can you describe if there's some type of a protocol while you're doing such an investigation-when you're actually questioning somebody that you believe to be a suspect or a witness, is there a protocol that you use to go about asking the questions and getting more information?
"A There is absolutely no protocol when we talk to witnesses and people, because everyone is different. And that's what I expect from my detectives. When you walk into an interview room, you cannot conduct one interview like you conduct another because everyone is different. Everyone is going to respond differently. So there is no set protocol in regards to speaking to individuals. Just as the detective to be successful, you have to have the ability to speak to everyone.
"Q Okay. And is there something that you in particular do when you're questioning a witness? Something that you do that . . . is true for all the witnesses that you talked to?
"A I do. "Q And what would that include?
"A Telling them that the only thing ultimately I want from them is to simply tell the truth. That is what we want. That is our ultimate goal in every investigation is we're seeking the truth. And it's easy thing to do. It's just very difficult to get there.
"Q Do you ever in your questioning of witnesses try to direct them to answer your question the way in which you want to be answered?
"A Oftentimes, yes.
"Q And can you explain that a little bit more?
"A Well, yes. If we're speaking to someone, and we know that they are lying, there are several different ways we may go about attempting to get the truth. And that sometimes is repeating questions. Sometimes it's going round and round and asking questions in a different way. But ultimately, our goal-it doesn't matter how we ask. We're trying to obtain the truth." (Italics added, boldface omitted.)
The italicized portions are the remarks defendant specifically disputes.
Defense counsel did not raise any objections to this testimony.
On the defense's cross-examination, the following exchange occurred concerning Benson's September 7, 2018 interview of Philip (see ante, at pp. 16, 21-22):
"Q Okay. And was it your testimony that you believed that [Philip] in his prior statements had been lying?
"A Yes. That's what the detective told me, that he was not being hundred percent honest. And as I'm sitting with him, and I'm interviewing him, didn't take me long to realize that I too felt he was not being hundred percent honest.
"Q Okay. But you never met him before?
"A No.
"Q You didn't know anything about him?
"A Absolutely nothing.
"Q Didn't know anything about his history?
"A No.
"Q Don't know if he's an honest person?
"A No. But ma'am, I have been interviewing people for many, many years. And I've conducted many, many interviews. And I felt that he was not being hundred percent honest.
"Q But there's nothing about having done many, many interviews that makes you able to single-handedly determine if someone is being honest, fair to say?
"A Absolutely not, ma'am. As I stated before, prior going into homicide I investigated African American shootings for five years. In addition to that, I spent five years in the homicide unit. I'm in my third year of supervising. I have conducted numerous interviews, monitored interviews. What I will typically do now is monitor interviews in a different room and bring detectives out and tell them where I feel people not being hundred percent truthful. So I think that experience is enough to tell me whether or not I feel someone is being truth[ful] when I'm talking to them.
"Q But the reality is you were not there when the shooting occurred, so there is no way for you to actually know if someone is being honest with you.
"A Absolutely, ma'am. That is not correct at all. Again, I go to my training and my many years of investigations and my many years of interviews to know when I feel that someone is being truthful and someone is not.
"Q So you can know if someone is being truthful just because you've done many interviews, is that your testimony?
"A Absolutely.
"Q Okay. Have you ever been wrong?
"A Oh, I've been wrong on numerous occasions, ma'am. But I know when someone is telling the truth and someone is lying.
"Q How do you know?
"A From years and years of experience and years and years of conducting investigations and interviews." (Italics added, boldface omitted.)
The italicized portions are the remarks defendant specifically disputes.
Thereafter, the court called for a recess. Outside the jury's presence, the court advised defense counsel:
"[An] area I'm concerned about is [your] questions asking of variety of witnesses their ability to recognize truth versus a lie. No one is a lie detective-detector in this courtroom including Sergeant Benson, Detective Ledbetter, . . . you, I or anyone else. But when you keep asking him those questions, and he starts vouching for witnesses in the positive or in the negative-the positive would be I think this person is being truthful. The negative is I know how to tell when someone is telling untruth. So you're making him vouch for witnesses that I would certainly not allow the People to do and would be an error for them to commit such inquiries when you are asking those questions. [The prosecutor] is not objecting. I'm just being very uncomfortable by the nature of those questions can he tell if someone is being truthful. You can address that in your closing statements. But when you're making him say those things, you can't later say that's some sort of an error or incompetence of counsel."
Defense counsel replied, "I understand."
A few days later, outside the jury's presence, defense counsel informed the court she might file an Evidence Code section 402 motion. Specifically, she would raise "two cases related to reversal that [Benson]'s had prior to this related to his testimony" "that he knows one hundred percent when someone is telling the truth, and those same statements are made in his interviews to [defendant]." The court responded:
"[Y]ou could have covered that early on. [¶] . . . [¶] . . . You could still object to that as counsel of any particular case that no person can do any such task by knowing a hundred percent of anybody's ability to tell the truth or not to tell the truth. We are not walking lie detectors. [¶] . . . [¶]
". . . [W]e had this conversation ....And I made the exact same comment that no one is one hundred percent able to tell if a person is lying or telling the truth. And no one is a lie detector. And we went through a lot of those interviews early on in this case, and you knew the substance of those interviews. You could have objected to those long narrations that the sergeant made, and you did not ...."
Defense counsel conceded she did not object.
b. Analysis
" 'A party desiring to preserve for appeal a challenge to the admission of evidence must comply with the provisions of Evidence Code section 353, which precludes reversal for erroneous admission of evidence unless: "There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated to make clear the specific ground of the objection or motion."' [Citation.]" (People v. Ramos (1997) 15 Cal.4th 1133, 1171.)" 'In accordance with this statute, [the California Supreme Court] ha[s] consistently held that the "defendant's failure to make a timely and specific objection" on the ground asserted on appeal makes that ground not cognizable. [Citation.]' [Citation.]" (People v. Partida (2005) 37 Cal.4th 428, 433-434 (Partida).)
"The objection requirement is necessary in criminal cases because a 'contrary rule would deprive the People of the opportunity to cure the defect at trial and would "permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal."' [Citation.] 'The reason for the requirement is manifest: a specifically grounded objection to a defined body of evidence serves to prevent error. It allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice. It also allows the proponent of the evidence to lay additional foundation, modify the offer of proof, or take other steps designed to minimize the prospect of reversal.' [Citation.]" (Partida, supra, 37 Cal.4th at p. 434.)
Here, defendant did not raise any objections below to the parts of Benson's testimony now being challenged. Furthermore, much of the testimony "about which defendant now complains was elicited by his own counsel. Thus, any error was invited, and defendant may not challenge that error on appeal." (People v. Williams (2009) 170 Cal.App.4th 587, 620.)
VI. To the extent parts of Sergeant Benson's testimony constituted impermissible burden shifting to the defense, any purported error was rendered harmless by the trial court's instructions to the jury.
a. Background
Before trial commenced, the trial court read CALCRIM No. 103 (Reasonable Doubt) to the jury:
"I will now explain the presumption of innocence and the People's burden of proof. The defendant has pleaded not guilty to the charge. The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime or brought to trial.
"A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.
"Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. In deciding whether the People have proved their case beyond a reasonable doubt you must impartially compare and consider all the evidence that was received through-out the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt he is entitled to an acquittal, and you must find him not guilty."
On the prosecution's direct examination of Benson, the following exchange occurred:
"Q Now, is it common protocol for the Fresno Police Department to take a sample-a [gunshot residue] sample from all individuals that are in the area of where a gun is shot?
"A Again, as I testified to before, if we make contact with him or her within a certain time-frame, that being about four hours four to six hours, we would typically test. Now, in some situations, our detectives- and if I'm on scene, I will have them test or send a sample even though we know that Ripon is not going to accept it.
"Q And why would you do that?
"A We did that because, first of all, to be thorough. Second of all is, we have that evidence, and we maintain it. And that evidence is for everyone. Not just for us. It's for anyone involved in this case. Simply because we cannot get it tested does not mean that the sample cannot be taken from someone else. Say, the defense. And they can send it out to be tested as well. Or make attempts to have it tested as well.
"Q Did anyone from the defense team in this case contact you and ask to test Brandon['s] . . . gunshot residue sample?
"A I was contacted by you, and I was advised that the defense wanted to first view every piece of evidence that was related to this case.
"[DEFENSE COUNSEL]: Objection, nonresponsive.
"THE COURT: Sustained on that ground.
"[Q] Specifically, as to the gunshot residue sample that was taken from [Brandon]. Did defense ask for that sample to do their own testing?
"A I have never been contacted by defense to have this [gunshot residue] test sent out-kit sent out to be tested.
"Q Okay. And did anyone from the defense team contact you regarding viewing the evidence in this case?
"[DEFENSE COUNSEL]: Objection, relevance.
"THE COURT: Sustained.
"[Q] Did you make all of the evidence available to defense counsel if they wanted to view it?
"[DEFENSE COUNSEL]: Objection, relevance.
"THE COURT: Next question ....Sustained." (Italics added, boldface omitted.)
Thereafter, the court called for a recess. Outside the jury's presence, the court advised the prosecutor:
"I don't want to hear any shifting of any burden from the People to the defense. There were very few objections-and had there been an objection I would have immediately sustained it. Whether the defense asks a piece of evidence to be retested or not or is it available or not is a very, very dangerous area to get into. Because then you're suggesting that the defense should have done something. That burden is on the People. After the case is completed-completely completed and there is reason to argue based on the evidence any references to such things based on the evidence, then in closing argument you may want to again visit how you go about that. Be careful about that. Because shifting of the burden is a very dangerous area to be in in any form or fashion. So give some thought to what I've said. I'm not asking for any response right now. I'm just telling you be careful about that. There were no objections on that subject except for one or two, and I sustained them, I believe. And so, I will leave it at that."
On the defense's cross-examination, the following exchange occurred:
"Q I believe you testified that generally if you were to send gunshot residue for testing it would go to the Ripon laboratory?
"A That's who we generally use.
"Q And did you take any gunshot residue kits to the Ripon laboratory as it relates to this case?
"A Detective Ledbetter to my understanding made several attempts to have the gunshot residue kit tested by Ripon, and they declined. And it's also to my knowledge that the District Attorney's office also made contact with Ripon and attempted to have this kit tested by Ripon, and they declined. And to this date I have not received a request from you to have that information sent out to be tested.
"Q Right. Well, the question wasn't if I had. The question was if you had ever tried.
"A Okay.
"Q So the answer is no, you never tried, fair to say?
"A The lead detective on the case is the one that would send that out. I would not be responsible for making any attempts to have anything tested. I supervise the unit. Detective Ledbetter is in charge of the case.
"Q And you supervised Detective Ledbetter?
"A Yes, I do.
"Q And did you ever see any reports authored by Detective Ledbetter documenting the process of sending the gunshot residue kits to the laboratory and those being denied?
"A I did not. However, Detective Ledbetter informed me that he had attempted to send those out, and that he was denied.
"Q Okay. And Ripon laboratory isn't the only laboratory that can test gunshot residue, fair to say?
"A I can send it to Ripon. And ma'am, you also have the ability to send it to anywhere you want to send it as well.
"THE COURT: Counsel, next question, please.
"[DEFENSE COUNSEL]: Thank you." (Italics added, boldface omitted.) On the defense's direct examination of Benson, the following exchange occurred:
"Q Did you do scientific testing on [Brandon]'s hand for gunshot residue during this investigation?
"A As I testified to before, the kit was collected. We made several attempts to get that kit tested. The DA's office made several attempts-well, made one attempt to get that kit tested, and we were denied.
"Q And did you conduct any independent field studies in relation to ballistics?
"A I did not. And I wasn't contacted by your office either to conduct any additional testing.
"Q The question isn't whether or not my office did it. The question is whether or not you conducted any independent field studies?
"A I did not." (Italics added, boldface omitted.)
The italicized portions are the remarks defendant specifically disputes.
Prior to closing arguments, the court read CALCRIM No. 220 (Reasonable Doubt) to the jury:
"The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime are [sic] brought to trial. A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. When I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.
"Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. In deciding whether the People have proved their case beyond a reasonable doubt you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt he is entitled to an acquittal, and you must find him not guilty."
b. Analysis
On appeal, defendant contends the challenged remarks "incorrectly and egregiously give the jury the direct impression that the defense failed to perform an investigation" and "imply[] that the defense has a duty to prove [his] innocence[.]" (Boldface &italics omitted.) To the extent defendant is correct, the record demonstrates the trial court-via CALCRIM Nos. 103 and 220-"instructed the jury defendant was presumed innocent until his guilt was proven, and that this presumption placed on the prosecution the burden of proving him guilty beyond a reasonable doubt." (People v. Frye (1998) 18 Cal.4th 894, 973, overruled in part by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) In light of these instructions, any purported error was rendered harmless. (See People v. Mickey, supra, 54 Cal.3d at p. 689, fn. 17 ["We presume that jurors comprehend and accept the court's directions."].)
VII. Defendant forfeits his contention regarding Detective Ledbetter's "highly emotional, inflammatory, and prejudicial" remarks.
a. Background
On the defense's cross-examination of Ledbetter, the following exchange occurred regarding one of Ledbetter's August 2018 interviews of Adrian (see ante, at pp. 6-7):
"Q And did you tell [Adrian] that a man is dead? Someone has to answer for that?
"A I did say that.
"Q Did you say that twice, in fact, during that interview?
"A I could have. Yes.
"Q And the man you were referring to was [Brandon]?
"A The man who got shot?
"Q Yeah.
"A Did I say-I don't remember if I meant him or [Jaleen].
"Q You said a man is dead. Someone has to
"A That's correct. It would be [Brandon] then.
"Q When you say someone has to answer for that, you mean someone other than [Brandon]?
"A Yes.
"Q Okay. Do you mean that someone has to answer for that even if [Brandon] is the one that initiated the gun fire?
"A Yes." (Italics added, boldface omitted.)
The italicized portions are the remarks defendant specifically disputes.
On the prosecution's redirect examination, the following exchange occurred:
"[Q] .... There was the statement-you were reminded of your statement, quote, A man is dead, someone has to answer for it. Do you recall that?
"A I do.
"Q And [defense counsel] asked you, Someone has to answer it, even if the victim initiated the gunfire; do you recall that?
"A I do.
"Q And you said, Yes?
"A Yes. I said yes.
"Q And why did you say, Yes?
"A Cause I have a dead man. I have a young man who is crippled for the rest of his life. I wanted to know what happened and how this all started." (Italics added, boldface omitted.)
The italicized portions are the remarks defendant specifically disputes.
b. Analysis
On appeal, defendant contends Ledbetter's statements were "highly emotional, inflammatory, and prejudicial" and "highly likely" "relied upon during jury deliberations." Defendant appears to be invoking Evidence Code section 352. (See People v. Escudero (2010) 183 Cal.App.4th 302, 310 [" '[E]vidence should be excluded [pursuant to Evidence Code section 352] as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating [jurors] to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose.' "]; see also People v. McCurdy (2014) 59 Cal.4th 1063, 1095 [" 'Prejudice,' as used in Evidence Code section 352, is not synonymous with 'damaging.' [Citation.] Rather, it refers to evidence that uniquely tends to evoke an emotional bias against the defendant as an individual, and has little to do with the legal issues raised in the trial."].) However, defendant does not indicate he raised an objection below on the basis of Evidence Code section 352. Therefore, he forfeits the claim on appeal. (People v. Valdez (2012) 55 Cal.4th 82, 138; see Evid. Code, § 353; Partida, supra, 37 Cal.4th at pp. 433-434.)
Moreover, by constitutional mandate, "[n]o judgment shall be set aside, or new trial granted, in any cause, on the ground . . . of the improper admission or rejection of evidence, . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13; see Watson, supra, 46 Cal.2d at p. 836 [reasonable probability test].) Even assuming arguendo Ledbetter's remarks were inadmissible, it is not reasonably probable a result more favorable to defendant would have been reached absent these remarks. As we discussed, substantial evidence supported the felony-murder conviction. (See ante, at pp. 26-27.)
VIII. Defendant forfeits his contention as to the admission of Jaleen's September 23, 2019 plea bargain.
a. Background
As previously mentioned, Jaleen entered into a September 23, 2019 plea bargain. Pursuant to the agreement, he pled guilty or nolo contendere to robbery, admitted he personally used a firearm, and agreed to testify truthfully. However, when Jaleen was called to the witness stand, he continuously "plead[ed] the Fifth." The trial court called for a recess. Outside the jury's presence, the court reviewed the plea bargain. When questioned, Jaleen confirmed he understood the terms and conditions of the agreement and the consequences of breaching them, but he still refused to testify. After the jury was brought back into the courtroom, the prosecutor asked the court to receive the plea bargain into evidence. Before doing so, the court asked defense counsel if she objected. Defense counsel answered, "No objection." In the jury's presence, Jaleen again refused to testify and was found in contempt of court.
A few days later, outside the jury's presence, the prosecutor informed the court she would request publication of the September 23, 2019 plea bargain to the jury. When asked about her "thoughts, if any, as to the publication of that document," defense counsel replied, "I don't know that it's necessary to publish it, but certainly, it's in evidence." After the jury was brought back into the courtroom, the prosecutor asked the court to publish the plea bargain to the jury. Before doing so, the court asked defense counsel if she admitted or agreed to the publication. Defense counsel answered, "Yes, Your Honor."
b. Analysis
On appeal, defendant contends the September 23, 2019 plea bargain (1) "is hearsay not meeting an exception and cannot be offered for the truth of the matter asserted"; and (2) "is more prejudicial than probative because it confuses the issue regarding the element of intent, (for robbery), specifically as to [defendant]." (Underlining omitted.) The record demonstrates no objection was raised below. Therefore, defendant forfeits the claim on appeal. (See Evid. Code, § 353; Partida, supra, 37 Cal.4th at pp. 433-434.)
Again, by constitutional mandate, "[n]o judgment shall be set aside, or new trial granted, in any cause, on the ground . . . of the improper admission or rejection of evidence, . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13; see Watson, supra, 46 Cal.2d at p. 836 [reasonable probability test].) Even assuming, arguendo, the plea bargain was inadmissible, it is not reasonably probable a result more favorable to defendant would have been reached absent these remarks for, as we discussed, substantial evidence supported the felony-murder conviction. (See ante, at pp. 26-27.)
IX. Defendant forfeits contentions lacking sufficient citation of authorities.
On appeal, defendant advances arguments about Sergeant Benson's "improper opinion testimony" (capitalization omitted) and law enforcement's slipshod criminal investigation. On these points, he "did not formulate a coherent legal argument nor did [he] cite any supporting authority." (Ochoa v. Pacific Gas &Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3; see People v. Stanley (1995) 10 Cal.4th 764, 793 [" '[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.' "].)" 'When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary.' [Citations.]" (Ochoa v. Pacific Gas &Electric Co., supra, at p. 1488, fn. 3.) Accordingly, we deem these claims forfeited.
Defendant also advances an argument regarding Benson's "lack of documentation." (Boldface &capitalization omitted.) At the end of that argument, he lists-without discussion-a single case. Though defendant may be said to have cited a supporting authority (as opposed to none), he did so perfunctorily. "It is not this court's role to connect the dots." (Perry v. City of San Diego (2021) 65 Cal.App.5th 172, 188, fn. 8.) As we will not develop defendant's claim for him, we decline to address it. (See Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1.)
X. The trial court abused its discretion when it denied defendant's new trial motion.
a. Background
On July 15, 2020, defendant filed a motion for new trial citing to section 1181. Among other things, he argued "a new trial is necessary" because "[t]he verdict is contrary to the evidence." In particular, defendant raised questions about the credibility of the prosecution witnesses.
Following an October 7, 2020 hearing, the trial court denied the motion. With respect to the issue of credibility, it commented:
"Now, I believe that the Defense's perception is if [witnesses] are untruthful then they are not believable and so their credibility has been, therefore, shattered.
"This is why we have a specific instruction that discusses credibility and believability that the Court instructed the jurors, that in the event that they find a witness lied, that they have options as to how to evaluate that testimony. And they're clearly told they can-they can. And they are told in that instruction that they may-before I paraphrase it, let me pull the actual instruction so I don't paraphrase an instruction. And it's [CALCRIM No.] 226, witnesses. And I charged the jurors in my instructions that they are the sole judges of the credibility or believability of the witnesses. And then we go through various items that they may consider in deciding whether the testimony is true and accurate, including their own common sense and experience, which is the current CALCRIM [No.] 226.
"At the end of the instruction, there is a paragraph that is given routinely that if the jurors decided that a witness deliberately lied about something significant in the case, that they may consider not-or they should consider not believing anything the witness says, or if the juror thinks the witness lied about some things but told the truth about other things, you may simply accept the part that is true and ignore the rest.
"So those instructions that are sua sponte, in fact, [CALCRIM No.] 226 is sua sponte, that is given to a jury is to guide them. And the fact that the Court believed certain witnesses may have lied does not unilaterally negate the possibility that the jurors also believed someone lied but at the same time believed the things that he or she said truthfully and evaluated it against other evidence and decided to accept that which they believe and discard that which they didn't, so long as they obviously they believed it was a significant matter, because that's the phrase, significant matter.
"In this case, the jury heard a lot of evidence, conflicting evidence, impeached evidence, testimony that was impeached by both sides through other means and they decided for the decision that they came to.
"So the Court is not in a position at this point to overrule and act like a 13th juror, as the Defense has invited the Court to do so, and strike down the decision made by the jury in this case. Not at least by motion for a new trial. And so that's not something that the Court is agreeable with...."
b. Analysis
Section 1181, subdivision 6 provides: "When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial . . . [¶] . . . [¶] . . . [w]hen the verdict or finding is contrary to law or evidence ...."
In ruling on a section 1181, subdivision 6 motion for new trial, "the trial court accords no evidentiary deference" to the verdict. (People v. Carter (2014) 227 Cal.App.4th 322, 327 (Carter).) "Instead, it independently examines all the evidence to determine whether it is sufficient to prove each required element beyond a reasonable doubt to the judge, who sits, in effect, as a '13th juror.' [Citations.] If the court is not convinced that the charges have been proven beyond a reasonable doubt, it may rule that the jury's verdict is 'contrary to [the] . . . evidence.' [Citations.] In doing so, the judge acts as a 13th juror who is a 'holdout' for acquittal. Thus, the grant of a section 1181(6) motion is the equivalent of a mistrial caused by a hung jury. [Citation.]" (Porter v. Superior Court (2009) 47 Cal.4th 125, 133; see People v. Robarge (1953) 41 Cal.2d 628, 633 ["It has been stated that a defendant is entitled to two decisions on the evidence, one by the jury and the other by the court on motion for a new trial."].)
"The court has broad discretion in ruling on a new trial motion, and the court's ruling will not be overturned absent a clear and unmistakable abuse of that discretion." (Carter, supra, 227 Cal.App.4th at p. 328.) "The court abuses its discretion, however, where it misconceives its duty, applies an incorrect legal standard, or fails to independently consider the weight of the evidence." (Ibid.)
In the instant case, the court's comments evinced it "misunderstood its duty and the correct legal standard in ruling on the new trial motion." (Carter, supra, 227 Cal.App.4th at p. 328.) As such, it abused its discretion because it "failed to give defendant the benefit of its independent conclusion as to the sufficiency of credible evidence to support the verdict." (People v. Robarge, supra, 41 Cal.2d at p. 634.)
DISPOSITION
The order denying the motion for new trial is reversed and the matter is remanded for further proceedings. On remand, the trial court shall again hear and determine the motion for new trial in accordance with the rules hereinabove stated. If the motion is granted, a new trial shall be ordered. If the motion is denied, the trial court shall resentence defendant. In all other respects, the judgment is affirmed.
WE CONCUR: MEEHAN, J., SNAUFFER, J.