Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA264438,George G. Lomeli, Judge.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie A. Miyoshi and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.
COOPER, P. J.
Kevin Haynes appeals from the judgment entered following a jury trial that resulted in his conviction of attempted murder of a peace officer (Pen. Code §§664/187, subd. (a); count 1), assault on peace officer with semiautomatic firearm (§245, subd. (d)(2); count 2), possession of a firearm by felon (§12021, subd. (a)(1); count 3); findings that during the commission of counts 1 and 2, he personally and intentionally discharged a firearm proximately causing great bodily injury (GBI) or death (§12022.53, subds. (b)-(d)) and inflicted GBI (§12022.7, subd. (a)); and his admissions to having suffered two prior serious felony convictions (§667, subd. (a)(1)) which also qualified as strikes under the Three Strikes law (§667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and to having served three prior prison terms (§667.5, subd. (b)).
All further section references are to the Penal Code unless otherwise indicated.
Appellant was sentenced to prison on count 1 to 15 years to life, plus 25 years to life for a firearm enhancement (§12022.53, subd. (d)) and a determinate term of 11 years, consisting of a five year term for each of the two prior serious felony enhancements (§667, subd. (a)(1)) and 1 year for one prior prison term (§667.5, subd. b)) and on count 3 to 25 years to life. The court imposed a $200 restitution fine (§1202.4, subd. (b)) and a $200 parole revocation fine (§1202.45) and ordered him to pay a single $20 court security fee.
He contends the judgment must be reversed, because the trial court refused to allow the defense to cross-examine a key witness on the issue of whether his trial testimony was biased in view of the inducement he had received from the People, which abridged his right to present a defense and his guarantee of due process (U.S. Const., 6th &14th Amends.; Cal. Const., Art. 1, §15).
By letter we invited the parties to address whether the trial court committed unauthorized sentencing error by imposing a single $20 court security fee instead of a fee for each of appellant’s convictions and if so, what the total amount of the fees should be. We have received their responses.
Based on our review of the record and applicable law, we modify the judgment to reflect the imposition of a $20 court security fee for each of appellant’s three convictions in the aggregate amount of $60.00. In all other respects, we affirm the judgment.
BACKGROUND
We recount the evidence in the light most favorable to the People and presume the existence of every fact the trier of fact could reasonably deduce from the evidence that supports the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) This evidence established that during a confrontation with police, appellant, a convicted felon and member of the Five Trey Avalon Gangster Crips, fired a semiautomatic handgun at an officer, striking him.
On April 29, 2004, about 10:40 p.m., while on gang detail in a marked patrol vehicle, Los Angeles Police Department uniformed officers Garret Cross and Robert Deamer observed appellant, who resembled a gang member, talking on a cell phone and leaning against a door at 945 East Jefferson. After observing Deamer who had exited the vehicle, appellant, who looked surprised, grabbed his outer shirt at the waistband, which led Deamer, based on experience, to believe he had a gun.
Appellant entered the gated area of the apartment complex, slammed the gate shut, and locked it. He then ran through the complex, turned westbound, and jumped over the fence onto the next property. After opening a back gate, he ran into the alley where Cross chased him heading westbound.
Appellant next “turned left” at 929 and 931 East Jefferson and ran into a parking lot. Cross was about 10 feet away when appellant fired five or six times, hitting him in the stomach and leg and causing him to bleed heavily. Appellant was hit when Cross returned fire with his own firearm and fled.
Deamer, who was in the alley when he heard the shots, came upon Cross, who had moved behind a car and reloaded his weapon, and radioed for back up. Almost immediately, Sergeant Daniel Putz, their supervisor, responded along with other officers.
A perimeter was set up, and a police helicopter shined a high beam from above. About 10:50 p.m., Officers Michael Mitchell and Michael Zolezzi were working the perimeter at Jefferson and Paloma when appellant, the only other person in the vicinity, walked out from between two houses towards the officers.
Zolezzi ordered appellant to put his hands up and approach. Appellant, who had a graze wound on his right forearm and blood on his shirt, was then detained. Appellant’s injury was consistent with a gunshot graze, and the DNA from cuttings taken from his shirt was consistent with appellant’s DNA.
Tyrone Harris, who resided at 3441 South Paloma Street, informed police appellant had gone into the crawlspace of a neighbor’s house and showed police the grate entry. Officer Ryan Bellows found a Ruger 9 mm semiautomatic handgun in a crawlspace on the south side of 3439 1/2 South Paloma. Fresh blood was on the slide and hammer of the gun and a round was in the chamber. Appellant’s DNA profile matched the DNA collected from the blood on the Ruger. In a nearby trash can, a weapon magazine which had four bullets was discovered.
The single fired bullet and two fired cartridge casings recovered from the scene were fired from the Ruger. The deformed bullet also recovered there was consistent with a 9 mm bullet and could not be eliminated as having been fired from that gun.
During the execution of a search warrant on appellant’s residence at 941 East Jefferson, police found in a dresser drawer a box for the same type of cell phone found at the crime scene and the serial numbers on the box matched that cell phone. Appellant’s checkbook and medication were located in another drawer.
At the scene, Harris described the individual he saw as a male with a heavy-set face in his late 20’s or early 30’s wearing a t-shirt and black jeans who stood about five feet, eight inches to six feet tall and weighed about 180 to 190 pounds and also identified him from a photographic lineup. At trial, he had “no doubt” in identifying appellant.
Deamer had described the suspect to other officers during the perimeter operation as an African-American male in a light t-shirt with shaved head and standing six feet tall. When he was detained, appellant was wearing a blue and white shirt, a white t-shirt, blue jeans, and blue and white shoes. After arriving at the location where appellant was detained, Deamer identified and then lunged at appellant, who denied shooting anybody in response.
Appellant relied primarily on a mistaken identity defense. He denied knowing who Harris was, having a gun, and shooting Cross. He explained while being chased by two unknown men, he dropped his cell phone in the alley and injured himself on a spiked fence and cut his hand on a piece of glass as he fell while jumping a gate. When Deamer lunged at him, appellant responded, “‘I didn’t do nothing to nobody.’”
DISCUSSION
1. No Improper Curtailment of Cross-examination or Denial of Right to Present Defense Shown
Appellant contends the trial court abused its discretion and committed reversible error by precluding him from cross-examining Harris regarding inducement for his testimony on behalf of the prosecution, which would have demonstrated Harris’ bias. He further contends such error denied him his right to confront witnesses (U.S. Const., 6th Amend.; Cal. Const., Art. 1, §15) and thereby abridged his due process right to present a defense (U.S. Const., 14th Amend.). The record does not support his claim of error. We therefore conclude that having failed to show any improper curtailment of cross-examination, his constitutional claims also fail.
a. Pertinent Trial Proceedings
Prior to Harris’ testimony, appellant’s attorney requested the trial court allow him to cross-examine Harris on the issue of inducement for his testimony to show bias, which was relevant, because he believed Harris’ trial testimony identifying appellant as the perpetrator, in light of such inducement, would be much stronger than his pre-trial identification of appellant.
He explained Harris was “extremely tentative” in his identification during his initial police statement and a photo-lineup. Later, Harris was arrested on an outstanding felony warrant in an unrelated matter. Appellant’s attorney stated: “The District Attorney and the I.O. were notified that he was in custody on a warrant and spoke to the District Attorney prosecuting the case, looked into having him housed out in Montebello because he was cooperating in a homicide investigation, and instead, my understanding is – correct me if I’m wrong – asked the district attorney to approve an O.R. Release.” He added, “Harris was released on his own recognizance, and that case was eventually dismissed, and my understanding is for failure of prosecution, either pursuant to Serna or some other motion that the People submitted.” He argued “it becomes a fair area of cross-examination[,]” because [h]e was in custody. He was released on his own recognizance because of his assistance in this case.”
The trial court did not find any relevant connection. The court explained if Harris’ “had gained O.R. release and/or the implication being that perhaps they didn’t strenuously follow his case or prosecute his case, then I think you would be in a better footing, or if he modified his statements to the police after that happened, said, ‘Oh, you know what? My recollection has been refreshed and this is what happened.’” The court pointed out this was not the case and that it also was not the case that Harris initially was reluctant to testify in this case and said “‘I’m not coming forward,’ [and] then said ‘You know what? I’m going to cooperate.’”
The prosecutor denied offering Harris any inducement to testify in this matter. He stated he had been in contact with Harris throughout the whole case. “He has made every appearance to come to testify as a witness; there were a lot of delays.” Harris was picked up on the warrant “relatively late in the game.”
He expressed his concern at that time for the safety of Harris, whom he believed was “a 53 year-old man, no criminal history whatsoever. He was picked up on a an older warrant that no one had proceeded on. We were contacted.” “[I]t was right around the same time where there were some stabbings in the jail, and it was very controversial, about people being killed in the L.A. County jail[.]”
The prosecutor admitted instructing his “investigating officer if he could get an O.R., that’s fine, but not to communicate it to defendant [sic]. I said the same thing to the D.A.’s handing the case, not to do anything lenient, if he was going to be prosecuted, go ahead and prosecute him, don’t do anything for him. And [appellant’s attorney’s] investigation reveals that I made that statement, no leniency whatsoever.”
He added that although he knew what happened to the other case, he wanted to hear it from Harris and asked him during an interview “today,” “‘so whatever happened with your case[?]’” Harris responded, “‘It was dismissed because of a Serna motion[.]’” When asked what that meant, Harris “just said ‘the case was old, they knew where I was forever, but they never did anything about it, so my lawyer had the case dismissed,’ I said ‘Okay.’”
When asked if he though the prosecutor “‘had anything to do with that,’ he goes, ‘[n]o, not at all, I don’t think you had anything to do with that[.]’” The prosecutor then asked if he thought he “‘did anything for you on that case at all,’ [Harris] said ‘the only thing I got suspicious about is when I was in custody in the L.A. County Jail, they segregated me, and I thought maybe you did that for my safety, because I don’t know anybody in there.’”
Appellant’s attorney argued “it’s a bit disingenuous for [Harris] to say ‘I had no idea you did anything.’ The People did encourage the D.A. prosecuting Mr. Harris to release him O.R.” He stated it appears Harris was “the one who initiated the communication to either the I.O. or the D.A., ‘I am in custody.’” He added that although “there are no notes to flesh this out, . . . it appears that it was Mr. Harris advising his attorney ‘I’m cooperating on a homicide,’ [and his] attorney initiated contact with either the detective or the D.A., and the next thing Mr. Harris knows, he’s being released.”
The trial court denied the request without prejudice. The court earlier explained the inducement issue was not relevant, because Harris’ statement and his tentative identification had been made prior to any inducement. The court indicated if the inducement issue ripened during cross-examination, it would be willing to reconsider its ruling.
During direct examination, Harris testified at about 10:45 p.m., he was sleeping when he was awakened by banging on his door. Upon investigating, he saw a stranger standing on his porch and asked who he was. Appellant responded by asking for a man whom Harris explained lived next door. After looking first toward Jefferson Boulevard and then the other direction, appellant stepped down and began walking in between Harris’s house and the neighbor’s. Harris, who went to the rear of his house and looked out the back window, observed appellant opening a grate and going underneath the house behind Harris’.
Within a couple of minutes, appellant opened the grate and walked out. He then looked toward Jefferson and walked across the street to speak with some individual who had come outside as a helicopter flew overhead and two police cars approached.
Afterward, appellant approached Harris’ house, again walked between the two houses, and went under the same house. Upon emerging about a minute or two later, appellant once more looked toward Jefferson and then walked in that direction.
On cross-examination, appellant’s attorney elicited Harris’ admission to having made inconsistent statements during his first police interview and that during the photo-lineup Harris indicated he did not have a good view of the individual or his face and he was unsure in identifying that person.
During re-direct examination, Harris was absolutely sure appellant was the person he saw on his porch and the one who entered the crawlspace.
At this juncture, appellant’s attorney renewed his request to be allowed to question Harris regarding inducement and bias. He argued Harris’ identification of appellant was much stronger at trial than his pre-trial identification, which occurred prior to any inducement.
The trial court denied the request, finding it was speculative that Harris had been given any favoritism.
b. Governing Legal Principles
The Sixth Amendment right to confrontation of “the federal Constitution guarantees an opportunity for effective cross-examination, not a cross-examination that is as effective as a defendant might prefer. (United States v. Owens (1988) 484 U.S. 554, 559.)” (People v. Carter (2005) 36 Cal.4th 1114, 1172.)
“‘“[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby, ‘to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.’” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680 (Van Arsdall), quoting Davis v. Alaska (1974) 415 U.S. 308, 318.) However, not every restriction on a defendant’s desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. (Van Arsdall, supra, 475 U.S. at pp. 678-679 . . . .) California law is in accord. [Citation.] Thus, unless the defendant can show that the prohibited cross-examination would have produced “a significantly different impression of [the witness’] credibility” (Van Arsdall, supra, 475 U.S. at p. 680), the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment.’ [Citation.]” (People v. Carpenter (1999) 21 Cal.4th 1016, 1050; accord, People v. Chatman (2006) 38 Cal.4th 344, 372.)
It is a “well established principle that the defense is entitled to elicit evidence that a witness is motivated by an expectation of leniency or immunity [citations] . . . [citations]. Such evidence is obviously probative of bias or motive.” (People v. Dyer (1998) 45 Cal.3d 26, 49.)
As a general rule, where no objection is made on a particular constitutional ground, the defendant forfeits his claim of error on such ground for the purpose of appellate review. (See, e.g., People v. Waidla (2000) 22 Cal.4th 690, 718, fn. 4; People v. Musselwhite (1998) 17 Cal.4th 1216, 1253; People v. Carpenter (1997) 15 Cal.4th 312, 411; People v. Marshall (1996) 13 Cal.4th 799, 830-831; People v. Rodrigues (1994) 8 Cal.4th 1060, 1155; People v. Mitcham (1992) 1 Cal.4th 1027, 1044.)
An exception to forfeiture exists where “it appears that either the appellate claim is the kind that required no trial court action to preserve it, or the new arguments do not invoke facts or legal standards different from those the trial court itself was asked to apply, but merely assert that the trial court’s act or omission, insofar as each was wrong on grounds actually presented to that court, had the additional legal consequence of violating the Constitution. To that extent, defendants’ new constitutional arguments are not forfeited on appeal. [Citations.]” (People v. Lewis (2006) 39 Cal.4th 970, 990, fn. 5, citing to People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17.)
Nonetheless, “rejection on the merits of a claim that the trial court erred on the issue actually before that court necessarily leads to rejection of the newly applied constitutional ‘gloss’ as well. No separate constitutional discussion is required in such cases . . . .” (People v. Lewis, supra, 39 Cal.4th at p. 990, fn. 5.)
c. Claim of Unduly Restricted Cross-examination Not Forfeited
The record reveals appellant did not object on the grounds now urged for the first time on appeal that restriction of his cross-examination of Harris violated both his right to confront witnesses (U.S. Const., 6th Amend.) and his right to present a defense (U.S. Const., 14th Amend.) Respondent contends appellant forfeited his claims of error by failing to object on the grounds now urged for the first time on appeal. We disagree.
Appellant raises no new or different factual or legal theories in connection with his constitutional claims. Rather, his position simply is the trial court’s undue restriction of his right to cross-examination “had the additional legal consequence of violating the Constitution.” (People v. Lewis, supra, 39 Cal.4th at p. 990, fn. 5.) Accordingly, review is not foreclosed by his failure to object to the trial court’s action on the constitutional grounds now urged on appeal. On the other hand, “[n]o separate constitutional discussion is required . . . and we therefore provide none,” because, on the merits, appellant’s underlying claim of error is unsuccessful. (Ibid.)
d. No Factual Foundation Laid for Proposed Cross-examination
Although a defendant is entitled to elicit evidence favorable to his or her defense, a defendant is not entitled to engage in a fishing expedition based on a speculative showing such evidence might exist. (See People v. Gallego (1990) 52 Cal.3d 115, 197 [no abuse of discretion by failing to allow defendant to conduct fishing expedition to attempt to discover good cause when no independent basis to believe good cause exists]; People v. Yeoman (2003) 31 Cal.4th 93, 163 [evidentiary hearings not fishing expeditions to search for possible misconduct; rather such hearings conducted only when defense comes forward with evidence demonstrating a strong possibility prejudicial misconduct has occurred].)
“‘The trial court has broad discretion in determining the relevance of evidence [citations] but lacks discretion to admit irrelevant evidence.’ [Citation.]” (People v. Thornton (2007) 41 Cal.4th 391, 444.) Accordingly, no abuse of discretion arises where the line of inquiry foreclosed is not likely to produce evidence relevant to the issues presented. (See, e.g., People v. Dyer, supra, 45 Cal.3d 26, 50 [absent some agreement furnishing possible bias or motive to testify against defendant, fact witnesses charged with commission of unrelated offenses irrelevant where charges dismissed or reduced before witnesses took stand].)
Appellant’s counsel sought to attack Harris’ credibility by eliciting Harris’ admission on cross-examination that his trial testimony was the product of inducement provided by the People. The trial court properly excluded this line of inquiry, because appellant failed to offer any colorable showing such cross-examination was likely to produce evidence from which the jury could find such improper inducement existed, and thus, draw a permissible inference that Harris’ testimony on direct examination was motivated by such inducement.
During the hearing, the prosecutor expressly denied recommending leniency for Harris to the prosecutors in Harris’ case. He stated that he in fact urged them to go forward against Harris.
Against this strong showing, defense counsel simply argued that after Harris informed his attorney that Harris was cooperating in a homicide, Harris was released on his own recognizance in an unrelated matter at the behest of the prosecutor in this case and the case against Harris was dismissed shortly afterwards. Absent more, the proffered causal connection between such communication and Harris’ release and dismissal of his case is simply speculative. Appellant offers nothing else. (See, e.g., People v. Mendoza (2000) 24 Cal.4th 130, 174 [defendant’s argument based on speculation, not evidence, rejected]; see also, People v. Superior Court (Crook) (1978) 83 Cal.App.3d 335, 341 [statements by counsel not evidence].)
2. Preclusion of Inducement Cross-examination Nonprejudicial and Harmless
Appellant contends the trial court should have allowed his cross-examination of Harris on the issue of inducement to show bias, because “under Evidence Code section 352, it is generally accepted that trial judges in criminal cases should give a defendant the benefit of any reasonable doubt when passing on the admissibility of evidence as well as determining its weight . . . .” He argues the probative value of his anticipated cross-examination mandates such cross-examination be allowed, because unless “the dangers of prejudice, confusion and undue time consumption,” which he apparently urges are nonexistent or de minimis, “substantially outweigh probative value, the objection [to admissibility of evidence] must be overruled.” Appellant’s position is based on a misapprehension of the applicability of section 352 of the Evidence Code and for this reason is untenable. To the extent his position broadly may be understood to encompass a claim appellant was prejudiced by the exclusion of Harris’ testimony on the issue of inducement, his position is unsuccessful.
a. Review Foreclosed by Absence of Trial Court Ruling under Evidence Code section 352
Evidence Code section 352 provides: “The [trial] court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues or of misleading the jury.”
“When an objection to evidence is raised under Evidence Code section 352, the trial court is required to weigh the evidence’s probative value against the dangers of prejudice, confusion, and undue time consumption. Unless these dangers ‘substantially outweigh’ probative value, the objection must be overruled. [Citaion.] On appeal, the ruling is reviewed for abuse of discretion. [Citation.]” (People v. Cudjo (1993) 6 Cal.4th 585, 609.)
“The trial court is vested with wide discretion in determining the admissibility of evidence. Its exercise of discretion under Evidence Code section 352 will not be disturbed on appeal absent a clear abuse, i.e., unless the prejudicial effect of the evidence clearly outweighs its probative value. [Citation.] Moreover, the record must affirmatively show that the trial court did in fact weigh the prejudicial effect of the evidence against its probative value. [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 637; accord, People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.) The court, however, need not state for the record that under section 352 it had weighed the potential prejudice against the probative value of the evidence. (People v. Taylor (2001) 26 Cal.4th 1155, 1169.)
The record reflects, and appellant acknowledges, the trial court excluded cross-examination on the subject of inducement solely on the ground of lack of relevancy, i.e., his relevancy showing was speculative. The record reflects Evidence Code section 352 was never mentioned by the parties or the court and the court did not address, much less make any ruling, under section 352. “Because no ruling was actually made below, ‘no review can be conducted here.’ (People v. Rowland (1992) 4 Cal.4th 238, 259; People v. McPeters (1992) 2 Cal.4th 1148, 1179 [‘the absence of an adverse ruling precludes any appellate challenge’].)” (People v. Samayoa (1997)15 Cal.4th 795, 827.)0
b. Exclusion of Inducement Evidence Nonprejudicial and Harmless
Appellant contends “he is entitled to reversal per se because of the almost certain prejudice that undermined the reliability of his trial’s fact finding process” in the face of the denial of “his fundamental right to due process and to defend himself[.]” Alternatively, he contends reversal of the judgment is also mandated under the constitutional standard of Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) (reversal unless error harmless beyond reasonable doubt). The standard is not reversal per se. We conclude reversal of the judgment is not warranted whether the standard under these circumstances is harmless beyond a reasonable doubt (Chapman) or nonprejudicial under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) (result more favorable to appellant not reasonably probable if no evidentiary error).
In Van Arsdal, supra, 475 U.S. 673, the criminal charge (“drunk on highway”) against the witness in an unrelated matter was dismissed after he agreed to speak about the murder with the prosecutor. The United States Supreme Court found the denial of cross-examination regarding the dismissal violated the Confrontation Clause because such agreement provided the witness with a motive to testify falsely. (Id. at pp. 676, 679.) The Court rejected the position that the violation was reversible per se and concluded denial of a defendant’s opportunity to impeach a witness for bias was subject to the Chapman harmless error analysis. (Id.at pp. 677-678, 684.) In People v. Dyer, supra, 45 Cal.3d 26, our Supreme Court also applied the Chapman standard to a violation of the Confrontation Clause. (Id. at pp. 48-49; see also People v. Rodriguez (1986) 42 Cal.3d 730, 750-751, fn. 2; but see People v. Coffman (2004) 34 Cal.4th 1, 76[“The claim is, in substance, one of erroneous admission of evidence, subject to the [Watson] standard of review for claims of state law error”]; People v. Babbit (1988) 45 Cal.3d 660, 688 [finding underlying claim of error involved exclusion of evidence and applying the Watson nonprejudical standard].)
When cross-examination is improperly restricted, “[w]hether such an error is harmless in a particular case depends upon a host of factors, . . . [i]nclud[ing] the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. [Citations.]” (Van Arsdall, supra, 475 U.S. at p. 684.) “Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them. (Citations.)” (Alford v. United States (1931) 282 U.S. 687, 692.)
We conclude the totality of the circumstances establishes there was no undue restriction on the cross-examination of Harris. First, as discussed above, appellant’s proffered showing of inducement was speculative, and thus, equally speculative is the anticipated testimony of Harris on cross-examination regarding any inducement and the existence of a nexus between any such inducement and his testimony on behalf of the prosecution. Appellant concedes “Harris made statements regarding identification [of appellant] and viewed the photographic lineup prior to the [alleged] inducement[.]”
Moreover, this is not a situation where the witness agreed to testify for the prosecution against a defendant in exchange for favorable treatment in the witness’ own case. Rather, according to appellant’s attorney at the hearing, it was Harris’ own cooperation in this matter that led to dismissal of the charge against Harris in the unrelated matter. The uncontroverted evidence is the prosecutor here did not offer Harris any inducement to testify in this matter. (See People v. Dyer, supra, 45 Cal.3d 26, 48, 50 [no denial of right to confront and cross-examine shown where witnesses “had cooperated prior to their arrest on unrelated charges, and continued to cooperate during the pendency of those charges against them”; ”[n]othing surrounding resolution of the charges would indicate a motive for favoring the prosecution when testifying”; and “the charges against [the witnesses] had been dismissed or reduced before they took the witness stand against defendant”], italics original].)
“In any event, assuming that the challenged evidence in fact did exist and that the trial court (erroneously) excluded it, . . . any error would have been harmless under both the Watson standard and the Chapman standard.” (People v. Robinson (2005) 37 Cal.4th 592, 629; see also, People v. Jablonski (2006) 37 Cal.4th 774, 832 [any possible error “harmless under either Watson or Chapman”].)
Cross-examination of Harris regarding his inability to identify appellant positively before trial was both forceful and compelling, albeit unsuccessful. Harris admitted, “‘I really didn’t get a good look at his face’” and that it was dark on the porch. He also conceded that he told the police, “‘I can’t even be sure it’s him.’” On redirect examination, Harris testified he was able to identify appellant at trial positively, because he was able to see him in person for the first time. On re-cross-examination, Harris admitted he only saw appellant “for like, a second on [his] porch and it was dark[.]” Harris also testified that although he saw appellant going back and forth under the streetlight, appellant’s back was towards him.
Contrary to appellant’s claim, it is not reasonably probable the jury would have reached a different result if evidence were elicited during cross-examination that Harris was induced to identify appellant falsely for his own benefit in view of Harris’ identification inconsistencies already before the jury.
Additionally, the circumstantial evidence against appellant was overwhelming. Appellant admitted he was in the vicinity at the time of the shooting. That no one else was around refuted his claim he was being chased by gang members and dispels an inference that the shooter was someone else. When detained, appellant, who was not told the reason for his detention, spontaneously blurted out, “I didn’t shoot f--king nobody,” which supports an inference of consciousness of guilt. Also, appellant’s DNA profile was a match to the blood recovered from the gun used to shoot the officer.
3. Three $20 Court Security Fees Mandated
In sentencing appellant, the trial court imposed a single $20 court security fee. Appellant acknowledges, as do the People, the court’s failure to impose a $20 court security fee for each of his three convictions constitutes unauthorized sentencing error and an aggregate court security fee in the amount of $60 should have been imposed. We concur.
A $20 court security fee must be imposed for each criminal conviction (§1465.8, subd. (a)(1)), even though the sentence on a conviction is stayed (People v. Crittle (2007) 154 Cal.App.4th 368, 370-371.) The trial court’s failure to impose a mandatory fee results in an unauthorized sentence that may be addressed by the appellate court in the first instance. (See, e.g., People v. Turner (2002) 96 Cal.App.4th 1409, 1413; People v. Terrell (1999) 69 Cal.App.4th 1246, 1255.) We therefore modify appellant’s sentence to reflect the imposition of three $20 court security fees in the total amount of $60.00.
DISPOSITION
The judgment is modified to reflect the total amount of court security fees imposed is $60.00, i.e., $20 for each of appellant’s convictions. In all other respects, the judgment is affirmed. The superior court is directed to prepare an amended abstract of judgment accordingly.
Judge of the Superior Court of Los Angeles County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
RUBIN, J. – Concurring
I concur in the majority’s judgment. I write separately because I take a different route to reach their result.
A witness’s bias, interest, or other motive is relevant in judging that witness’s testimony. (Evid. Code, § 780, subd. (g).) I accept that the prosecutor here did not offer anything to witness Tyrone Harris in return for his testimony against appellant. Indeed, by not communicating directly with Harris about the charges pending against him and by telling Harris’s prosecutor to offer no leniency, the prosecutor here appears to have tried to erect a firewall between Harris’s case and himself.
But focusing solely on the prosecutor’s conduct is too narrow. The issue is Harris’s motives or interests. Harris reached out here to the prosecutor to let him know he had been arrested. Harris’s reason for doing so is murky. He may not have been sufficiently unsophisticated to expect an explicit quid pro quo of dismissal of the charges against him in return for his testimony against appellant, but he may have been thinking about which side his bread was buttered on. A link, at least in his mind, between the prosecutor’s awareness of his case and his testimony against appellant may have formed when his jailers segregated him from the general jail population, seemingly for his safety and, he suspected, at the prosecutor’s behest. (People v. Rodriguez (1986) 42 Cal.3d 730, 750 [“An accused is entitled to explore on cross-examination of a prosecuting witness the inducements from the prosecution that may have motivated testimony.”].)
The court ruled evidence of dismissal of the charges against Harris was irrelevant because Harris had identified appellant before Harris was arrested. But the court’s ruling overlooks that Harris’s evidence against appellant strengthened between his initial identification of appellant after the shooting and his eventual testimony at trial – with his arrest and dismissal of the charges against him lying in between. One reasonable inference from Harris’s increased certainty in identifying appellant was Harris’s gratitude at not facing criminal charges himself. The jury should have been permitted to learn about that possibility in judging Harris’s testimony.
The trial court’s exclusion of evidence of Harris’s arrest would have been on firmer ground if the court had based its ruling on section 352, instead of finding the evidence was irrelevant. Section 352 would arguably have permitted the court to exclude the evidence because the undue consumption of time or the risk of jury confusion might have outweighed its probative value. For example, allowing inquiry into the witness’s arrest and release might have caused the prosecutor to believe he had to testify to dispel any suggestion of impropriety.
I ultimately conclude, however, that the courts’ error was harmless beyond a reasonable doubt. Appellant shot Officer Cross at close range, leaving Cross with no uncertainty about who shot him. Ballistics tied the gun recovered under the house to the shooting. And tests of blood on the gun tied it to appellant. Given such evidence, even if the jury had discounted the certainty of Harris’s identification of appellant at trial and relied instead on his less certain identification at the time of the shooting, the jury’s verdict would not have changed. I thus join with the majority in affirming appellant’s convictions.