Opinion
A091583.
7-17-2003
THE PEOPLE, Plaintiff and Respondent, v. DARRELL HUNTER, Defendant and Appellant.
Darrell Hunter appeals from convictions of murder, burglary, false imprisonment, assault with a deadly weapon, and illegal possession of a firearm, all arising from the murder of Ronnie Small during a party in an apartment in Marin City. Appellant claims a number of trial court errors require reversal of some or all of his convictions. We affirm.
Specifically, appellant claims: (1) The trial court erroneously denied him access to information necessary to support a motion to quash the jury panel; (2) the trial court erroneously allowed the prosecutor to use statements appellant made during plea bargaining as evidence of guilt; (3) the trial court erroneously limited defense counsels argument concerning appellants state of mind when he offered to plead guilty to manslaughter; (4) the trial court erroneously allowed the prosecutor to use unreliable out— of-court identifications of appellant; (5) the trial court erroneously restricted defense counsels cross-examination of a prosecution witness; (6) the trial court erroneously allowed the prosecutor to impeach appellant with certain prior conduct; (7) the prosecution failed to preserve in evidence the couch upon which the victim was sitting at the time of the murder and the trial court erroneously refused to instruct the jury to draw inferences adverse to the prosecution because of this failure; (8) the trial court erred in instructing the jury that appellant could be convicted of first degree felony-murder founded on the felony of burglary or conspiracy to commit burglary; (9) the special circumstance of lying in wait, as defined by CALJIC No. 8.81.15, fails to meet federal constitutional standards; (10) the trial courts jury instructions on reasonable doubt and circumstantial evidence unconstitutionally diluted the standard of proof beyond a reasonable doubt; (11) CALJIC No. 2.90, defining reasonable doubt, violates the federal constitutional right to equal protection of the laws by failing to provide adequate standards for determining whether the prosecution met its burden of proof; (12) the trial court erroneously instructed the jury pursuant to CALJIC No. 17.41.1; and (13) the cumulative effect of errors at trial requires reversal of the convictions.
STATEMENT OF THE CASE
Appellant was charged by information filed on January 20, 1998, with the murder of Ronald Small (Pen. Code, § 187) (count 1), with alleged special circumstances of lying in wait ( § 190.2, subd. (a)(15)) and burglary ( § 190.2, subd. (a)(17)(G). Appellant was also charged with one count of burglary ( § 459) (count 2); one count of false imprisonment (§ 236) (count 3); four counts of assault with a firearm (§ 245, subd. (a)(2)) (counts 4-7); and one count of possession of a firearm by a felon ( § 12021, subd. (a)) (count 8). It was alleged that counts 1, 2 and 4 through 7 were serious felonies within the meaning of section 1192.7, subdivisions (c)(1), (c)(8) and (c)(18), and that appellant personally used a firearm in the commission of counts 1 through 3, causing these offenses to become serious felonies within the meaning of section 1192.7, subdivision (c)(23). It was further alleged that appellant had suffered convictions in 1994 for sale of narcotics and possession of narcotics, for which he served a prison term within the meaning of section 667.5, subdivision (b).
All further statutory references will be to the Penal Code unless otherwise specified.
Charges were originally filed against appellant in July 1997 The preliminary hearing was held in December 1997.
On January 20, 1998, appellant pled not guilty and denied the special allegations. The defense acknowledged having received the district attorneys letter of election not to pursue the death penalty. Appellant subsequently filed a motion to set aside the information, which was denied on May 4, 1998. Also on May 4, count 6 was dismissed by stipulation. Numerous pretrial motions were argued and resolved over the next many months.
Jury selection originally began on August 5, 1998, in Judge Stephens court, but appellants motion to discharge the jury panel due to comments made by one of the prospective jurors was granted on the second day of trial. Trial was subsequently continued on several occasions. By the time jury selection resumed, the case had been assigned to Judge Sutro.
Jury selection began on September 15, 1999. On October 29, appellants motion to quash the jury venire was denied. Trial began on November 2, 1999. The parties concluded presentation of the evidentiary portion of their cases on January 20, 2000. After instructions to the jury and closing arguments, the jury retired to deliberate on January 28. On February 2, the jury returned verdicts finding appellant guilty of all counts and finding all the special allegations true. Appellant filed a motion for a new trial on March 31, which was denied on May 5, 2000.
Appellant was sentenced on May 30, 2000, to a prison term of life without possibility of parole on count 1, to be served consecutively to a total determinate term of 16 years and four months on the other counts.
Appellant filed a timely notice of appeal on May 30, 2000.
STATEMENT OF FACTS
Ronald Small was murdered just after midnight on January 9, 1997, while sitting on a couch at a party in Marin City. Appellant and Joseph Koulibaly were identified as having burst into the party and fired guns; Small was shot with bullets from Koulibalys weapon. Koulibaly has not been arrested. Appellant was arrested for a parole violation and initially told the police he knew nothing about the murder, had not been in Marin City and did not know Koulibaly. He subsequently acknowledged knowing Koulibaly and told the police he would give them the case "on a silver platter" if he was provided immunity or allowed to plead guilty to manslaughter. He testified that he was in Marin City with Koulibaly at the time of the murder but did not enter the apartment and tried to dissuade Koulibaly from going after Small. Appellant is an African-American man, approximately six-feet, five-inches tall. Koulibaly was described by various witnesses as light-skinned, about five-feet, nine or ten inches tall, with weight estimates ranging from 175 to 200 pounds.
Koulibaly, Rodwell Cutkelvin and Iman Kennedy were indicted in November 1998. The prosecutions motion to join their cases to appellants for trial was granted on February 1, 1999. Appellants subsequent motion to sever his case from the other defendants was granted on September 2, 1999.
Frey testified that Cutkelvin was five-foot nine-inches tall, Kennedy five-foot 11— inches.
About a month before the homicide, on December 6, 1996, Shayla Davis saw a group of people approach Ronnie Small in a parking lot (the 200 lot) that was a popular meeting spot. She saw Koulibaly, yelling and "kind of excited," hit Small on his face with something and run away. Kiyana Coleman testified that on the same day she saw Koulibaly with a group of people on the patio of a building, talking "like they were in deep thought," then saw them approach Small in the 200 parking lot, saw Small duck, then run, and saw Koulibaly and the others run back up the hill.
In an interview after the homicide, John Mixon told Detective Ken Frey that Koulibaly had told him he suspected Tiyon Ford and Ronnie Small of having stolen $ 2500 worth of marijuana from the apartment of Koulibalys girlfriend, Diema Adams, and that Koulibaly had confronted Small and hit him in the head with a pistol. Mixon, at trial, denied telling Frey these things or having heard them from Koulibaly.
On the afternoon of January 8, 1997, Esther Williams saw Ronnie Small shoot either at Diema Adamss car, which was moving up the driveway between 49 and 59 Cole Drive, or at a group of people outside 49 Cole Drive, then saw Koulibaly walk to Adamss apartment. Dante Gilbert, at a barbecue at Fords apartment, heard the shots and heard, but did not really believe, that Small had fired them. Raythell Scott also heard the shots, then saw Small and, after a few minutes, saw Koulibaly getting into Adamss car. Mixon told Detective Frey he received a telephone call from Koulibaly, immediately after hearing the gunshots, in which Koulibaly said Small had just shot at him. Koulibaly said, "Its on," and Mixon tried to convince Koulibaly to forget about it. Mixon testified that he did not recall telling Frey about such a phone call.
Marin County Sheriffs Department Sergeant Mark Ross was dispatched to the area of 49 and 59 Cole Drive at about 8:18 p.m. on January 8, in response to a report of gunshots. As he approached the driveway, he saw Koulibaly in a small white car which was backing up and heading down the driveway, driven by a black female.
A number of witnesses identified appellant as having been at 49/59 Cole Drive on the night Small was killed. Frey testified that in an interview on January 29, 1997, Angela Williams, Diema Adamss cousin, told him that about 10:30 p.m. on January 8 she stepped outside to the balcony at Adamss apartment, 49 Cole Drive, number 13, and Koulibaly and a few of his friends brushed by her and went into the apartment. She did not recognize the friends and could describe only one of them, a dark-skinned black male, "well over 6 feet" tall, with low-cut hair and wearing a dark blue puffy jacket. Williams initially told Frey that for a time she was inside the apartment with Koulibaly and his friends, then later stated she had never been in the apartment with them. About 25 minutes before Small was shot, Koulibaly and his friends left Adamss apartment; Williams went back inside. Williams heard the shooting, then ran home, on the way running into Gilbert and his two brothers outside of 49 Cole Drive.
Frey showed Williams a series of photographs in an attempt to identify the tall male who had been with Koulibaly on the night of the murder. Williams said she could not identify anyone in the lineup. Asked if there was anyone that might look like the person, she said that if she had to identify someone she would pick either number 2 or 5, because the person she had seen had very dark skin. Photograph 5 was of appellant.
Williams testified that she did not recall telling Frey the facts he described from the interview and contradicted some of the details of his report. She testified that during her interview the police asked if she had seen a group of people outside, one of whom "stuck out like a sore thumb because he was tall." She said she had seen a tall person on the porch outside apartment 15 but did not recall saying she would pick number 2 or 5 if she had to guess which photograph depicted that person. Williams testified that she did not recall seeing Koulibaly outside on the night of the shooting, but when confronted with her grand jury testimony to the contrary, she recalled giving this testimony.
Frey testified that in an interview on January 31, 1997, Peter Standley stated that he had seen Koulibaly enter Adamss apartment with four other black males 30 to 60 minutes before the homicide. Standley was concerned for Small and went into the party at 59 Cole Drive, apartment 15, to talk to him about it. Standley testified that he did not recall telling Frey the above facts and that he was drunk and hung over when Frey interviewed him. Standley acknowledged that he knew Koulibaly.
Frey interviewed Starvell Lewis, Dante Gilberts brother, at about 10 a.m. on December 9, 1997. Lewis said that during the late evening of December 8, Gilbert had come to tell him and their brother, Moncure Lewis, about a problem he had had with someone in the area of 49 Cole Drive. The three went to that area and Gilbert pointed out appellant, whom Lewis knew. Appellant agreed not to "mess" with Lewiss family, Lewis and appellant hugged, then, as the three brothers began to walk toward the bottom of Cole Drive, gunshots erupted. Moncure Lewis also told Frey that the brothers worked out the problem with appellant, then heard gunshots as they began to walk home.
Gilberts mother testified that Moncure Lewis, Starvell Lewis and Dante Gilbert are related by marriage to appellant. In an interview on July 7, 1999, Moncure Lewis told the police that before the brothers went to meet appellant they planned to tell appellant that Gilbert was in fact appellants cousin.
Starvell Lewis knew appellant and identified him in court. Lewis testified that he heard gunshots while on his way back from checking on the problem Gilbert had had at the party in building 49, but claimed he did not know anyone at the party, did not make contact with anyone and did not remember talking to appellant that night or telling Frey that he had done so.
Dante Gilbert was interviewed by Detective William Hernandez on January 28, 1997. Hernandez testified that Gilbert told him he wanted to provide some information confidentially, because he was fearful for his safety if the information became public, and that Gilbert appeared fearful, sincere and emotional during the interview. Gilbert said he went to Adamss apartment at about 10:30 on the evening of the murder and saw Adams, Angela Williams, Koulibaly and two individuals Gilbert believed were from San Francisco. One was a dark black male with short hair, about six-foot five-inches tall, wearing a dark puffy coat; the other was short and skinny, wearing a flannel shirt. Gilbert heard the people in the apartment talking about "hitting" a party at 59 Cole Drive, number 14, and became concerned for the safety of his friend, Santino Allen. Gilbert had a disagreement with one of Koulibalys friends, left the apartment upset, and went to join Ford and his friends in front of apartment number 9. He then saw Rodwell Cutkelvin, Iman Kennedy, Koulibaly and Koulibalys friends outside Antoinette Griffins apartment, 49 Cole, number 15. The group stopped talking when they saw Gilbert, then began whispering, which Gilbert thought strange because he was friends with Koulibaly. Gilbert became more concerned about Allens safety and went to get his brothers to go to the party at 59 Cole, number 14, and get Allen to leave. As he was walking back, Gilbert saw four individuals in dark clothing in front of 49 Cole, number 9, where a yellow van was parked. They ran to 59 Cole, knocked on the door, and entered quickly; Gilbert heard gunshots and ran into a stairwell.
Hernandez interviewed Gilbert again on January 30 and this time Gilbert was reluctant to talk. He gave a somewhat different account of the interaction at Adamss apartment, stating Koulibaly and his friends stopped talking and walked to the back of the apartment when Gilbert greeted them; when Gilbert subsequently went to the back of the apartment, he and appellant brushed against each other in the hallway, appellant shoved Gilbert and gave him a mean look, and the two exchanged words. Gilbert said he felt the group was going to hit the party but denied having said that he heard them state this intention. Gilbert never stated in either interview that he went to get his brothers because of a shoving incident with appellant. He said that when he was returning with his brothers, he saw the four individuals, including appellant, in front of 49 Cole, number 9, saw one holding what appeared to be a black gun and heard one of them say, "Dont shoot from here. We11 run over there."
After Gilbert said he recognized one of the individuals he had seen by the yellow van, Hernandez showed him a series of six photographs. Gilbert looked for about 15 seconds, then asked how he was to know whether the person was in the photographs, and Hernandez said he might not be. Gilbert immediately picked number 5, appellants picture, and said, "Thats the dude that was inside [Adamss] apartment and brushed me."
Gilberts trial testimony differed from Hernandezs account. Gilbert testified that on the evening of the homicide, before dark, he was at Adamss apartment with Adams, Williams, Koulibaly and two friends of Koulibalys, one of whom he identified as appellant. Gilbert was drunk. He did not recall hearing the others discuss hitting a party at 59 Cole Drive or telling the police he had heard such a discussion; he did not tell the police he was concerned about Santino Allen, did not know Allen was at the party and did not tell the police he wanted to give them information confidentially.
Gilbert testified that, as it was beginning to get dark, he went to get his brothers because of a confrontation he had had with appellant, whom he did not know and did not know his brothers knew. Gilbert then went to the area outside Fords apartment, while his brothers went to the patio outside apartment 15 and talked to appellant; he did not see appellant and Starvell hug each other. His brothers came back and told Gilbert it was all right. About 40 minutes later, Gilbert noticed four people walk toward building 59 from the middle of the parking lot, saw lights flicking off and on in Tara Hendersons apartment, then heard shooting. After the shots stopped, Gilbert saw people running, screaming and crying. Gilbert went to the patio by Hendersons apartment, where he heard that Mitchell and Small had been shot. Inside Hendersons apartment, Gilbert saw bullet holes everywhere and found Small on the back porch.
Pamela Rogers, Tiyon Fords mother, testified that a few hours after the murder Gilbert told her he had been in the apartment when "they" talked about the situation and when they left. She asked why Gilbert hadnt warned "the kids across the street" and he put his head down, started crying and said he could not say anything because "he knew these people," who were "friends of his family." Gilbert said the plan was to "go in there and get Ronnie, Tiyon and One-Footer." Rogers said Gilbert told her Koulibaly was involved in the planning but she could not remember who else he might have named. Gilbert, at trial, denied having made these statements to Rogers.
Lakita Curry testified that on the evening of January 8, 1997, she was drinking with her sister Catherine and some other girls at the apartment of Tetra Mitchell, to celebrate Catherines January 9 birthday. Shortly before midnight, they headed downstairs to a party that was under way at Tara Hendersons apartment. On the way, Lakita ran into a friend, Diedre Griffin, and the two went to Griffins sisters apartment, 49 Cole Drive, number 15, to use the bathroom. As they approached number 15, Lakita saw a group of men, including Koulibaly (whom she knew) and appellant (to whom she had been introduced some weeks before), standing against the wall next to the door. At the time of the grand jury hearing, Lakita identified appellants photograph from a series of six photographs she was shown. She also described him as tall and dark skinned. After Lakita used the bathroom, Shanni Armstead came to the apartment and said that Small had been shot. Lakita did not hear any gunshots.
Where necessary to avoid confusion, Lakita and Catherine Curry will be referred to by their first names. No disrespect is intended.
Ricky Glen Reeves, who was in the custody of the Department of Corrections at the time of trial, testified that on the night of January 8, 1997, he saw a group of people, including Iman Kennedy and Koulibaly, standing outside 49 Cole Drive, "huddled up talking." Koulibaly was wearing a black goose down jacket with black sweat pants, and a "ski mask beanie." The others were wearing dark clothing, except for Kennedy, who was wearing khaki pants, a red tee shirt and white latex gloves. In his grand jury testimony, Reeves stated that all the men except Kennedy were also wearing beanie caps or ski masks. Kennedy came over and told Reeves to let Santino Allen, Reevess nephew, know he was "running with the wrong crowd" and Kennedy did not want to see him hurt. Allen hung out with Small, Tiyon Ford and Raythell Scott.
Reeves saw the group, seven men, cross the parking lot to building 59, go to a certain door and split into two groups, one on either side of the door. One of the men was substantially taller than the others. Koulibaly "beat" on the door and when it opened, the men entered, with the tall man the fourth to enter. Before they entered the apartment, Koulibaly pulled down his ski mask. Someone yelled, "Not him. Not him. Dont shoot Santino. Shoot Ronnie." Reeves heard about 10 gunshots, sounding like they came from two different guns. Reeves did not contact the police because he did not want to be involved. At the time, he had criminal charges pending against him; shortly after the shooting he pleaded guilty to a violation of Health and Safety Code section 11352 and had been in prison since March 1997. He had also suffered a felony conviction for automobile theft in 1985 and a misdemeanor conviction for second degree burglary in 1977.
The actual shooting was described by a number of witnesses who were at the party at Hendersons apartment. Shayla Davis testified that Catherine Curry asked her to play a certain song at the stroke of midnight, when it would be Currys birthday. When the music started, Curry said, "Hey, its my birthday[,]" and started dancing around. The lights went off, then suddenly came on and there was a person Davis had never seen standing in the living room, about 10 feet away from her, waving a gun around with his arm extended. He screamed repeatedly, "Everybody get down. Nobody move." Davis froze; others were running around screaming, trying to get out of the apartment. At some point, the mans face was turned toward Davis and she got a "pretty good" look at him, describing him as tall, with dark skin and a "fade" haircut, wearing a blue jacket. The collar of his jacket concealed part of his face: Davis could see the top of his head and his eyes, but could "not really" see his nose, although subsequent to the event she described his nose as "kind of pointy." His eyes were big, "like bugged," and he appeared excited. Davis described the gun as silver, with a long barrel, and "kind of fat" just before the handle. When the gun was pointed at her, the barrel appeared to have a black hole in the center. Davis testified that the barrel and shape of Exhibit 6A appeared about the same as the gun she had seen on the night of the murder. Although Exhibit 6A was black, where the gun she had seen had was "more shiny" and appeared to be chrome, when counsel moved the gun in different ways, Davis noted it was shiny and changed to an opal color.
Davis described a fade haircut as one where the hair is shaved almost to the top of the head at the top and shaved a little closer around the sides.
Davis also saw a black barrel coming from the divider between the living room and the kitchen, but did not see the hand holding it. A friend pulled her down to the floor and Davis closed her eyes. She heard gunshots and people screaming, reached up to pull Hendersons one-year-old son down under her, and noticed Ronnie Small, who had been sitting on the couch, on the floor, leaning on the couch, with his legs stretched out in front of him and holding his stomach area. As the shots continued, she saw Raythell Scott drag Small by his armpits to the back porch. Some of the gunshots were loud and others softer; one sounded like it was right next to her. One shot sounded distant, like it came from behind the building. Davis heard someone say, "They killed Ronnie." Scott, on the back porch, yelled, "They killed Buff Ron." Small was leaning up against the wall, not moving, with his "eyes rolled up in his head."
Davis spoke with the police after the murder and said she would be able to recognize the first of the shooters she saw in the apartment. She said she heard over 20 rounds fired. Later in the morning, Davis worked with a police artist to produce a sketch of the man she had seen. Davis testified that she told the sketch artist that she had not been able to see the bottom of the mans face, from the nose down, and could not see whether he had a moustache or other facial hair. The sketch, however, depicted the subject as having a moustache.
Also, later on the day of the homicide, Davis was interviewed by a reporter from the Marin Independent Journal. Her photograph was taken and although she specifically asked for it not to be put in the paper, it appeared in an article about the homicide which described Davis as a witness. Concerned for her safely after this article appeared, Davis left town for about a week, to stay with relatives in another part of Northern California.
On January 13, 1997, Davis was shown a photographic lineup and identified appellant as the shooter she had described. She also identified appellant at the preliminary hearing and at trial, although (as will be discussed in detail later) these identifications were somewhat equivocal. Davis testified that she was afraid she would be killed as a result of her testimony.
In July 1997, Detective Frey called Davis and told her not to look at the July 10 Marin Independent Journal, which contained a photograph of appellant. She attempted to comply, but someone at work left the newspaper with the photograph face up on a desk and Davis noticed it when she was straightening papers. She folded it up, put it behind something on the desk without looking at it and asked her coworkers not to leave it out.
Catherine Curry testified that she was dancing at Hendersons apartment when she heard someone say, "Everybody get down." She recalled seeing a black gun, a puffy coat and an "image of a face," then was pulled down by her friends into a pile of people on the kitchen floor. She heard about 20 shots fired. At about 3:38 a.m. on January 9, while Catherine was at Mitchells apartment, Koulibaly called and asked if the police were there. Catherine knew Koulibaly and did not see him in the apartment at the time of the shooting.
Catherine picked appellants photograph from a lineup on January 14, 1997, and at trial identified him as the gunman. She testified that Exhibit 6A was "probably" the gun but she could not positively identify it. At the time of trial she could not independently picture the gunmans face as she saw it the night of the homicide, though she pictured appellants face because he had been arrested for the crime. She recalled that the man was tall but did not recall saying that he was dark skinned or what the top of his head looked like. She did not recall telling the police on the day of the murder that she had seen two men with guns enter the apartment, or that the lights in the apartment went off and on again at midnight. Catherine acknowledged that in 1994 she had stolen some checks from her mother and forged them.
Carmen Yataco Nunez went to Hendersons apartment with Catherine Currys group shortly before midnight. After the lights went out, while Catherines birthday song was playing, there was a loud, abrupt noise of the door being opened and three men entered the apartment, one of whom waved a gun and said, "Everybody hit the floor." Nunez thought the gun was black and the gunman was wearing a beanie. As it moved in her direction, Nunez "dove" into the kitchen. She heard one of the attackers say, "Where is that nigger? Where is Buff Ron?" She heard 11 gunshots. During the shooting, she heard the attackers say something like, "Kill that nigger. Get them bitches." She thought the gunman was wearing a beanie.
At trial, Nunez could not provide a description of the gunman. In testimony before the grand jury, she had described him as "tall, dark-skinned and his nose was, like, pointy, like a slant." She testified that the statements she made to Detective Allen on January 14 were probably her most accurate recollection of the events. In that interview, Nunez had described the gunman as "not so tall" and possibly wearing a red jacket. She also stated that each of the three intruders had a gun, although at the time of trial she did not remember this.
Tetra Mitchell testified that after the lights went out at Hendersons apartment, some men entered, yelling to "get down." Mitchell saw a dark-skinned black man, wearing a black beanie hat, holding a gun "straight out." The man was about her height, five-foot ten-inches, or taller. Shortly after the events, Mitchell told the police that the man was wearing a red and black shirt, but at the time of trial she did not remember if she had seen this. At some point, the man said, "Freeze. Dont move." When she saw the gun, Mitchell got down on the floor in the kitchen, along with three other people. Behind the man with the gun, she saw "male figure shadows." Mitchell acknowledged that after the shooting she told the police that she believed she could identify the man with the gun if she saw him again, but would be reluctant to do so. After the shooting, Luciana Foster commented to Mitchell that she had recognized one of the assailants as Koulibaly.
Mitchell was injured during the shooting and later received treatment at Kaiser Hospital. She was interviewed by the police there, but did not want to tell them much because she was scared of retaliation. She did not recall telling the police that she heard the second suspect fire a gun near the first one but acknowledged that she might have said she heard three or more guns fired during the attack.
After being treated at the hospital, at about 3:38 a.m., Mitchell received a telephone call at her apartment, but no one spoke when she answered. A minute or so later, Koulibaly called and spoke with Curry, who said he had asked if the police were behind the building.
Mitchell testified that before the shooting she saw Small sitting on a stool near the window. During the shooting, in a quick glance, she saw Small reach toward the waistband of his pants, as though for a gun, but did not see anything in his hands. In an interview on January 12, 1997, Mitchell told the police that she had seen Small with a gun but he had been unable to shoot because he had been shot first.
Mitchell was shown a photographic lineup on January 16, 1997, and picked a photograph that was not appellants. She subsequently talked to Curry, who had picked a photograph with a different number, and Mitchell believed that she, Mitchell, had picked the wrong one. Asked at trial to identify the photograph of the gunman, she picked appellants photograph, explaining that she did so because "hes dark and its a hard look on his face." She identified appellant in court as the gunman. Mitchell testified that she had not been able to identify appellant at the preliminary hearing because she "didnt know him" and "didnt know who he was," but recognized him at trial because "I know who he is now," acknowledging that her identification was based upon information other than her personal recollection of the night of the homicide. Mitchell had talked with Curry several times about the shooting, and had talked to other people who had been at the party about what each had seen and heard. She had seen photographs of appellant in the newspaper.
Catherine Curry testified that she had told Mitchell that she (Curry) had been told she (Curry) had picked the right photograph. Detective Allen testified that she did not have appellants photograph in the same position in the photographic lineups she presented to each of the witnesses, so that witnesses could not communicate to each other which number to pick.
Appellants photograph was published in the Marin Independent Journal 13 times, the first on July 10, 1997. Stories about the shooting were published in the Marin Independent Journal and San Francisco Chronicle, including statements from the police that the police sought the communitys help in solving the Small case, that people in the community knew what had happened and the motive behind it, that the shooting might have stemmed from a dispute over drugs or money, that the perpetrators were from out of town but known in the community, that the police knew who the "main shooter" was and that there had been threats in the community to keep people from talking. After appellant was arrested, it was reported that the person the police suspected was in custody but had not been charged in the homicide because the police were seeking other witnesses, that the suspect was being held on a parole violation somewhere other than Marin County Jail, the suspect had an extensive criminal history and had been released from prison on parole in late 1996 and that another suspect was a Marin County resident believed to be in hiding.
Around midnight on January 9, 1997, Kenneth Wayne Price was sitting on the couch in Hendersons living room, next to Small, with Santino Allen on the other side of Small. The lights went off and on, as people were dancing, and after the second time they went off, Price heard someone say, "Freeze, nobody move." The lights came on and Price saw a gun "in [his] face," some three or four inches from his forehead. He testified that Exhibit 6A was "very consistent" with the gun that was pointed at him. Price put his head down, not wanting to move so he would not get shot. Of the person holding the gun, he saw a red hat on backwards, a black face and a black jacket, and a hand that looked like a mans, with dark skin. With his peripheral vision, Price saw the lower portion of a person running from the doorway toward the couch: He saw a black jacket or dark blue puffy parka jacket, blue jeans, and white tennis shoes. The person jumped on top of Small and Price heard gunshots. Price saw the gun moving from him toward Small, got up and ran for the back door, but tripped and fell on the balcony. He heard Raythell Scott saying, "Dont get up. Dont get up. Theyre shooting from the back." Small stumbled out from the living room and fell on top of Price. Price never saw Small with a weapon that night.
Kiyana Coleman testified that after Catherine Curry and her friends arrived at Hendersons apartment, while the music was playing, she saw Small sitting on the couch. She heard the front door slam into the wall and a loud voice, then heard people screaming and saw people run past her into the kitchen. She saw a black revolver, a dark brown arm and a red and blue jacket, but her view of the person holding the gun was obstructed by the room divider. She could tell the person was tall because the gun was held high. Exhibit 6A looked like the gun she saw, but she was not sure whether the barrel was the same length.
Coleman crouched on the floor and heard four gunshots, followed by a number of other shots that sounded different; she heard at least three different sounds of gunshots. When the shooting stopped, the apartment got very quiet. Coleman heard Luciana Foster yell, "I seen JoJo [Koulibaly]. I seen JoJo." Coleman went outside but did not see anyone, then went to the back porch of the apartment and saw Small lying on the ground, with his shirt pulled up and pointing at his stomach. She heard Santino say, "My nigger got shot." When Coleman left the apartment, she saw Koulibalys mothers car parked behind Diema Adamss car in Adamss regular parking spot. Coleman went to the hospital and when she returned noticed the car was gone.
Coleman testified that she met a person named Darrell Hunter in mid— December 1996 whom she described as about six-foot five-inches tall, with short hair and wearing a red and blue jacket and blue jeans. She did not think she saw the person she knew as Darrell Hunter in court at trial but identified a photograph of appellant as that person.
Raythell Scott testified that around midnight on January 9, 1997, he was dancing at Hendersons apartment while Ronnie Small and Santino Allen were sitting on the couch. The lights went off and when they came on again, Scott saw a "gentleman walk in with a big gun." The man pointed the gun, waving it around the room, and told everyone, "Dont fucking move. Everybody get down." The man had dark skin and a short, "faded up" haircut, and was wearing a dark blue or black puffy jacket that "kind of covered his mouth and short of his nose." Scott described the mans eyes as "real big and wide like he was . . . high off something." He estimated that the man was about six-foot three-inches to six-foot five-inches tall and weighed about 250 pounds. After the shooting, when Detective Frey showed Scott the composite sketch of the suspect that had been prepared, Scott said that the person whose description was used for the sketch "must have seen the person with the same eyes I did."
The man pointed his gun at Scotts face for about seven seconds, then looked back toward the door "like he didnt know what to do," and another man came from behind him. This man, who was wearing a hooded sweatshirt covering his head, was much smaller than the first one and had a lighter complexion. He was holding a Glock pistol which looked identical to that depicted in Exhibit 25. He "put his arm under the first guy, and was, like, pointing the gun, like, towards Ronnie Small like thats who were going for right there." Scott looked toward Small because "all the attention was focused on Ronnie . . . ." One of the intruders was telling everyone to "get down" and not to move. Scott saw Small make a gesture like he was reaching for something, then gunshots erupted. Scott saw flashes from a big revolver, not many from the Glock. He described the revolver as "a big Dirty Harry," almost but not quite black, and testified Exhibit 6A was "real consistent" with the gun he saw. The tall man was standing almost directly in front of Small and fired three shots toward Small. Small, who had slipped off the couch, pulled a .45-caliber gun from his waist and fired about three shots. Small had shown Scott the weapon he was carrying earlier in the day. Allen helped Small get up and Small "chased the two guys that came out of the apartment. And he was pointing the gun at him, squeezing; trying to shoot, I guess." Scott ran to the balcony, looking for Small, and realized someone was firing toward the balcony; he saw three or four muzzle flashes behind the apartment. Small was pacing with the gun in his hand. Scott yelled at Small to get down. Scott did not remember telling the police that he had dragged Small onto the balcony.
Scott testified that the voice of the man with the hood did not sound familiar to him and denied having told the police the voice sounded like Koulibalys. He acknowledged having said that the person was "built like" and had the same skin color as Koulibaly.
Detective Frey showed Scott a photo lineup and testified that Scott positively identified appellant as the person who shot Small but refused to sign the form indicating his identification because he did not want to be involved. Scott disputed Freys account and testified that Frey tried to get him to identify appellants photograph. Scott also denied having told police officers that he would not testify at the preliminary hearing. At the preliminary hearing, Scott testified that he had not made an identification from the photographic lineup.
The day before Scott was scheduled to testify at the preliminary hearing, he was assaulted by Rodwell Cutkelvin, who threatened him and chased him with a knife. Two witnesses observed this incident, which resulted in Cutkelvin being taken into custody and found in possession of a folding knife. After this incident, Scott told his girlfriend that she and their baby should leave their home, but they refused; he asked Detective Frey to arrange for him to stay in a motel because he was afraid for his familys safety. Scott testified that he was put up in a hotel on one occasion, but when he asked for a hotel again after his testimony, Frey told him he could not help because Scott was not telling the truth and was not saying "what we want to hear."
At trial, Scott testified that he could not say he saw any of the attackers in the courtroom but that appellants eyes "seem like same eyes that I seen the first shooter."
Tiare Berkeley was at the party when Small was shot. He saw a chrome revolver sticking out from the divider between the kitchen and the living room, extending from the entryway into the living room. A mans voice from the entrance said, "Get down." Berkeley ran through the kitchen to the entryway, glancing back into the living room when he reached the passage between the kitchen and the entryway. He saw a person he had never seen before, dressed in black and wearing a beanie. Berkeley described the person as African-American, shorter than Berkeleys own six-foot one-inch frame, and stockier than Berkeley, with neck— length braids. Berkeley heard one gunshot, and people screaming. As he turned toward the door, Berkeley saw a light-skinned African-American, about five-foot nine-inches tall and stocky, with nothing on his head. Berkeley grabbed the person and pushed him to the side, then Berkeley was hit twice in the head with what felt like a metal object, and lost consciousness. Berkeley testified at the preliminary hearing that he had never seen appellant before. He knew and socialized with Koulibaly. At the time of trial, Berkeley was on probation for a felony robbery conviction.
Deputy Sheriff Richard Johnson testified that he found a small . 25-caliber semiautomatic weapon behind the building where the shooting occurred, directly below the balcony of apartment 14, a .357 revolver with a wooden handle behind the building, on the hillside straight behind apartment 14, and a shotgun in front of a vehicle parked outside 59 Cole Drive. Exhibit 6A appeared to be the .357 revolver he found. A latent partial palm print found on Exhibit 6A did not match appellants.
Examination of 10 of the shell casings found in the apartment indicated that they were .40-caliber and had been fired by the same weapon, which was most likely a Glock semiautomatic pistol. Two .40-caliber bullets recovered during Smalls autopsy, and one bullet found in Smalls coat, were consistent with having been fired from a Glock weapon. Gunpowder residue on Smalls jacket was "flattened ball gunpowder" which would be found in the type of .40-caliber ammunition found in the apartment. The distribution of gunpowder on the jacket indicated some of the shots had been fired from as little as several inches away. Gunpowder on the couch where Small was sitting was of the same type and indicated shots had been fired from less than a foot away.
One .357-caliber bullet fragment found in the apartment (Exh. 83, SK-63), which was determined to have been fired by the . 357 revolver discovered on the hillside, had a small fragment of wood adhering to it, and the evidence canister in which it was stored contained another small wood fragment. A wood recognition expert testified that the fragments were soft wood, with a 70 percent likelihood the wood was pine. The loose piece of wood appeared to have fragments of lead on it, leading the criminalist who examined it, John Douglas Yount, to believe the wood had been adhering to the bullet and had become dislodged after packaging of the bullet. Yount concluded the bullet had passed through wood. Although he had not been able to examine the couch on which Small had been sitting, he testified that he would have expected to see more extensive damage to the bullet if it had perforated the wooden knob on the arm of the couch. There was also a small fragment of blue material on the bullet. The fibers of this fabric did not match either those of Smalls jacket or those of the couch on which Small was sitting.
Detective Steve Nash testified that the wooden knob on the arm of the couch on which Small had been sitting had holes indicating it had been perforated by a bullet. He was unable to establish a trajectory through the wood, which he testified was soft pine, because the soft wood "closed back up." Pieces of wood were removed from the knob as part of the investigation for evidence, but no remnants of bullets were found in the wood. These pieces of wood were not collected as evidence, nor was the couch.
Investigators determined that a bullet which was found in the master bedroom had been fired from the couch in the living room. A total of six .45-caliber casings were found in the apartment.
Appellant was arrested on January 14, 1997, in San Francisco, on a hold from an "outside agency" (not Marin County). The arresting officer testified that he did not tell appellant he was a suspect in a homicide case and did not mention Marin County.
Marin County Sheriffs Office Detectives Richard Keaton and Ken Frey interviewed appellant at a police station in San Francisco that afternoon. They told appellant they were conducting a felony investigation regarding an incident that had occurred in Marin City but did not say it was a homicide. Appellant appeared very agitated. He was informed of and waived his Miranda rights, denied having been present and said he had been at home taking care of his brother at the time of the incident; he had heard the day before that there had been a shooting, when he heard "two white dudes" talking about it while reading a newspaper on a bus. Appellant said he had not been to Marin City in "a couple of months," did not go there often and knew "some dudes" in Marin City, but the only one he knew by name was nicknamed "Rock." On the night of the shooting he had been at home or in his neighborhood, according to his normal routine.
Miranda v. Arizona (1966) 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.
At this point, Frey told appellant he was considered a suspect in the case and appellant became more agitated and upset. Appellant asked who had named him, said the officers should "concentrate [their] effort on the other side of the water," and said he would never do anything like this in Marin County.
Appellant was interviewed by Frey and Marin County Detective William Hernandez on January 23, 1997, in an Alameda County jail. Appellant waived his Miranda rights and said he had nothing to add to the previous interview: He said he had not been involved, had not been in Marin County for over two years and did not know anyone in Marin County besides Rock. Hernandez showed appellant 12 photographs or photocopies of photographs, including one of Koulibaly, and appellant said that, Im positive I dont know any of these dudes. I dont go to Marin County." Hernandez showed appellant a search warrant for drawing a blood sample and appellant stated, apparently in response to the description of him in the warrant, "Im six-foot-five, 230 pounds."
The other photographs were of Iman Kennedy, Kevin Thibodeaux, Coleman Davidson, Gregory Coleman, Rodwell Cutkelvin, John Mixon, David Harris, Claubino Graham, Jonathan Page, Rene Williams, and Dante Gilbert. Hernandez acknowledged that some of the photocopies were not of good quality.
On February 10, 1997, Frey and Nash met with appellant at the Alameda County jail, after appellant called to say he wanted to speak with Nash. Appellant had received a document stating that he knew Koulibaly and wanted to talk about this. Appellant again waived his Miranda rights. He said he had known Koulibaly since freshman year at San Rafael High School. He had spent the night at Koulibalys apartment in Marin City on December 14, 1996, the day appellant was released from custody, and gone to a Warriors game with Koulibaly, his girlfriend and another girl on December 27. On December 14, appellant had seen three guns in Koulibalys apartment, one similar to but larger than a 9-millimeter, one a long-barreled black .357 revolver with a wood handle and one a .380 automatic. Appellant told the officers that the .357 was a "big ass" gun and that when he picked it up he told Koulibaly, "Damn, you could blow a guys head off with this." The gun was loaded. Appellant said that he contacted Koulibaly by calling his pager, the number of which appellant knew from memory. Appellant admitted having lied when he denied knowing Koulibaly and admitted that he knew some of the other people whose photographs the police had shown him.
These were Iman Kennedy and David Harris, whom he called Johnny Red Page and referred to as his "play cousin."
In this interview, appellant said that on the night of the shooting he had been at home with his mother, brothers and two friends of his sister. He had not tried to contact Koulibaly that day and had not spoken to him since the Warriors game. Appellant denied having a blue jacket with a red collar, even when Nash told him he had a picture of appellant taken on December 16 wearing such a jacket.
The detectives told appellant they did not believe him and had evidence that he was at the murder scene and knew Koulibaly. Appellant said, "Do you think I killed him? Because thats wrong." Nash then said he believed Koulibaly had directed the murder and appellant said, "Well, were in the right direction." Appellant asked why his blood had been taken and Nash told him they had to think about what evidence they might have against him.
At this point, appellant said he could give them "the entire case on a silver platter," but wanted a deal in writing for immunity or a plea to manslaughter; he said what was most important to him was getting out in time to see his mother alive. The officers told appellant they had no authority to make a deal and asked for some information to give their supervisors an indication of what appellant knew. Appellant said Koulibaly would have used the larger-than-.9-millimeter gun and that before the homicide appellant had seen Koulibaly in a dark blue puffy jacket with the words "First Down" on the left chest. The officers said they would take the information to their supervisors and the district attorneys office, but reiterated that they did not have the authority to make any promises.
The next day, February 11, 1997, appellant called Nash and, in a tape recorded conversation, again stated that he would provide full information about the homicide in exchange for immunity or a plea to no more than manslaughter. On February 12, Frey and Nash returned to speak with appellant and, at the request of the district attorneys office, provided him with a written form for waiver of his Miranda rights. Appellant refused to sign the form, but said he did not want to retract anything he had said previously and orally waived his rights. Nash told appellant that the district attorneys office needed more information to determine the depth of his knowledge before any deal could be considered. Appellant refused to give any more information without a deal being made in writing.
Defense
Appellant testified that he went to live with his mother at 1771 Ellis Street in San Francisco on December 14, 1996, after serving a prison sentence for three felony convictions of possession and sale of narcotics. Appellant had lived most of his life in San Francisco but had spent one year in Marin County, living with his cousins, Fred and Mary Harris, and attending San Rafael High School. Joseph Koulibaly sometimes stayed at the Harriss house, and he and appellant became friends. Appellant did not know Ronnie Small.
On the night of December 14, 1996, Koulibaly came to appellants house and they went to some clubs and to Marin City in Koulibalys champagne-colored Camry. Appellant talked with a number of people outside buildings 49 and 59 Cole Drive, including Lakita Curry.
After his release from prison, appellant talked with Koulibaly "a lot," reaching Koulibaly by calling his pager or his house. Later in December, appellant spent the weekend with Koulibaly, at Koulibalys mothers house in Terra Linda. Koulibaly showed appellant several guns he kept in the closet of his room, two semiautomatic weapons and a .357 revolver. He also showed appellant some jackets, including a blue First Down puffy ski jacket. Koulibaly, who was a drug dealer, told appellant that someone had stolen something from him and that he had pistol whipped the person about a week before appellants release.
On January 8, 1997, appellant tried to reach Koulibaly by paging him and calling his house, and finally talked to him at about 10:40 p.m. Koulibaly came to appellants house about 10 minutes later, alone, and told appellant someone had shot at him earlier in the day. He said he was going back to Marin City and appellant and his friend, Joe Walls, decided to accompany him. Appellant had no idea at this point that Koulibaly was planning to get back at the person who shot at him and testified he would not have gone with Koulibaly if he had known. Appellant put on a green pullover and Walls asked to wear a jacket that was on appellants arm chair; Koulibaly was wearing jeans and a First Down jacket.
Koulibaly drove to Marin City and stopped his car in the parking lot of the recreation center. He used a pay phone to call Diema and a short time later she arrived in a small white car and gave Koulibaly a gun. Appellant asked why Koulibaly needed the gun and Koulibaly said something like "just in case." Appellant assumed Koulibaly was scared. Koulibaly drove to 49/59 Cole Drive, parked behind Diemas car and they went to Diemas apartment. Koulibaly, holding the gun, answered a knock on the door and let in three men, none of whom appellant knew. Iman Kennedy introduced himself and appellant subsequently learned that the other two were Rodwell Cutkelvin and "Popeye" Coleman. Kennedy was wearing a red top, beige pants and latex gloves; the others wore dark clothes. Kennedy told Koulibaly, "I think he came back" and "I think he over there." Kennedy made a phone call and then listed some names and said they were "over there." Appellant saw "how this thing is going" and told Koulibaly to "talk to the dude . . . and squash the shit." Koulibaly refused. Dante Gilbert came into the apartment, drunk, and slapped appellant "on the ass," then left when appellant said, "Man, what the fuck is wrong with you, man?" Appellant pulled Koulibaly into the hall and told him, "Joe, man, everybody know dude shot at you, man. If you do anything to the dude, everybody gonna know who did it." Koulibaly did not respond. There was some more conversation in the apartment, then Koulibaly "settled down a bit."
The group went outside to a porch area a few apartments down. Kennedy, Cutkelvin and a few others went into an apartment there and appellant stayed outside. Dante Gilbert and his brothers came up to appellant; they discussed the incident with Gilbert, then walked downstairs to the patio area where the other men had gone. Appellant heard someone say, "There they go. There they go." A car came up the hill and appellant saw Koulibaly run to a yellow van parked nearby, cock his gun and take aim. Appellant stopped Koulibaly from shooting and told him to "fight the dude" if he was so angry. Koulibaly said, in a "real, like emotional, mad-type way," "He shot at me. What am I supposed-."
Walls suggested to Koulibaly that they "go over there." Lewis and his brothers left. Appellant saw Koulibaly, Walls, Cutkelvin, Coleman and Kennedy walk across the parking lot; they stopped in the middle and Coleman walked off in a different direction, "as if the thing fizzled." Thinking the group had abandoned any plan for violence, appellant started to walk toward them, but as he got close they "trotted off" to building 59. Appellant saw them go up the stairs and saw Cutkelvin hand Walls what appellant believed was a gun. The four men entered an apartment in building 59 and appellant heard shooting. Appellant started to run down the hill, then ran behind the building, looking for cover, and heard more shooting in the back. He kept running and, after the gunfire stopped, saw Kennedy walking quickly toward the next building over. Kennedy said, "Come on," and the two ran down the hill. After unsuccessfully knocking on the door of Dwayne Smiths apartment, Kennedy yelled to the driver of a car going by, who drove them to the home of appellants cousin, Fred Harris, Jr., on the other side of Marin City. Kennedy paged Koulibaly, who called back. Appellant slept at his cousins house; Kennedy left about 3:30 a.m. In the morning, appellants cousin drove him to San Francisco. Appellant called Koulibaly and when he asked what had happened Koulibaly said, "He reached for his gun." Appellant had not talked to Koulibaly since. The parties stipulated that on January 9, 1997, five calls were placed from Koulibalys cell phone to the home of Fred Harris, Jr., at 1:16 a.m., 1:26 a.m., 2:25 a.m., 3:42 a.m. and 7:34 a.m.
Appellant testified that his only role the night of the shooting was "trying to stop something from happening when I seen it happening, thats all." He described Koulibaly as a "loose cannon" who "turned into a instant killer" and whom appellant tried his best to control.
Appellant admitted that he did not tell the truth when he spoke to the police on January 14 and 23, 1997. He then saw some parole papers which stated that he had killed the man in Marin City and was told by a friend that a detective had told her the same thing. Appellant decided to tell he police he knew Koulibaly and, against his mothers advice, left a message for Nash. On February 10, appellant told Detectives Nash and Frey that he knew Koulibaly but maintained that he was not in Marin City at the time of the shooting. He also denied owning a blue jacket with a red collar, despite being told the police had a photograph of appellant wearing such a jacket, because he wanted to protect Joe Walls. Detective Nash told appellant that people in Marin City said he had killed Small and were ready to come forward. Frey told appellant he thought Koulibaly did it, but appellant was the only person the Marin City witnesses were willing to "come forward on." Appellant denied killing or even knowing Small, and said he would go to trial. Nash told him the district attorney was going to go for the death penalty and a trial would be in front of an all-white jury; asked if appellant wanted to see his mother alive; and told appellant all the evidence pointed to him, as if "if I tell them what I know, it wouldnt be on me no more." Appellant said he wanted "something in writing" from the district attorney before he would say anything. Frey asked if appellant meant immunity and explained what that meant; Nash asked if appellant would be willing to plead to manslaughter. Appellant said he could give them the case "on a silver platter" but only after he saw "something in writing." Appellant testified that he was trying to make a deal with the police because he "didnt want to die." At a subsequent interview on February 12 appellant reiterated that he would talk to the police only after receiving "something in writing." Nash said he would talk to the district attorney and get back to appellant, but that was appellants last interview with the police.
Appellant admitted that he told a friend, Roshawn Epson, to say at his parole revocation hearing that he had been at home on the night of the murder, knowing that this was false. He told his family he had nothing to do with the shooting and asked them to say he was at home, knowing this was a lie. Appellant also lied under oath at that hearing, denying he was in Marin City on the night of the shooting. After the parole hearing, when appellant was eventually transferred to Marin County, it was his understanding that the death penalty was being sought against him.
Appellant acknowledged that between the night of the shooting and his arrest on January 14, 1997, he had shaved off his facial hair, but denied this had anything to do with the shooting. He began wearing eyeglasses about eight months before trial. He testified that he was about six-foot four or six-foot five-inches tall. He was the tallest of the men in Adamss apartment before the shooting, though Walls was almost as tall at about six-foot one-inch. Shown a photograph of himself standing next to a measure showing a height of six-feet, six-inches, appellant testified that the measurement might not be accurate.
Roshawn Epson testified that after appellant was arrested he told her he had told police that she had come to his home and invited him to the movies on the evening of the shooting. At appellants request, she so testified at a hearing on February 21, 1997, at the Santa Rita jail. At trial, she acknowledged that this testimony was false, that she had never come by to invite appellant to the movies, and that appellant had asked her to lie.
Maria Hunter, appellants sister, testified that Koulibaly was a friend of appellants. She recalled Koulibaly coming to her mothers house while appellant was staying there, before appellants arrest, although her testimony was inconsistent as to who was with Koulibaly and whether he had been at the house once or twice. Hunter recalled Koulibaly calling the house for appellant. She recalled testifying at appellants parole revocation hearing that appellant had been at their mothers home in the early-morning hours of January 9, 1997, and reiterated this testimony at trial.
A 911 call was received at about one minute after midnight on January 9, 1997, from a woman at 49 Cole Drive, apartment 9, who reported that a man named JoJo, who lived upstairs, was shooting a gun in the area of 59 Cole Drive. The neighbor who lived below Hendersons apartment heard screams and gunfire coming from upstairs, then found a friend at this patio door, very scared, asking to come in because "JoJo and them up there shooting." Frey testified that Raythell Scotts sister reported Scott having said that JoJo Koulibaly was one of the people who had shot Small. Scotts sister denied having told Frey this.
Daniel Fost, a reporter who covered the story of the shooting for the Marin Independent Journal, testified that his description in one article of Shayla Davis telling him that she had seen Small reach for a gun at the time of the shooting was based on statements made to him by Davis.
Fost testified that these were not Daviss precise words and declined, on the basis of the reporters shield law, to answer questions about what her words were and whether Davis said she had seen Small in possession of a gun.
Rebuttal
San Francisco Police Officer Kevin Cleary testified about an incident on April 12, 1994, in which appellant ran from the police, hit and kicked Cleary and another officer, and threatened to kill the officers.
The parties stipulated that on October 27, 1994, appellant was convicted of a misdemeanor violation of section 243, subdivision (c), using force and violence upon a peace officer, based on an August 1, 1994, incident. The parties also stipulated that at the outset of his parole revocation hearing, appellant was sworn to tell the truth and spoke at that hearing under penalty of perjury.
Detective Frey testified that there was no mention of the death penalty during the interview he and Nash had with appellant on February 10, by the officers or by appellant. Neither Frey nor Nash made any threats toward appellant or mentioned appellants mother, although appellant brought up his mother. The words "immunity" and "manslaughter" were first raised by appellant.
DISCUSSION
I.
Appellant contends the superior court erred in denying his motion to quash the jury panel on the ground that African-Americans were unconstitutionally underrepresented.
Prior to trial, first informally and then by motion, appellant sought to obtain information from the county concerning jury composition, including information about the countys procedures for summoning jurors and allowing excuses from or deferrals of jury service. On June 5, 1998, the trial court ordered the Executive Officer for the Marin County Courts to provide the parties with the following information: "1. Whether the County is using source lists beyond those mandated by the Code of Civil Procedure. (CCP 197 (b)); [P] 2. A description (provided either orally, in writing, or both) of the manner in which the venire and then the panel lists are drawn in the Jury Commissioners Office, or by the Jury Commissioners staff; [P] 3. The internal rules governing the manner in which Court and County staff give prospective jurors either calling in, or dropping in, deferrals and excusals as provided in the Code of Civil Procedure."
On August 5, 1998, during the initial jury selection for this case, appellant filed a motion to quash the jury panel on the ground that his jury would not be drawn from a representative cross-section of the relevant community. Appellants attorney declared that he had reviewed transcripts and records in a 1994 capital case litigated in the Marin Superior Court which involved a jury composition challenge, conferred with the attorneys in that case, gathered anecdotal evidence of underrepresentation of African-Americans on jury panels in the county, and learned from the Marin County Court Executive Officer that in September 1998 or soon thereafter, Marin County would be implementing new jury selection procedures expected to have "a reasonable probability of increasing the representativeness of the jury pools." Appellant stated that according to the 1990 census, the majority of the Marin County population was Caucasian, with Hispanics or Spanish surnames constituting approximately 7.4 percent of the population, African-Americans 3.5 percent, and Asian groups 4.0 percent.
During jury selection, when defense counsel stated his intention to challenge the panel, he conceded that there was no ongoing research regarding the composition of the current panel; that the court might well find there was insufficient evidence to make a prima facie case; and that in the alternative appellant would ask the court to use its own "supervisorial discretion" to order another panel to ensure greater representativeness. The jury panel was excused for an unrelated reason before the trial court ruled on appellants motion.
On October 13, 1999, during the next jury selection, defense counsel asserted that, based on his own observations, there was a significant underrepresentation of African-Americans on the current panel and 12 other panels that had been brought to court. The prosecution argued there was no record of the racial composition of the jury panel and the prospective jurors racial or ethnic backgrounds could not be determined just by looking. Defense counsel noted that there was "no courthouse survey undertaken by the defense in this case," stating that the previous judge had refused to allow "an invasion of the jury commissioners office" and that when the death demand was dropped, the defense decided not to devote itself to the jury issue. Defense counsel stated that his own "very informal" view of the panels revealed a total of 11 African-Americans out of more than 1,000 people on the 14 panels brought for jury selection, and moved to quash the current panel. In written opposition, the prosecution stated that appellant had failed to make a prima facie case because he had presented no evidence of disparity or systematic exclusion, and had not addressed the countys venire selection procedures. The prosecution explained that since May 1999, Marin County has selected prospective jurors at random from a pool compiled from Department of Motor Vehicles lists of licensed drivers and persons issued identification cards and a list of registered voters, with the lists from these sources input twice a year. The system utilized in Marin was said to be the same as that approved for Orange County in People v. Ramos (1997) 15 Cal.4th 1133, 1152-1157, 938 P.2d 950.
When the motion was heard, the defense acknowledged that it had "developed little of the type of evidence that is often submitted in jury composition litigation where the defense has been able to conduct surveys inside the jury commissioners facilities in order to survey exactly who it is that makes it onto juries in a given county," as the court administrator and previous trial judge had not permitted such a survey. Counsel cited the same population statistics referenced in the August 1998 motion-3.5 percent African-American-and noted that 11 of the 1,070 prospective jurors in the present case were African-American, four of these "went through some portion of the questioning process" and none were left in the jury box.
The court concluded appellant had not sufficiently shown a "specific form of discrimination thats resulted in the exclusion of a legally recognizable group from jury service." The court noted that much of appellants evidence was anecdotal and there was no evidence the countys selection procedures were anything but random.
A criminal defendant has a right, under both federal and state constitutions, to a jury "selected from a fair cross section of the community." (Duren v. Missouri (1979) 439 U.S. 357, 358-359, 58 L. Ed. 2d 579, 99 S. Ct. 664 (Duren); People v. Ramos, supra, 15 Cal.4th 1133, 1154.) ""In order to establish a prima facie violation of the fair cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a distinctive group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process." (People v. Howard (1992) 1 Cal.4th 1132, 1159, 824 P.2d 1315 . . ., quoting Duren, supra, 439 U.S. at p. 364 . . . .)" (People v. Ochoa (2001) 26 Cal.4th 398, 426; People v. Massie (1998) 19 Cal.4th 550, 580, 967 P.2d 29.)
"A defendant cannot establish a prima facie case of systematic exclusion of a distinctive group merely by presenting statistical evidence that the group is underrepresented in the jury pool, venire, or panel. Rather, the defendant must show that the underrepresentation is the result of an improper feature of the jury selection process. (People v. Howard, supra, 1 Cal.4th at p. 1160, . . .; see also People v. Bell [(1989)] 49 Cal.3d [502], 528-529 . . . .)" (People v. Massie, supra, 19 Cal.4th 550, 580.) "When a countys jury selection criteria are neutral with respect to race, ethnicity, sex, and religion, . . . the defendant must identify some aspect of the manner in which those criteria are being applied that is: (1) the probable cause of the disparity; and (2) constitutionally impermissible." (People v. Bell, supra, 49 Cal.3d 502, 524.)
Recognizing that he has not presented evidence to satisfy the third prong of Duren-systematic exclusion-appellant maintains he was prevented from obtaining such evidence by the trial courts refusal to grant him access to information he needed. A defendant who seeks access to information necessary to make a prima facie case of underrepresentation "is obviously not required to justify that request by making a prima facie case of underrepresentation. Rather, upon a particularized showing supporting a reasonable belief that underrepresentation in the jury pool or the venire exists as the result of practices of systematic exclusion, the court must make a reasonable effort to accommodate the defendants relevant requests for information designed to verify the existence of such underrepresentation and document its nature and extent." (People v. Jackson (1996) 13 Cal.4th 1164, 1194, 920 P.2d 1254.)
In his opening brief appellant states that he was denied access to "most of the information crucial to his claim (e.g., surveys inside the jury commissioners office to survey exactly who it is that makes it onto juries)" and argues that his "motion for discovery of Marin Countys jury selection information should have been granted in full." In his reply brief, appellant complains that the trial courts order of June 5, 1998, allowed him discovery regarding the "theoretical basis" for the countys selection of jury panels (source lists, manner of generating panel lists, internal rules for granting deferrals or excuses) but failed to allow "inquiry into the jury commissioners records to examine the practical reality of the actual jury panels that appeared at the courthouse . . . ." Appellant asserts that to support his challenge he would have needed to investigate such matters as the numbers of African-Americans on the jury rolls, actually summoned as jurors and actually placed on jury panels, and whether the percentage of African-Americans in each of these categories was proportional to their percentage in the jury-eligible population. In the event of a discrepancy, appellant explains he would have needed to investigate its causes, for example, by examining "the data" to determine whether disproportionately more African-Americans were deferred or excused from service.
The problem with appellants argument is that he does not appear to have requested access to the information he now asserts was denied him. In his initial, informal requests for information, appellant sought to "confer with County— employed personnel knowledgeable about the jury selection system in Marin County so that we can understand how various tasks, outlined below, are undertaken" and to have a specified employee "review some available and representative summons forms with us." Specifically, appellant sought to review the "name of the computer program used to merge the jury source lists[,]" the "method by which the random selection of names is made to allow jurors to receive a qualification questionnaire, or a summons[,]" whether the county was using source lists other than lists from the Department of Motor Vehicles and registry of voters, the "way in which the venire, and then the panel lists are drawn" by the Jury Commissioners Office, the "internal rules" governing decisions on deferrals and excuses, and the "manner in which the Court is involved in the process of reviewing excusals or deferrals." Nowhere in appellants written request is there any mention of the sort of data referred to in appellants briefs on appeal.
Appellants formal motion for discovery of jury information is similar. Appellant sought (1) access to the master list in use or to be used at the time of trial; (2) a "description of the way the jury panels are drawn," including "information which would allow [appellants] lawyers a reasonable understanding of the way in which prospective jurors are: [P] a. summoned for jury service; [P] b. excused from jury service prior to their first appearance in court; [P] c. deferred from jury service at the time for service stated on the summons; [P] d. accommodated in other ways pursuant to the Code of Civil Procedure so that they either do not appear on the date stated on their summons, or are in some way excused from service prior to going to court;" (3) "copies of all internal rules, procedures, memoranda, or manuals which inform Marin County courts, and the Court Executive Officer or the Jury Commissioner, and the staff of these governmental entities of the ways in which jury panel lists are to be composed, and prospective jurors are to be excused or have their service deferred within the meaning of the Code of Civil Procedure;" and (4) "copies of all writings, including written policies, manuals, memoranda, Court Orders, standing Court Orders in existence used by the courts, and court personnel, of the County of Marin to make uniform decisions to excuse, or defer, jurors from service once these prospective jurors have actually reported to the Marin County Civic Center pursuant to a summons[.]" Again, the information appellant sought was general, pertaining to the countys procedures. Indeed, noting the California Supreme Courts statement that information such as master lists of jury pools and jury selection policies and practices are judicial records that should be available to the public (People v. Jackson, supra, 13 Cal.4th 1164, 1194-1195), appellant specifically stated: "At this point, there is no specific invasion of the Jury Commissioners Office involved here. There is no specific fieldwork being requested at this point. Mr. Hunter is asking for access to public records."
The trial courts order for disclosure appears to have provided for discovery of the information appellant requested, ordering that appellant be given information on whether the county was using source lists beyond those mandated by Code of Civil Procedure section 197, subdivision (b); a description of the manner in which venire and panel lists were drawn by the Jury Commissioners Office; and internal rules governing the manner in which the court and county staff grant deferrals and excusals.
So far as the record discloses, appellant never sought reconsideration of this order or requested that he be permitted access to the Jury Commissioners records; indeed, such a request would have been inconsistent with appellants statement that his request for discovery did not involve any "specific invasion of the Jury Commissioners Office."
Appellants initial motion to quash the jury panel expressly recognized that the motion was based on what might be viewed as insufficient evidence. In his memorandum of points and authorities, appellant noted that "many modern jury composition challenges (see, for example, People v. Bell, supra, 49 Cal.3d 502) stem from cases in which jury research has been done over a period of time," including "actual demographic research conducted, most often in death penalty cases, inside the Jury Commissioners office." Appellant stated, "Here, Mr. Hunter relies primarily on anecdotal information (and 1990 Census figures), as well as actual observation of his own trial jury panel, as a basis for this motion. For reasons that need not be stated in this pleading, given that Mr. Hunter is indigent and that this is no longer a death penalty case, certain decisions based on economic realities had to be made which may, in the end, have prejudiced Mr. Hunters ability to litigate this motion as well as possible. The Hunter defense full well understands that the factual burden to be borne in such litigation is relatively heavy." Appellant thus presented any deficiencies in his motion as resulting from conscious decisions made by the defense. Similarly, during jury selection, defense counsel conceded that there was no ongoing research regarding the composition of the current panel and that the court "might well" find there was insufficient evidence to make a prima facie case.
Appellant renewed his motion, orally, during jury selection in October 1999. At this time, defense counsel acknowledged that the defense had not undertaken a "courthouse survey," stating that the previous judge had refused to allow "an invasion of the jury commissioners office" and that when the death demand was dropped, the defense "decided not to devote our energies to that issue." When the motion was heard, the defense acknowledged that it had "developed little of the type of evidence that is often submitted in jury composition litigation where the defense has been able to conduct surveys inside the jury commissioners facilities in order to survey exactly who it is that makes it onto juries in a given county," as the court administrator and previous trial judge had not permitted such a survey.
Although appellant thus attributed the absence of further evidence that might have been derived from the jury commissioners office records, we can find no indication in the record that he ever requested access to such information. Rather, it appears that the defense decided not to pursue the jury representativeness issue with vigor after the death penalty demand was dropped. As appellant concedes, the general jury selection procedures utilized in Marin County were approved in People v. Ramos, supra, 15 Cal.4th 1133, 1156. In these circumstances, we agree with respondent that appellant waived any challenge to the trial courts failure to allow him access to additional jury selection information. (See, People v. Saunders (1993) 5 Cal.4th 580, 589-590, 853 P.2d 1093.) Since the evidence appellant presented was clearly insufficient to satisfy the third prong of Duren, the trial court did not err in denying the motion to quash the jury panel.
II.
Appellant urges the trial court erred in permitting the prosecution to use statements appellant made during plea bargaining as evidence of guilt. Evidence Code section 1153 provides: "Evidence of a plea of guilty, later withdrawn, or of an offer to plead guilty to the crime charged or to any other crime, made by the defendant in a criminal action is inadmissible in any action or in any proceeding of any nature, including proceedings before agencies, commissions, boards, and tribunals." Penal Code section 1192.4 provides: "If the defendants plea of guilty pursuant to Section 1192.1 or 1192.2 is not accepted by the prosecuting attorney and approved by the court, the plea shall be deemed withdrawn and the defendant may then enter such plea or pleas as would otherwise have been available. The plea so withdrawn may not be received in evidence in any criminal, civil, or special action or proceeding of any nature, including proceedings before agencies, commissions, boards, and tribunals."
The purpose of these statutes "is to promote the public interest by encouraging the settlement of criminal cases without the necessity of a trial." (People v. Crow (1995) 28 Cal.App.4th 440, 450, quoting People v. Sirhan (1972) 7 Cal.3d 710, 745, 102 Cal. Rptr. 385, 497 P.2d 1121; People v. Quinn (1964) 61 Cal.2d 551, 554, 39 Cal. Rptr. 393, 393 P.2d 705.) "With judicial approval, plea bargaining has become an integral part of our criminal justice system. [Citation.] Plea bargains can be so frequently made because both sides benefit. Thus the system constitutes a standing invitation to talk, to explain, to bargain, and to admit. (People v. Tanner (1975) 45 Cal. App. 3d 345, 352, 119 Cal. Rptr. 407 . . . .) Accordingly, courts have found that the statutory bar applies to an offer to plead guilty to a lesser offense made in an affidavit signed by the defendant and submitted to the trial court (People v. Wilson (1963) 60 Cal.2d 139, 154-156, 32 Cal. Rptr. 44, 383 P.2d 452 . . .), a verbal offer made by the defendant to the prosecutor to plead guilty if assured of a life sentence (People v. Hamilton [1963] 60 Cal.2d [105], 112-114), letters written by the defendant while awaiting trial to the deputy prosecutor in charge of his case and to the district attorney which discussed pending plea negotiations (People v. Tanner, supra, 45 Cal. App. 3d [345,] 353-354), and a conversation between the accused and a deputy prosecutor in which the former attempted to exchange information in return for a jail sentence (People v. Doran (1972) 24 Cal. App. 3d 316, 320-321, 100 Cal. Rptr. 886 . . . )." (People v. Magana (1993) 17 Cal.App.4th 1371, 1376.)
The statutes apply to any admissions made during bona fide plea bargaining, not solely to offers to plead guilty. (People v. Tanner, supra , 45 Cal. App. 3d 345, 351— 352.) They do not apply, however, to statements made outside the context of bona fide plea negotiations. (People v. Magana, supra, 17 Cal.App.4th 1371, 1377.) In People v. Sirhan, supra, 7 Cal.3d 710, overruled on other grounds in Hawkins v. Superior Court (1978) 22 Cal.3d 584, 593, fn. 7, 150 Cal. Rptr. 435, 586 P.2d 916, for example, the defendants "offer" to plead guilty to first degree murder, made in an angry outburst to the court, was held admissible because it was not made as part of a plea negotiation. In People v. Posten (1980) 108 Cal. App. 3d 633, 166 Cal. Rptr. 661, the defendant, who had not been given Miranda warnings, offered to plead guilty to lesser offenses in statements to law enforcement officers who were transporting him across the country after his arrest. The court concluded that the statements were not within the ambit of section 1192.4 and Evidence Code section 1153 because the "offers were not made in the course of bona fide plea negotiations but were merely unsolicited admissions by appellant without any understanding that they would be inadmissible." (108 Cal. App. 3d at p. 648.) People v. Magana, supra, found admissible a statement by a defendant, in a letter to a fellow gang member, that he would accept a plea bargain for a 10-year sentence if it was offered because the statement was voluntarily made to a third person "unnecessary to the plea negotiations." (17 Cal.App.4th at p. 1376.) As Magana summarized the case law: "Bona fide plea negotiations include statements made to the trial court and to the prosecuting attorney because those are the participants in a plea bargain. (But see People v. Cummings (1993) 4 Cal.4th 1233, 1316-1319, 850 P.2d 1 . . . [defendants statements made in an interview with the prosecutor were not covered by Evid. Code, § 1153 because the interview was given as a precondition to initiation of any plea bargain discussions].) On the other hand, bona fide plea negotiations do not include statements to transporting police officers or statements made in anger to the trial court." (People v. Magana, supra, 17 Cal.App.4th at p. 1377.)
In the present case, as detailed above, after waiving his right to remain silent, appellant told the police he could give them "the entire case on a silver platter," but wanted a deal in writing for immunity or a plea to manslaughter. When the officers responded that they had no authority to make a deal and their supervisors would want an indication of what appellant knew, appellant said that Koulibaly would have used the larger-than-.9-millimeter gun and that before the homicide appellant had seen Koulibaly in a dark blue puffy jacket with the words "First Down" on the left chest. The officers agreed to communicate this information to their supervisors and the district attorneys office, but reiterated that they did not have the authority to make any promises. Appellant subsequently reiterated his willingness to provide full information about the homicide in exchange for immunity or a plea to no more than manslaughter; the officers told him the district attorneys office needed more information to determine the depth of his knowledge before any deal could be considered; and appellant refused to give any more information without a deal being made in writing.
The trial court ruled appellants statements admissible, finding that section 1192.4 and Evidence Code section 1153 did not apply because at the time appellant made the statements, he had not been charged with a crime and was not involved in plea negotiations. According to the court, the exchanges between appellant and the officers was not a plea negotiation but a "give-and-take in the context of each side, law enforcement on the one hand and Mr. Hunter on the other, trying to find out exactly how much the other knew." The court noted that since appellant had waived his Miranda rights, he knew what he said could be used against him, and could not have had any reasonable expectation that his statements would be inadmissible.
In March 1998, appellant moved to suppress all statements he made to the police on or after January 14, 1997, on the ground that they were illegally obtained. These included the statements made by appellant to the police on February 10, 11, and 12, concerning his possible willingness to give the prosecution information about the case in exchange for immunity or a plea of guilty to manslaughter, as well as appellants statements denying having been in Marin City at the time of the shooting and denying knowing Koulibaly or the other people whose photographs he was shown by the police. At the July 1998 hearing on this motion, the court raised the question whether statements made as part of a negotiation for a lesser sanction were admissible. At the conclusion of the hearing, the court denied appellants motion without prejudice to a motion to exclude certain statements. Subsequently, the parties filed briefs on this point, addressed to appellants statements at the end of the February 10, 1997, interview and in the February 11 and 12 conversations with the police.
Appellant relies heavily on People v. Tanner, supra, 45 Cal. App. 3d 345 to argue that his statements should have been suppressed. In Tanner, the defendant wrote two letters to the district attorney, complaining that he had not been offered a fair plea bargain. The court found the statements inadmissible because they were made during plea bargaining, noting that the defendants letter referred to a deal he had been offered by the prosecution. (Id. at p. 352.) In Tanner, however, the defendants communications were made directly to the prosecutor, who had authority to enter into a plea bargain, and referred to an actual deal the defendant had been offered. Here, appellants discussions were with law enforcement officers who made clear they lacked authority to enter a plea bargain and simply said they would communicate appellants statements to the proper authorities.
The situation in the present case is more similar to that in People v. Cummings, supra, 4 Cal.4th 1233. There, the defendant made incriminating statements during an interview with the prosecutor, prosecution investigator and a police officer. The interview occurred in response to a defense request for the defendant to take a polygraph examination in hopes of becoming a prosecution witness; the prosecutor was willing to allow the polygraph only if he believed the defendant was truthful after speaking with him, and to arrange a plea bargain only if the defendant passed the polygraph test. The defendant waived his Miranda rights at the outset of the hearing, except for his right to counsel. (Id. at p. 1316.) Cummings found that the defendants statements were "not made in the course of plea negotiations, but as a precondition to initiation of any discussion of disposition of the charges. If there was any doubt as to that nature of the interview the express advice that the statement would be used against Gay was adequate to warn him and his attorney that the prosecutor intended to use Gays statement at trial." (Id. at pp. 1317-1318.)
Here, as in Cummings, appellants discussions with Frey and Nash, which occurred before appellant was actually charged in the murder case, were preliminary to any actual plea bargaining with the prosecution: Appellant offered to provide information about the case if he was given immunity or allowed to plead guilty to manslaughter and the police responded that they would have to communicate this request to the prosecutor, then subsequently told appellant he would need to provide more information before the prosecutor would consider a deal. Unlike the situation in Cummings, the prosecutor was not a party to these discussions; appellant spoke only with the police officers, who expressly informed appellant that they lacked authority to enter into a plea bargain. As in Cummings, appellant was specifically warned that his statements could be used against him: At the February 10 interview, appellant acknowledged, "Yeah. Yeah. I know. Anything I say can be used against me in court."
Appellant stresses that the fact he had not been charged in the murder case does not render section 1192.4 and Evidence Code section 1153 inapplicable. (United States v. Washington (E.D.Pa. 1985) 614 F. Supp. 144 [pre-indictment statements inadmissible under federal statute prohibiting use of statements made in plea bargaining]; United States v. Boltz (D.Alaska 1987) 663 F. Supp. 956 ["That the bargaining process took place before charges were filed likewise makes no difference."].) While the status of the case against appellant is not a dispositive factor precluding application of section 1192.4 and Evidence Code section 1153, it may nevertheless be a relevant fact in determining whether appellant was engaged in bona fide plea bargaining.
The trial court correctly determined that appellants statements were admissible.
III.
Appellant next contends the trial court infringed his Sixth Amendment right to counsel by refusing to allow the defense to introduce into evidence a July 1997 newspaper article reporting that the death penalty was being sought in this case and the prosecutions January 1998 letter of election not to seek the death penalty, and by unfairly limiting defense counsels argument to the jury concerning appellants state of mind when he offered to plead guilty to manslaughter. Appellant argues that since the prosecution was allowed to introduce evidence of appellants offer to plead guilty, and argue to the jury that this offer demonstrated a consciousness of guilt, appellant should have been permitted to demonstrate that at the time of his interviews with Nash and Frey the case was being pursued as a death penalty case and to argue that he offered to plead guilty out of fear of receiving the death penalty despite his innocence of the charges. In appellants view, the newspaper article and prosecution letter would have corroborated his testimony that he knew he was facing the death penalty at the time he offered to plead to manslaughter by demonstrating that the case was in fact initially pursued as a capital one.
Appellant testified that when he was first in court on the present charges he understood that the death penalty was being sought. He also mentioned, in his testimony, a newspaper article reporting that he was facing the death penalty. As indicated above, he testified that during the conversations with the police in which possible immunity or guilty pleas were discussed, the officers told him they had considerable evidence against him and the prosecutor was going to pursue the death penalty. On rebuttal, Detective Frey denied that the death penalty was mentioned during these discussions. Cross-examining Frey, defense counsel asked when the decision to seek the death penalty was made; the prosecution objected and, after an off-the-record discussion, the objection was sustained. Outside the presence of the jury, defense counsel noted that in light of the courts ruling that the defense could not ask Frey about "death penalty related matters," the prosecutions letter of election not to pursue the death penalty (Exh. III) would not be coming into evidence. Defense counsel pointed out that the jury had no way to know that the case against appellant was initially viewed as a death penalty case, which it was at the time defense counsel was appointed. The court, however, viewed the posture of the case in July and August 1997 as irrelevant to the situation in February 1997, when appellant was interviewed by the police. The prosecutor represented to the court that he was the person advising the sheriffs department, that he at no time gave any advice regarding the death penalty and that based on his conversations, Frey "did not have any of that in mind."
The following day, defense counsel returned to the subject, stating his intention, during final argument, "to comment on the difference between Detective Freys version of aspects of the February 10 interview and Mr. Hunters version of what he was told or what he understood" with reference to the death penalty being discussed. The prosecutor stated he would object to the defense going beyond argument based on Freys and appellants testimony and moved to strike appellants testimony about his understanding that the death penalty was being sought in his case. The prosecutor argued that aside from appellants state of mind-whether the police referred to the death penalty and this had bearing on appellants offer to plead guilty to manslaughter-mention of the death penalty would be irrelevant and prejudicial to the prosecution as it was a "highly charged and emotional issue" and the jury had been told this was not a death penalty case. Defense counsel argued that the July 1997 newspaper article demonstrated that there was a factual basis for appellants position.
The court viewed the newspaper article as irrelevant to appellants state of mind in February 1997. The court denied the prosecutions motion to strike appellants testimony that he understood the case to be a capital one, but directed defense counsel not to refer to this testimony in argument to the jury.
We consider first appellants contention that the court infringed his constitutional right to counsel by precluding defense counsel from commenting, in argument to the jury, on appellants belief in July 1997 that he was facing the death penalty. As described above, the court denied the prosecutors motion to strike appellants testimony to this effect but directed defense counsel not to refer to it in argument. Before reaching this ruling, the court had indicated it was going to grant the motion to strike, because it viewed appellants state of mind in July 1997 as irrelevant to his state of mind in February 1997 and, alternatively, any probative value of the testimony was minimal and outweighed by the danger of confusion and prejudice, as the issue of the death penalty was not for the jury to consider. The court noted that there was no evidence, even in the July 1997 newspaper article, that anyone was seeking the death penalty in February 1997, which was before appellant was even charged. After concluding that the testimony would not be stricken but defense counsel directed not to refer to it in argument, the court explained that it did not think a statement in argument that appellant continued to believe he was facing the death penalty in July 1997 would add to the credibility of his statement as to his state of mind in February 1997. The court also noted that "the whole issue of how the death penalty is sought in a case like this is so complicated and not properly at issue before the jury, that to get into it, so that it could be put into proper context, I dont believe is appropriate for 352 reasons. " Among the rights guaranteed to criminal defendants by the Sixth Amendment to the United States Constitution, extended to state criminal prosecutions through the Fourteenth Amendment, is the right to the assistance of counsel. (Herring v. New York (1975) 422 U.S. 853, 857, 45 L. Ed. 2d 593, 95 S. Ct. 2550.) As part of the right to the assistance of counsel, "there can be no restrictions upon the function of counsel in defending a criminal prosecution in accord with the traditions of the adversary factfinding process that has been constitutionalized in the Sixth and Fourteenth Amendments" and the defense in a criminal trial must be given "the opportunity to participate fully and fairly in the adversary factfinding process." (Id. at p. 857.)
In Herring, the trial court, under authority of a state statute, refused to allow the defense attorney in a criminal trial to present a closing argument. The Court held that "closing argument for the defense is a basic element of the adversary factfinding process in a criminal trial" and that the complete denial of an opportunity to make a closing argument is a violation of the constitutional right to counsel. (Id. at pp. 858-859, 863) Similarly, a defendants right to counsel is denied where the court seriously limits defense closing argument, as by precluding reference to an entire theory of defense (Conde v. Henry (9th Cir. 2000) 198 F.3d 734) [theory that prosecution failed to prove robbery or intent to rob in prosecution for kidnap for purposes of robbery] or preventing counsel from arguing the significance of evidence critical to a theory of defense (United States v. Kellington (9th Cir. 2000) 217 F.3d 1084 [expert testimony on legal ethics relevant to defense attempt to negate intent in charged offense of obstruction of justice]).
On the other hand, Herring explained, "This is not to say that closing arguments in a criminal case must be uncontrolled or even unrestrained. The presiding judge must be and is given great latitude in controlling the duration and limiting the scope of closing summations. He may limit counsel to a reasonable time and may terminate argument when continuation would be repetitive or redundant. He may ensure that argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial. In all these respects he must have broad discretion." (Id. at pp. 862-863.) Under section 1044, "It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved."
Here, the trial court directed defense counsel not to refer in argument to testimony which the court viewed as irrelevant; the testimony was not stricken, apparently, because no objection was made at the time it was given. "Relevant evidence is evidence having any tendency in reason to prove or disprove any disputed fact . . . . ([Evid. Code,] § 210.) The trial court is vested with wide discretion in determining the relevance of evidence. (People v. Green (1980) 27 Cal.3d 1, 19, 164 Cal. Rptr. 1, 609 P.2d 468 . . . .) The court, however, has no discretion to admit irrelevant evidence. (People v. Turner (1984) 37 Cal.3d 302, 321, 208 Cal. Rptr. 196, 690 P.2d 669 . . . .) Speculative inferences that are derived from evidence cannot be deemed to be relevant to establish the speculatively inferred fact in light of Evidence Code section 210, which requires that evidence offered to prove or disprove a disputed fact must have a tendency in reason for such purpose. (People v. De La Plane (1979) 88 Cal. App. 3d 223, 244, 151 Cal. Rptr. 843 . . ., disapproved on other grounds in People v. Green, supra, 27 Cal.3d at p. 39, fn. 25.) . . . Evidence which produces only speculative inferences is irrelevant evidence. (People v. De La Plane, supra, 88 Cal. App. 3d at p. 242, italics in original.)" (People v. Babbitt (1988) 45 Cal.3d 660, 681-682, 248 Cal. Rptr. 69, 755 P.2d 253.
The relevance of this testimony is a close call. On the one hand, it is reasonable to view the inference appellant sought to draw from the evidence as speculative: The fact that appellant read in the newspaper in July 1997 that he could face the death penalty in this case simply does not demonstrate that the case was thought of as a death penalty case the preceding February. Accordingly, the evidence would not tend to bolster the credibility of appellants testimony that the police threatened him with the death penalty in the February 1997 interview. On the other hand, this evidence did serve to inform the jury that at some point in time— July 1997-the case was thought of as a death penalty case. Stated differently, without this evidence, it would appear to the jury that appellant had never faced the death penalty (thereby reinforcing the police denial that this subject was discussed), when in fact there was a time at which the death penalty could have been sought.
Assuming for the sake of argument that the trial court abused its discretion in viewing this evidence as irrelevant, and therefore in precluding counsel from referring to it in closing argument, this limitation did not result in a deprivation of the right to counsel constituting structural error at the trial. Counsel was neither precluded from giving a closing argument (Herring v. New York, supra, 422 U.S. at p. 857) nor from arguing an entire theory of defense (Conde v. Henry, supra, 198 F.3d 734) or negating an element of the offense (United States v. Kellington, supra, 217 F.3d 1084). Rather, the ruling only precluded counsel from making an argument by which he sought to bolster one side of a credibility contest on an issue that was presented to the jury as one of a number of factors bearing on appellants guilt. At most, the error here would be an abuse of discretion in the limitation imposed on closing argument.
Any such error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.) At best, the inference to be drawn from the evidence was weak. With respect to appellants offer to plead guilty to manslaughter, the jury was called upon to decide whether the police threatened appellant with the death penalty in the February 1997 interview, as he claimed, or did not discuss the subject, as they claimed. The testimony in question was appellants statement that a newspaper in July 1997 reported this as a capital case. The defense theory that appellant offered to plead guilty out of fear of prosecution for murder, rather than consciousness of guilt, was presented to the jury; this was one instance among many in which the jury was called upon to determine the credibility of police officers against that of witnesses whose accounts at trial differed from what the police described from their interviews. The testimony about the July 1997 newspaper report was so far removed in time from the February 1997 interview that there is no significant likelihood the jury would have been more disposed to believe appellants testimony if its attention had been drawn to the fact that the case was portrayed as a capital one in July 1997.
Moreover, and despite appellants protestations to the contrary, the case against appellant was strong. As will be discussed, three eyewitnesses at the party positively identified appellant from photographic lineups within days of the shooting as the man who held a gun on the people in Hendersons apartment. Various witnesses placed appellant in the area of the shooting, with Koulibaly, before it occurred. Appellant told numerous lies to the authorities about the night of the shooting, and went so far as to suborn perjury at his parole revocation hearing. There is simply no reasonable probability the outcome of the case would have been more favorable if defense counsel had been permitted to argue this point in closing.
As indicated above, appellant also challenges the trial courts refusal to admit into evidence the July 1997 newspaper article reporting that this case was being pursued as a death penalty case and the prosecutors January 1998 letter electing not to pursue the death penalty. Here, the issue is not directly the limitation of closing argument-without the documents in evidence, counsel could not have referred to them-but the rulings on admissibility.
Interestingly, neither party cites to a portion of the record where these items were actually offered into evidence. Subsequent discussions on the record, however, make clear that the trial court viewed both as irrelevant, as well as potentially confusing and prejudicial under Evidence Code section 352 due to introduction of death penalty issues into the case.
We are not persuaded by respondents argument that the issue was waived by defense counsels failure to offer these items into evidence. While neither party cites to a portion of the record where the items were offered into evidence, the record reflects discussions between counsel and the court which make it clear that the court excluded them. In the discussion described above, defense counsel specifically acknowledged that the letter "obviously, under the circumstances, will not be going into evidence" and requested that it be "retained in the record." Later in the discussion, defense counsel argued, "What [appellant] was saying is true. He ends up-they end up, as far as hes concerned, right, because you have not let us put in the newspaper, which would have corroborated what he said." The court responded, "The July newspaper." Counsel continued, "We cant get in the letter. Absolutely the death demand is dropped at the point at which its very clear that the physical evidence does not corroborate the early statements that caused Frey to describe [appellant] in letters and in reports, which Frey actually acknowledged as the primary shooter. [P] And so the question, your Honor, with respect to whats going on in February, right, what Hunter asserts is this topic comes up. Frey says it doesnt come up. And you dont let us get into any of that with Frey. I cant ask him about that . . ." These comments by defense counsel, uncontradicted by opposing counsel or the court, indicate that the admissibility of the two pieces of evidence had previously been determined.
The newspaper article and prosecutions letter, like appellants testimony above, were offered as evidence tending to support an inference that the death penalty was in fact a prospect in this case in February 1997, when appellant was interviewed by the police. Neither directly addresses the situation in February 1997; both indicate the death penalty was under consideration in July 1997 and at points prior to January 1998. The relevance of these items of evidence, like appellants testimony discussed above, is a close question. Respondent argues that the newspaper article was also inadmissible as hearsay. We need not resolve this point. As with appellants testimony discussed above, the strength of the inference appellant sought to draw from the article and letter was weak. While arguably stronger than appellants own testimony, neither item of evidence directly demonstrated anything about the status of death penalty considerations in February 1997. Thus, there is no reasonable likelihood the jury would have been more inclined to believe appellants description of the death penalty discussions in February 1997 if it was presented with direct evidence that the prosecution was seeking the death penalty in July 1997 and elected not to pursue the death penalty only in January 1998.
IV.
Appellant contends the trial court erred in allowing the prosecution to present evidence of the three photographic line up identifications by which Shayla Davis, Raythell Scott and Catherine Curry identified him to the police. Appellant claims the lineups were unduly suggestive and the identifications generally not reliable.
Appellant initially sought exclusion of this evidence in pretrial motions filed on June 2, 1998. Exclusion was denied, reserving to the defense the opportunity for a hearing regarding testimony by witnesses who did not testify at the preliminary hearing. It was agreed that all rulings on pretrial motions would be binding at the present trial.
"In order to determine whether the admission of identification evidence violates a defendants right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witnesss degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification. (Manson v. Brathwaite (1977) 432 U.S. 98, 104-107, 53 L. Ed. 2d 140, 97 S. Ct. 2243 . . .; Neil v. Biggers (1972) 409 U.S. 188, 199-200, 34 L. Ed. 2d 401, 93 S. Ct. 375, . . .; People v. Ochoa [supra] 19 Cal.4th 353, 412, 966 P.2d 442, . . .; People v. Johnson (1992) 3 Cal.4th 1183, 1216, 842 P.2d 1, . . .; People v. Gordon (1990) 50 Cal.3d 1223, 1242, 270 Cal. Rptr. 451, 792 P.2d 251 . . . .) The defendant bears the burden of demonstrating the existence of an unreliable identification procedure. (People v. Ochoa, supra, 19 Cal.4th 353, 412 . . .; People v. DeSantis (1992) 2 Cal.4th 1198, 1222, 831 P.2d 1210 . . .). The question is whether anything caused defendant to "stand out" from the others in a way that would suggest the witness should select him. (People v. Carpenter (1997) 15 Cal.4th 312, 367, 935 P.2d 708 . . . .) . . . . There must be a substantial likelihood of irreparable misidentification under the "totality of the circumstances" to warrant reversal of a conviction on this ground. (Manson v. Brathwaite, supra, 432 U.S. 98, 104-107 . . .)" (People v. Cunningham (2001) 25 Cal.4th 926, 989-990.)
"It is unsettled whether suggestiveness is a question of fact (or a predominantly factual mixed question) and, as such, subject to deferential review on appeal, or a question of law (or a predominantly legal mixed question) and, as such, subject to review de novo. (Compare Cikora v. Dugger (11th Cir. 1988) 840 F.2d 893, 895-896 [supporting the former position] and People v. Martinez (1989) 207 Cal. App. 3d 1204, 1220, 255 Cal. Rptr. 691 . . . [same] with Cikora v. Dugger, supra, at pp. 899-900 (conc. & dis. opn. of Clark, J.) [supporting the latter position] and United States v. Johnson (9th Cir.1987) 820 F.2d 1065, 1072 [same].)" (People v. Gordon, supra, 50 Cal.3d 1223, 1242-1243.) The trial courts determination of factual issues, however, are given deference on review. (People v. Carpenter, supra, 15 Cal.4th at p. 367.)
Appellant contends that the photographic lineup was inherently suggestive because three of the six subjects were wearing orange jail clothes and the witnesses knew at the time they viewed the photographs that no one had been arrested for the murder. Of the remaining three subjects, only one had the dark skin the witnesses had described the perpetrator as having; the other two appeared to have significantly lighter complexions.
This subject was explored, at trial, during Daviss testimony. Davis testified on direct examination that when she looked at the six photographs comprising the lineup on January 13, 1997, she recognized a face as the shooter she had described and signed a form indicating she was "positive" about her choice. Kris Allen, the detective who showed Davis the photographs, said that Davis looked through them and when she got to number 5, appellants picture, said "thats the one."
Davis acknowledged on cross-examination that at the time of the lineup she believed that the person she had seen in the apartment was not in custody; that three of the photographs were of people who did not appear to have dark skin; that three of the photographs were of people wearing orange sweatshirts, which Davis stated she thought "crazy people" in jail wear; that only one of the three subjects wearing "street clothes" had dark skin; and that this was the photograph she picked. She initially stated, however, that she did not associate orange sweatshirts with people who were in custody, noting that she owned such a sweatshirt herself. She testified that she picked the photograph she did because of the subjects eyes. On redirect, she stated that all the photographs in the lineup were of African-American men with very short or relatively short hair and "longer" noses; that the subjects dress-the fact some were wearing orange-had no influence on her choice; and that the background of the photographs made it appear they had all been taken at the same type of location.
Having reviewed the photographs, we find nothing overly suggestive about them. The six photographs each show an African-American man of apparently similar age, with similar hairstyles and facial hair. The backgrounds of the photographs are substantially similar, making it appear they were taken under similar circumstances. The orange sweatshirts do not display any markings revealing them as jail garb. Moreover, there are no dates on any of the photographs to indicate when they were taken; as the prosecutor argued at trial, even if the witnesses recognized the sweatshirts as jail clothing, they would have had no basis for knowing whether the photographs were of individuals currently in custody or individuals who had been in custody at some time in the past. Neither the fact that three of the subjects were wearing orange sweatshirts, nor the fact that two of the subjects had lighter skin than the others, is sufficient to render the lineup unduly suggestive. "There is no requirement that a defendant in a lineup must be surrounded by people nearly identical in appearance. (Wright v. Smith (W.D. N.Y. 1977) 434 F. Supp. 339, 342 [revd. on other grounds in Wright v. Smith (2d Cir. 1978) 569 F.2d 1188].)" (People v. Blair (1979) 25 Cal.3d 640, 661, 159 Cal. Rptr. 818, 602 P.2d 738; see, People v. Guillebeau (1980) 107 Cal. App. 3d 531, 166 Cal. Rptr. 45 [photo lineup of six African-Americans; defendant is only one with dark skin tone].)
Appellant argues that the witnesses preliminary hearing and trial testimony undercut the reliability of their photographic identification. Daviss identifications of appellant at the preliminary hearing and at trial were somewhat equivocal. At the preliminary hearing, Davis testified that appellant "looked like" the person she had seen with the gun at the time of the homicide and "could be him." Asked how sure she was, Davis replied that he did not look the same as the person who came into the room but did look like the person in the photographic lineup, and then that appellant was the person she saw in the apartment. At trial, Davis stated that she was "pretty sure" of this last statement at the preliminary hearing and identified appellant, saying "I think so." After appellant was asked to remove his glasses and stand, however, Davis said she could not say whether this was the man because "he looks different. He even looks more different than he did at the preliminary." Davis explained that at the preliminary hearing she had said appellant "looked like" the man but there were differences: He was calm rather than excited, his eyes were not "all big" and his skin was lighter.
Despite her testimony at the preliminary hearing in December 1997 and at trial in late November 1999, consideration of the factors enumerated in Manson v. Brathwaite, supra, 432 U.S. at pp. 104-107, tends to suggest the photo identification was reliable. Davis positively identified appellant from the photo lineup on January 13, 1997, only days after the shooting. At the time of the shooting, she saw the perpetrator from about 10 feet away, in a lighted room, and got a "pretty good" look at him when he turned his face toward her. She was able to provide a fairly detailed description of him: tall, with dark skin, a "pointy" nose, eyes that were big, "like bugged," and a fade haircut, wearing a blue jacket. The trial court noted, in denying appellants motion for a new trial on grounds of unreliable identifications, that based on its view of the scene, the room in which the murder occurred was "so small that I dont see any way when someone was as close to the perpetrators as the witnesses were here, that they would have any trouble whatsoever identifying the persons who were doing it." Additionally, the court concluded that whatever uncertainty, reticence or equivocation was demonstrated by the witnesses "resulted from fear of telling Mr. Hunter face-to-face that he was the person who was standing there with Mr. Koulibaly firing at the victim." Daviss fear of repercussion from the perpetrators of this offense was demonstrated in the record: She had initially left town for a week, after she was identified in the newspaper as a witness and her photograph published against her wishes, and she testified at trial that she was afraid she would be killed as a result of her testimony, having heard comments to this effect, but stayed in Marin City because she would not leave her elderly great-grandmother, with whom she lived. Daviss fear provides an explanation for her equivocal testimony which seriously undermines the significance of that testimony in tending to demonstrate Daviss photographic identification was unreliable.
Catherine Currys testimony was more problematic, in part because it directly sought to downplay the significance of the photo identification. According to Curry her level of certainty when she picked the photograph of appellant in the lineup was about four or five on a scale of one to ten. She testified that when she picked the photograph, she did not mean "that is the person" but "that is the person that most looks like the person that came into the apartment." Curry further testified that sometime after she was shown the photographic lineup, she went to lunch with Detective Kris Allen, who told her she had chosen the right person.
At the preliminary hearing, when asked if she had seen appellant before and if he was the person she identified in the photo lineup, Curry stated that she did not remember, and that he did not look familiar. Throughout the preliminary hearing, Curry responded to most of the questions regarding the shooter by stating she did not remember. During the grand jury proceedings, when asked whether she had seen the gunman in court at the preliminary hearing, Curry testified, "I guess. He had to be the person. He was arrested for it." She also testified that she was familiar with appellants face "because people talk, tell you how he look, and thats how you put his name with his face." Curry had seen appellants picture in the newspaper.
At trial, Curry identified appellant as the gunman, both when he was seated wearing his glasses and when he was standing, without his glasses, saying there was no question in her mind about her identification. When asked if she saw the gunman in court, Curry stated, "Yes, because I know who he is. I identified him in a lineup. And I told you that I knew who I chose because I was told that I was right." At another point, asked if she could "look back" and picture what his face looked like at the time of the shooting, Curry responded, "I mean, I picture his face because you all arrested him for it, so, obviously, I think he done it. And so thats the face I see."
Currys testimony about the photographic identification was contradicted by that of Detective Allen, who showed Curry the lineup on January 14, 1997. Allen testified that Curry immediately put aside three of the photos, then laid out the other three, pointed to the one of appellant (number 6) and said, "This guy." According to Allen, during the lineup, Currys mother was telling her she should not be getting involved and, although Curry was positive about her identification, she marked "possible" on the form after her mother expressed anger that she had identified someone. Allen confirmed that she had had lunch with Curry, months after the identification, because Curry was frightened about having gotten involved in the case. Allen testified that Curry, with a smile, stated very confidently, "I identified the right guy, didnt I?" Allen told her she could not answer that.
Like Davis, Curry viewed appellant as the shooting began from a short distance, across a room so small that the court stated it could not see how the witnesses would not be able to identify the perpetrator. Also like Davis, Curry viewed the photographic lineup only days after the shooting. While she downplayed the certainty of her identification, Allen testified that Curry positively identified appellants photograph. Allen also testified that Curry was pressured by her mother not to become involved in the case and not to record her identification. This testimony supports the trial courts view that the equivocal and uncertain identification testimony at trial resulted from Currys fear of involvement in the case. While Currys in-court identification was obviously undermined by her testimony that she had heard what he looked like from others, there was no evidence that she had been so influenced before the photographic lineup. Curry testified that she knew appellant had visited Marin City when she was younger, because she heard people say so, but she did not remember him and did not recall having seen him prior to January 9. Although she had heard the name Darrell Hunter mentioned as someone connected with the shooting, there was nothing in what she heard that led her to pick the photograph she selected in the lineup. She had not seen any photographs of appellant before the photo lineup; she did see one photograph of him in the newspaper after the grand jury proceedings in October 1998.
Raythell Scott, at trial, repudiated his pretrial photographic identification. According to Detective Frey (and corroborated by Lieutenant Laden), when Scott got to appellants photograph in the lineup, he threw it down on the table, stood up and said, "Oh, God damn. Thats him. Thats the one that shot Ronnie. He be looking down just like that." Scott reiterated his identification after looking at the remaining photographs, but refused to sign the form indicating his identification, saying he did not want to be involved. Frey wrote the date on the form, checked the "positive" box and wrote in the number 4, then signed the form.
Scott, however, testified that he only told Frey the photograph of appellant looked "a little familiar to the guy that I seen, as far as the eyes . . ." and that the detective "pretty much threw this photograph at [him]," saying "come on. You know thats the guy who killed your friend. We both know." He denied Freys description of his identification of appellants photograph and testified that he refused to sign the police form regarding the lineup because he was not sure this was the person that had killed Small, not because he was afraid to leave a record of having identified appellant. Scott also denied having told police officers that he would not testify at the preliminary hearing. At the preliminary hearing, Scott testified that he had not made an identification from the photographic lineup. At trial, he denied that Frey had asked him why he lied and that he had responded, "I did what I had to do." Scott testified at trial that he could not say he saw any of the attackers in the courtroom but that appellants eyes "seem like same eyes that I seen the first shooter."
Scott clearly had an opportunity to view the perpetrators of the shooting, as he saw the man enter the apartment and the man pointed his gun at Scott for some seven seconds. He provided a description of the man that matched that given by Davis, and was particularly impressed with the mans eyes. When Scott saw the composite drawing which had been prepared from Daviss description, he commented that the person whose description had been used for the sketch "must have seen the person with the same eyes I did." At trial, after appellant removed his glasses and stood and Scott looked at him from approximately the same distance as during the shooting, Scott testified that appellants eyes "seem like the same eyes that I seen the first shooter." Asked if he had recognized appellants eyes at the preliminary hearing, Scott said he had never walked up close to appellant before and could not tell from a distance whether his eyes looked familiar.
As with the other witnesses, there was reason to believe Scotts repudiation of his photographic identification was influenced by fear of involvement in the case. The day before Scott was scheduled to testify at the preliminary hearing, Cutkelvin threatened and chased him with a knife, after which Scott tried to arrange for his girlfriend and baby to leave their home because he feared for their safety. The police officers graphic description of Scotts dramatic positive identification of appellant was obviously accepted by the jury and the court.
Appellants argument that the reliability of the witnesses photographic identifications were undermined by their equivocation or repudiation at trial is itself undercut by the fact that the jury was in a position to evaluate the credibility of the witnesses denials. The jury was, of course, instructed on how to view eyewitness identification evidence, including the various factors bearing on the accuracy of such identification (CALJIC Nos. 2.91, 2.92). Defense counsel pointed out to the jury the factors he believed rendered the lineup suggestive-the difference in skin tone of the subjects, and the significance of the orange sweatshirts-as well as the factors that might cause the jurors to question the accuracy of the eyewitness identifications. The prosecutor, on the other hand, argued that the photo lineups were not suggestive, that the witnesses had been able to observe the perpetrator from close proximity and made strong identifications, and pointed out that appellant had changed his appearance since the time of the shooting and that the witnesses had reason to be reticent to testify for fear of retaliation.
We conclude that the photographic lineup was not unduly suggestive; there was evidence that each of these witnesses positively identified appellants photograph in the lineup within days of the shooting; there was no evidence that the witnesses had seen appellants picture or otherwise been influenced before making these identifications; and there was an apparent explanation for the uncertainty, equivocation and repudiation in the witnesses subsequent testimony. We find no error.
V.
Appellant next argues that his convictions must be reversed because the trial court erroneously restricted his cross-examination of Catherine Curry. Curry testified relatively early in the trial, on November 9, 1999. She testified on direct examination that she had been convicted of a felony violation of section 69, resisting or deterring an executive officer, in November 1995. Toward the end of trial, on January 18, 2000, defense counsel sought to recall Curry to have her testify that she was placed on probation as a result of the section 69 conviction, with a condition that she abstain from alcohol use; that she was on probation at the time of the Small shooting and consumed alcohol, but no action was taken against her for violation of her probation; that in December 1996, before the shooting, she was charged with pulling a knife on her boyfriend, Damu Armstead, and in February 1997, after the shooting and "when it became apparent that she was a witness in this case," the charges against her and a motion to revoke her probation were dismissed; that in September 1997 she reported Armstead had pushed her down and he was arrested, but in March 1998 she stated that she had lied; and that she had committed a number of thefts and assaults.
The prosecutor pointed out that Curry had already been impeached with the section 69 conviction and with prior inconsistent statements, and represented that Curry had received no benefit for her cooperation with the police. Regarding the defense theory that Curry had received some benefit for her testimony, the prosecutor stated that there was no reason to believe that law enforcement officials were aware Curry was using alcohol and no evidence that an actual favor was given to Curry, that the probation violation did not constitute a crime of moral turpitude, and that presentation of the issue to the jury would be prejudicial, confusing and time consuming. The 1996 brandishing of a weapon was not a crime of moral turpitude and, because Curry claimed in police reports that she was provoked, would entail a mini-trial. The prosecutor argued that the 1997 report leading to Armsteads arrest had little probative value because domestic violence victims often change their stories to protect loved ones, and would be confusing and an undue waste of time because the jury would need to determine which of Currys statements to the police was true. As to the series of offenses in Currys juvenile record, most were batteries that were not crimes of moral turpitude, or allegations that had not been adjudicated.
In response, defense counsel explained that although he could not prove Curry had received any benefit from the prosecution in exchange for her testimony, he was entitled to introduce evidence that her testimony might have been influenced by her belief that she was receiving such benefits. The defense took the position that the offenses the prosecution viewed as batteries were assaults that were crimes of moral turpitude. The relevance of the evidence regarding Currys report of an assault by her boyfriend was that she was willing to recant on tape to the prosecutor although the incident probably had taken place.
To the courts concern that the impeachment material had not been raised as part of Currys cross-examination, defense counsel explained that Curry had been "an extremely hostile witness" and the defense had made a tactical decision not to offer the evidence at that time. At the end of trial, however, with appellant as the only witness standing to be impeached with Wheeler conduct, the defense felt it necessary to impeach Curry and had a Sixth Amendment right to do so.
People v. Wheeler (1992) 4 Cal.4th 284, 841 P.2d 938.
The court concluded that the defense would be allowed to question Curry about two of the proposed items, imposing this limitation primarily because the request had been made so late in the trial and after Currys original testimony. The evidence regarding Currys probation and dismissal of the brandishing charge, from which the defense sought to draw an inference that Curry felt she was receiving benefits for her testimony, was excluded: The court viewed the inference as "rank speculation" and felt the evidence posed a danger of undue consumption of time and confusion of the jury on an issue with "little or no relevance and no probative value." The court also ruled the evidence of the reported assault by Armstead inadmissible under Evidence Code section 352, explaining that vacillation by victims of domestic abuse was common and it be too time consuming and potentially confusing to fairly present the issue to the jury. The court viewed the juvenile offenses as conduct involving moral turpitude and, balancing the need to present the witness fairly to the jury against the lateness of the request and danger of consumption of time, concluded four of eight proposed incidents could be presented. After additional argument and review of relevant case law, the court revised this ruling to exclude evidence of assaultive conduct and permit evidence of only two of the incidents, one involving a fraudulent check and the other involving an alleged burglary.
The court explained: "I think that as an abstract proposition that the defendant cant use the Sixth Amendment as an excuse for not having to comply with rules regarding the order of trial and other matters related to the conduct of a trial, and that he— Im not convinced that my denial to the defense of any of this evidence at this point would constitute a violation of Mr. Hunters Sixth Amendment rights. [P] I am concerned that by bringing a witness in, the sole purpose for whose testimony at this juncture is to put in impeaching evidence, draws undue attention to that one particular aspect of her testimony. And so I am going to-Im going to disallow most of what the defense wishes to put in here." The court concluded, however, that it would allow some of the evidence, in the interest of serving justice by full disclosure of the facts.
At this point, the defense sought to introduce evidence of the facts underlying the section 69 conviction that Curry admitted on direct examination. The court declined this request, both because such evidence would be impermissible under the law and because the issue was not dealt with during Currys testimony.
Called to testify by the defense, Curry admitted stealing and forging some of her mothers checks in 1994 but denied burglarizing a friends apartment in 1994.
Appellant contends that the courts limitation on his cross-examination of Curry infringed his Sixth Amendment right to cross-examination and confrontation. "The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him. This right is secured for defendants in state as well as federal criminal proceedings under Pointer v. Texas [(1965)] 380 U.S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065 . . . . Confrontation means more than being allowed to confront the witness physically. Our cases construing the (confrontation) clause hold that a primary interest secured by it is the right of cross-examination. [(]Douglas v. Alabama [(1965)] 380 U.S. 415, 418, 13 L. Ed. 2d 934, 85 S. Ct. 1074 . . . [)] Professor Wigmore stated: The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. The opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining immediate answers. 5 J. Wigmore, Evidence § 1395, p. 123 (3d ed. 1940).
"Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness story to test the witness perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness. One way of discrediting the witness is to introduce evidence of a prior criminal conviction of that witness. By so doing the cross-examiner intends to afford the jury a basis to infer that the witness character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony. The introduction of evidence of a prior crime is thus a general attack on the credibility of the witness. A more particular attack on the witness credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is always relevant as discrediting the witness and affecting the weight of his testimony. [(]3A J. Wigmore, Evidence § 940, p. 775 (Chadbourn rev. 1970)[)]. We have recognized that the exposure of a witness motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. [(]Greene v. McElroy [(1959)] 360 U.S. 474, 496, 3 L. Ed. 2d 1377, 79 S. Ct. 1400. . . [)]." (Davis v. Alaska (1974) 415 U.S. 308, 315-317, 39 L. Ed. 2d 347, 94 S. Ct. 1105.)
"[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, 89 L. Ed. 2d 674, 106 S. Ct. 1431 . . . (Van Arsdall), quoting Davis v. Alaska, supra, 415 U.S. 308, 318 . . . .) However, not every restriction on a defendants 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 . . .; see Cooper [(1991)] 53 Cal.3d [771] at p. 817 . . . .) California law is in accord. (See People v. Belmontes (1988) 45 Cal.3d 744, 780, 248 Cal. Rptr. 126, 755 P.2d 310 . . . .) Thus, unless the defendant can show that the prohibited cross-examination would have produced a significantly different impression of [the witnesses] credibility (Van Arsdall, supra, 475 U.S. at p. 680 . . .), the trial courts exercise of its discretion in this regard does not violate the Sixth Amendment. (Cooper, supra, 53 Cal.3d at p. 817 . . . .)" (People v. Frye 1998) 18 Cal.4th 894, 945— 946.)
The court disallowed cross-examination of Curry regarding her probation violation and dismissal of the charges stemming from the December 1996 incident with her boyfriend because it viewed both as speculative, as well as potentially unduly confusing and time consuming. Defense counsel acknowledged there was no actual evidence that Curry had received favors from the prosecution in exchange for her testimony. His argument that he should have been permitted to explore the possibility that Curry was influenced by a perception of having received such benefits, however, is supported by Davis v. Alaska, supra, 415 U.S. 308.
In Davis, the United States Supreme Court found a Sixth Amendment violation where the defense had not been permitted to question the crucial prosecution witness about potential bias in his testimony stemming from his probationary status. In that case, a safe that had been stolen from a bar after closing was located near the witnesss property. The witness, who identified the defendant as one of the men he had talked to in the area where the safe was found, was on juvenile probation for burglarizing two cabins at the time of the offense and at the time of trial. The Court explained: "The accuracy and truthfulness of Greens testimony were key elements in the States case against petitioner. The claim of bias which the defense sought to develop was admissible to afford a basis for an inference of undue pressure because of Greens vulnerable status as a probationer [(]cf. Alford v. United States [(1931)] 282 U.S. 687, 75 L. Ed. 624, 51 S. Ct. 218 . . .[)] as well as of Greens possible concern that he might be a suspect in the investigation.
"We cannot accept the Alaska Supreme Courts conclusion that the cross— examination that was permitted defense counsel was adequate to develop the issue of bias properly to the jury. While counsel was permitted to ask Green whether he was biased, counsel was unable to make a record from which to argue why Green might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial. On the basis of the limited cross-examination that was permitted, the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness or, as the prosecutors objection put it, a rehash of prior cross-examination. On these facts it seems clear to us that to make any such inquiry effective, defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. Petitioner was thus denied the right of effective cross— examination which would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it. [Citation.]" [Citation.]" [(]Brookhart v. Janis [(1966)] 384 U.S. 1, 3, 16 L. Ed. 2d 314, 86 S. Ct. 1245 . . .[)] [(]Smith v. Illinois [(1968)] 390 U.S. 129, 131, 19 L. Ed. 2d 956, 88 S. Ct. 748 . . . [)]." (Davis v. Alaska, supra, 415 U.S. at pp. 317-319 (Davis), fns. omitted.)
Curry was a very important witness in the case, albeit less crucial than the witness in Davis because there were other identifications of appellant. The fact that the defense could not prove the failure to charge a probation violation and dismissal of the brandishing charge against Curry were related to her assistance with the prosecution does not necessarily mean the evidence could not have supported an inference that Curry might have been biased in favor of the prosecution because she hoped for lenient treatment. In this respect, the issue is similar to that in Davis. The strength of the inference to be drawn from the proposed cross-examination, however, was considerably weaker in the present case than in Davis. In Davis, the witness had a clear motive to deflect suspicion from himself, as he was on probation for a similar sort of offense and the location in which the missing safe was found raised the prospect of him coming under suspicion. No similar circumstance is present here. Additionally, Currys strongest contribution to the prosecutions case was her photographic identification of appellant, which occurred within days of the shooting, before the dismissal of the brandishing charges and presumably before it could have been clear whether Curry was going to face charges of probation violation for consuming alcohol. Currys actual trial testimony was more equivocal, and therefore less helpful, to the prosecution, making it less likely she was operating under a bias in favor of the prosecution. It is doubtful that appellants cross-examining Curry on her probationary status and the dismissal of the brandishing charge would have created "a significantly different impression of [her] credibility." (Van Arsdall, supra, 475 U.S. at p. 680; People v. Frye, supra, 18 Cal.4th at pp. 945-946.)
Finally, the defense sought to cross-examine Curry on these matters late in the trial despite having earlier made a tactical decision not to raise them. As the trial court recognized, recalling Curry solely to impeach her on this ground created a risk of the evidence being given excessive weight by the jury, as well as potentially confusing the jury and unduly consuming time. Within the confines of the Sixth Amendment, cross-examination is subject to limitation under Evidence Code section 352 (People v. Quartermain (1997) 16 Cal.4th 600, 623, 941 P.2d 788) and the trial courts decision was not so "arbitrary, capricious or patently absurd" as to constitute an abuse of discretion. (People v. Ochoa, supra, 26 Cal.4th 398, 437-439; People v. Jordan (1986) 42 Cal.3d 308, 316, 228 Cal. Rptr. 197, 721 P.2d 79.)
In any event, if this limitation on cross-examination violated appellants Sixth Amendment rights, we would be required to determine whether the error was prejudicial. (Van Arsdall, supra, 475 U.S. at p. 684.) "The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness testimony in the prosecutions 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 prosecutions case." (Ibid. )
Here, while Currys testimony was obviously important to the case, there were two other positive identifications of appellant from photographic lineups, various witnesses placed appellant in the general vicinity of the shooting, in Koulibalys company, before the shooting, and appellants lies to the police and under oath at his probation revocation hearing strongly undermined the credibility of his defense. Curry admitted having suffered a felony conviction for resisting an executive officer and having stolen and forged her mothers checks, and was questioned about involvement in an alleged burglary. It is clear, beyond a reasonable doubt, that the jury would not have reached a different conclusion as to appellants guilt if Curry had been cross examined about the issues of her probation and dismissal of the brandishing charges.
The trial court refused to allow cross-examination regarding Currys report of having been assaulted by her boyfriend and subsequent retraction of this report because, as indicated above, it did not want to risk a time-consuming examination of side issues. Appellant urges that the issue was significant because of the obvious inference that if Curry filed one false police report she was more likely to have made false statements to the police in this case. He argues that the filing of a false police report is criminal conduct indicating a willingness to falsify, admissible under People v. Wheeler, supra, 4 Cal.4th 284. Under Wheeler, misconduct showing moral turpitude and relevant to a willingness to lie is admissible for impeachment purposes. (Id. at pp. 295-296.) Interestingly, at trial, the defense took a different view of this issue, arguing that Curry probably was in fact assaulted by her boyfriend and the significance of the recantation was her willingness to lie on tape to the police.
One way or the other, Currys differing reports about the assault have some relevance to her credibility. The context in which these reports were made, however, significantly weaken the inference the defense sought to draw-that Curry was generally willing to lie to the police. The fact that Currys report and retraction concerned a matter of domestic violence distinguish them from reports she made as a witness to a murder. Again, there was little risk that cross-examining Curry about the domestic violence report and retraction would have created " a significantly different impression of [her] credibility." (Van Arsdall, supra, 475 U.S. at p. 680; People v. Frye, supra, 18 Cal.4th at p. 945— 946.) As stated above, any error in this limitation on cross-examination was harmless under Chapman v. California (1967) 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.
Finally, the trial court precluded reference to the additional juvenile offenses the defense sought to address in cross-examination because the conduct involved was simple assault and battery, neither of which are impeachable offenses. (People v. Thomas (1988) 206 Cal. App. 3d 689, 694, 254 Cal. Rptr. 15.) At trial, defense counsel acknowledged that if the courts ruling was based on a determination that the facts of the underlying cases demonstrated only simple assaults, rather than assaults with force likely to produce great bodily injury, the ruling was correct. Appellant does not specifically argue on appeal that the offenses were aggravated assaults, but only refers to the trial courts comment that the prosecutor was engaging in "imaginative argument" by downplaying the seriousness of the offenses when the prosecution in Currys case had done precisely the opposite. We find no error in the courts ruling regarding these offenses.
VI.
Appellants next contention is that the trial court erred in allowing him to be impeached with evidence of his April 12, 1994, altercation with Officer Cleary and with his misdemeanor conviction of battery upon a police officer on August 1, 1994. With respect to the April 12 incident, Cleary testified that at around midnight, he observed a car fail to stop at a stop sign on McAllister Street, at Steiner in San Francisco. The officers pulled the car over on Ellis Street at Pierce. Appellant leaned out the drivers door and looked back at the officers, who told him and his passengers to stay in the car. Appellant got out and told the passengers, "Get the fuck out of the car. Fuck him." Ignoring the police directives to get back in, appellant said "run" and the three ran into a housing development. Cleary chased and caught appellant, the two falling in the process. Appellant hit Cleary three times in the face with a closed fist, then kicked Cleary as the officer tried to restrain him and hit Cleary several more times in the head. The struggle lasted for over six minutes, until other officers arrived and assisted in handcuffing appellant. Clearys partner, Aschero, sustained an injury to one of her hands from being kicked by appellant. During the drive to the police station, appellant said to the officers, "Im going to kill you two fucking bitches. Youre not going to live long." The location where the struggle occurred was in front of 1751 Ellis Street.
About this incident, appellant testified that the police officers had followed him for 10 blocks, until he parked in front of his house, then told him to get back into his car. Appellant said, "Man, this is my house. I didnt do nothing wrong." He kept walking and the officer ran up to him and grabbed him in a headlock. The other people in his car got out and ran, but appellant denied having told them to run. Appellant acknowledged that he had a "little tussle" with the officer, trying to get away, and "probably said F You," but denied punching or kicking the officer. He admitted cursing at the officers but denied threatening to kill them.
The evidence of the April 12 incident and the misdemeanor conviction was offered to impeach appellants credibility. Appellant argues it was unnecessary, because other impeachment was sufficient to achieve this purpose, and prejudicial, because it portrayed appellant as having a violent temper and lacking respect for the authority of the police.
Subject to Evidence Code section 352, prior criminal offenses that involve moral turpitude, including misdemeanors, are admissible to impeach a witnesss credibility. (People v. Wheeler, supra, 4 Cal.4th, at pp. 295-296; Cal. Const., Art. 1, § 28(d).) Offenses involving moral turpitude include those in which dishonesty is an element and those evincing a "general readiness to do evil." (People v. Castro (1985) 38 Cal.3d 301, 306, 315, 211 Cal. Rptr. 719, 696 P.2d 111.) "Obviously it is easier to infer that a witness is lying if the felony of which he has been convicted involves dishonesty as a necessary element than when it merely indicates a bad character and general readiness to do evil. Nevertheless, it is undeniable that a witness moral depravity of any kind has some tendency in reason (Evid. Code, § 210) to shake ones confidence in his honesty. We ourselves recognized this in People v. Rist [(1976) 16 Cal.3d 211, 127 Cal. Rptr. 457, 545 P.2d 833], where we said that convictions which are assaultive in nature do not weigh as heavily in the balance favoring admissibility as those convictions which are based on dishonesty or some other lack of integrity. (16 Cal.3d at p. 222.) Not as heavily does not, of course, mean not at all. There is then some basis-however tenuous-for inferring that a person who has committed a crime which involves moral turpitude other than dishonesty is more likely to be dishonest than a witness about whom no such thing is known." (People v. Castro, supra, 38 Cal.3d at p. 315.)
Appellant acknowledges that the offenses at issue here-battery on a police officer ( § 243), threats of death or great bodily injury ( § 422) and resisting an executive officer (§ 69)-have been held to be crimes of moral turpitude. (People v. Lindsay (1989) 209 Cal. App. 3d 849, 857, 257 Cal. Rptr. 529 [ § 243, subd. (c)]; People v. Thornton (1992) 3 Cal.App.4th 419, 424 [ § 422];People v. Williams (1999) 72 Cal.App.4th 1460, 1465 [ § 69].) He argues, however, that the evidence of this prior conduct should have been excluded under Evidence Code section 352 because its probative value was "slight" and its potential for prejudice "enormous." The former point is based on the fact that appellants credibility had been directly impeached in several ways without reference to the conduct at issue: Appellant had admitted lying and suborning perjury at his parole revocation hearing, lying to the police in his initial interviews after the shooting, and having suffered felony convictions in 1994 for possession of narcotics and possession of narcotics for sale. In appellants view, because the prosecution did not need to further impeach his credibility, the probative value of the evidence of appellants batteries and threats was "minuscule." Appellant views the prejudicial effect of the evidence as great because it portrayed appellant as a person of violent character with little respect for the law.
"A trial court may only exclude relevant evidence when its probative value is substantially outweighed by the risk of undue prejudice. (Evid. Code, § 352.) "A trial courts exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice. [Citation.] In other words, discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.]" (People v. Green (1995) 34 Cal.App.4th 165, 182— 183 . . .)" (People v. Chavez (2000) 84 Cal.App.4th 25, 30.)
"No witness including a defendant who elects to testify in his own behalf [is] entitled to a false aura of veracity." (People v. Carpenter (1999) 21 Cal.4th 1016, 1056, 988 P.2d 531, quoting People v. Beagle (1972) 6 Cal.3d 441, 453, 99 Cal. Rptr. 313, 492 P.2d 1.) The trial court in the present case was expressly concerned with this principle. In refusing to allow the prosecution to introduce evidence of an assault with a deadly weapon allegedly committed by appellant in 1988, after explaining its reasons for excluding this evidence, the trial court stated: "In doing this, I will say, Im very concerned, of course, about the record, not creating a false aura of credibility as to Mr. Hunter. [P] And I certainly would say, in that regard, that the prosecution has already elicited a number of damaging admissions of untruthfulness from Mr. Hunter. And that is a factor in my consideration, also, as to what I believe is appropriate in terms of further impeachment of his credibility by his prior offenses or brushes with the law."
A false aura of credibility may be created, of course, not only when no impeachment evidence is presented but when a limited presentation of impeachment evidence leaves a defendant looking better than he or she really is. As one court explained: "In this case, the number of defendants priors (10) is certainly high, which would generally favor the exclusion of at least some of the priors. However, none of these priors are identical or similar to the current offense of first degree murder. Furthermore, impeachment of defendant with only one or two priors would have given his a false aura of veracity because it would suggest that defendant has led a generally legally blameless life, whereas he had not been able to remain crime-free for any significant period of time between 1979 and 1999." (People v. Mendoza (2000) 78 Cal.App.4th 918, 927 [in murder prosecution, defendant impeached with prior convictions for robbery, armed robbery, burglary, vehicle theft]; see also, People v. Muldrow (1988) 202 Cal. App. 3d 636, 646, 248 Cal. Rptr. 891 [prosecution for burglary; impeached with six priors for burglary and attempted burglary]; People v. Johnson (1991) 233 Cal. App. 3d 425, 458-459, 284 Cal. Rptr. 579 [murder prosecution; impeachment with prior murder, aggravated escape, assault with a deadly weapon].)
In the present case, appellant was impeached with conduct directly bearing on his veracity-his lying and suborning perjury at his probation revocation hearing and his lying to the police in his initial interviews. This evidence was obviously highly probative on the issue of appellants credibility. It was, however, conduct directly connected to the present case. Appellants prior conduct involving moral turpitude remained probative on the issue of appellants credibility in a broader context.
The trial court was careful to engage in the full weighing process required under Evidence Code section 352. In addition to the rulings challenged here, the trial court ruled admissible evidence of several controlled substances offenses. It refused, however, to admit evidence of a November 26, 1988, alleged assault with a deadly weapon-because there was some question whether appellant had been involved and it would require an undue amount of time to present the issue to the jury-and evidence of an alleged shooting at an inhabited dwelling on May 14, 1994— because it was too similar to the charged offense and posed too much danger of the jury using the evidence to imply guilt rather than solely as bearing on credibility.
Immediately after Officer Clearys testimony regarding the April 1994 incident, the court instructed the jury: "The sole purpose of this testimony, ladies and gentlemen, is with respect to the defendants credibility. Its not to be considered for any other purpose whatsoever. This entire incident, and all of the testimony that you have heard with respect to it, is to be considered by you only insofar as it may assist you in determining the question of Mr. Hunters credibility and not for any other purpose." At the conclusion of the rebuttal case, the courts instructions to the jury included the instructions that evidence admitted for a limited purpose could not be considered for any other purpose (CALJIC No. 2.09), that the jurors were the only judges of witnesses believability (CALJIC No. 2.20), and that the fact a witness had been convicted of a felony or misdemeanor, or had engaged in past criminal conduct amounting to a misdemeanor, could be considered only for the purpose of determining the believability of the witness (CALJIC Nos. 2.23, 2.23.1).
"The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions." (People v. Callahan (1999) 74 Cal.App.4th 356, 372, quoting People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17, 286 Cal. Rptr. 801, 818 P.2d 84; Marshall v. Lonberger (1983) 459 U.S. 422, 438, fn. 6, 74 L. Ed. 2d 646, 103 S. Ct. 843; People v. Sanchez (1995) 12 Cal.4th 1, 70, 82, 906 P.2d 1129.) The trial court here expressly concluded that it would not be difficult for the jury to follow the limiting instruction as to the evidence of the April 12 and August 1, 1994, incidents. Notably, it reached the opposite conclusion with respect to the evidence of appellant having fired gunshots at an inhabited dwelling (§ 246), as to which the trial court found there was "too much similarity here and too much danger that the jury would use that incident to imply guilt in this case, rather than simply use the incident as bearing on credibility." We find nothing so inflammatory in the evidence of appellants altercations with police officers that the jury would have been unable to follow its instructions to consider the evidence only in assessing appellants credibility (see, Marshall v. Lonberger, supra, 459 U.S. at p. 438, fn. 6), and no abuse of discretion in the trial courts ruling.
VII.
Appellant argues his defense was prejudiced by the prosecutions negligent failure to preserve in evidence the couch upon which Small was sitting when he was shot and by the trial courts refusal to instruct the jury to draw inferences adverse to the prosecution due to this failure. Part of the prosecutions argument at trial was that appellant had fired a .357 revolver toward the couch upon which Small was sitting, as evidenced by the defect in the wooden knob on the arm of the couch, which a prosecution witness testified was "consistent with" having been caused by a bullet, and the trace of wood adhering to a .357 bullet found in the apartment. The defense argued against this conclusion, noting that the prosecutions witness had testified he would have expected to see more extensive damage to the bullet if it had perforated the knob on the couch and that the police probes of the knob did not reveal a hole that went all the way through the knob.
In June 1998, when the case was before Judge Stephens, appellant was unsuccessful in an attempt to have the case dismissed on constitutional grounds related to the delay between his arrest and formal charging, or, in the alternative, to exclude evidence including that based on examination of the couch Denying the motion to dismiss, the court stated that the defense had not established the materiality of the couch, noting that determining which of the people who fired weapons in the apartment more directly contributed to the victims death would not have much legal significance, as the case was no longer a capital one and either person could incur liability to the same extent. The court did, however, exclude "evidence of any attempt by law enforcement officers, or any other purported expert, to estimate the relative height of an assailant, or distance of a shooter from the body of Mr. Small as a result of opinions based on trajectories estimated on the basis of a series of probes put through a couch located in the scene of the crime-a couch that law enforcement officers never impounded."
The motion denied was appellants motion to dismiss for violation of various constitutional rights related to the delay between his arrest and his formal charging. In the alternative, this motion sought exclusion of certain evidence at trial including "any evidence the prosecution intends to introduce based on re-creations or re-examinations of evidence which was not impounded, or kept by law enforcement officers during the period between his arrest and arraignment, most notably a couch on which the victim, Ronnie Small, was allegedly sitting at the time he was shot, a couch which purportedly had bullet holes in it caused during the shooting incident that occurred on January 8/January 9, 1997." In a separate motion, appellant sought exclusion, on grounds of irrelevance or under Evidence Code section 352, of "evidence of any attempt by law enforcement officers, or any other purported expert, to estimate the relative height of an assailant, or distance of a shooter from the body of Mr. Small as a result of opinions based on trajectories estimated on the basis of a series of probes put through a couch located in the scene of the crime-a couch that law enforcement officers never impounded." In response to the latter, the prosecution stated, "Although it is unclear to the People what evidence the defendant is referring to, the People do not intend to present speculative evidence as to the assailants respective heights through reference to bullet holes in the couch in Tara Hendersons apartment."
In pretrial proceedings before Judge Sutro on September 13, 1999, discussing this ruling, defense counsel stated the ruling had been based in part on the fact that the couch had not been impounded; the prosecutor disagreed and stated the motion had been granted without objection because the prosecution did not plan to introduce such evidence or have a basis for doing so.
On December 13, 1999, the defense filed a motion seeking a jury instruction regarding loss of the couch. The proposed instruction provided: "During the presentation of evidence, the court expects you will hear evidence to the effect that a couch which had been in 59 Cole Drive, apartment 14, on January 8 and 9, 1997, was not impounded or taken into evidence by law enforcement investigators during their investigation. Though photographs were taken of the couch, and certain materials were taken from the couch, the couch itself, including its wooden parts, is not available to either party at this time. Further, the couch was never available to the defense because of the sequence of events related to this case. [P] In assessing any evidence pertinent to the couch, and in particular pertinent to the assessment of trajectories or to the description of any damage or marks on the couch, I now instruct you that you may consider that the couch was not impounded or taken into evidence, and the fact that the defense, and/or Office of the District Attorney have not had access to the actual couch during the pendency of this case before this Court. In assessing the reliability of any evidence pertinent to the couch itself, you should take into consideration the fact that neither you, nor the parties in this case, have access to the couch in question. Further according to the evidence available to this Court, it does not appear that the defense ever had access prior to its loss."
The prosecution objected to this request, arguing that the authority upon which the defense relied, People v. Zamora (1980) 28 Cal.3d 88, 167 Cal. Rptr. 573, 615 P.2d 1361, pertained to an instruction given as a sanction for improper destruction of evidence while in the present case there was no wrongdoing by the police. The trial court concluded the instruction would be inappropriate because there was no indication the loss of the couch was due to "conscious wrongdoing on the part of law enforcement" and the loss of the couch gave no particular advantage to either party to the case. When appellant subsequently asserted the failure to give the requested instruction as a basis for his new trial motion, the court denied the motion because of the absence of evidence of wrongdoing by the police.
Appellant asserts that the trial courts reliance on the absence of "conscious wrongdoing on the part of law enforcement" indicates its ruling was based on Arizona v. Youngblood (1988) 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333. In that case, the United States Supreme Court held that "unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." (Id. at p. 58.) Appellant does not argue that there was evidence of bad faith in the present case; he characterizes the prosecutions conduct in failing to preserve the couch as negligent. According to appellant, however, one of the critical reasons Youngblood found no due process violation was that the jury had been instructed that if it found the prosecution had allowed to be lost or destroyed evidence the content or quality of which was in issue, it could "infer that the true fact is against the States interest." (Id. at pp. 54, 59-60.)
The majority opinion in Youngblood, joined by five justices, did not rely upon the jury instruction in reaching its conclusion. The point to which appellant refers was made in Justice Stevenss concurring opinion. (Id. at pp. 59-60.) Thus the majority opinion does not stand for the proposition that failure to preserve evidence potentially useful to the defense, in the absence of bad faith, does not violate due process only if such an instruction is given. In People v. Farnam (2002) 28 Cal.4th 107, 167, our Supreme Court held precisely the opposite: Because there was no showing of bad faith in the failure to preserve evidence in that case, no instructional sanction was required.
In Farnam, the instruction requested by the defense would have stated: "While in the possession of law enforcement, the following items of evidence were either not suitably refrigerated or frozen: carpet samples, sexual assault kit evidence, and semen and/or blood samples. [P] You must take the failure to preserve this evidence as indicating that among the inferences which may reasonably have been drawn from this evidence, those inferences most favorable to the defendant are the more probable." (People v. Farnam, supra, 28 Cal.4th at p. 166, fn. 29.)
The authority actually offered to the trial court, People v. Zamora, supra, also does not aid appellant. Zamora required instructional sanctions where, at the direction of the city attorneys office, police records regarding citizen complaints against police officers accused of using excessive force were wrongfully destroyed. The present case does not involve destruction of evidence in the possession of the police but rather failure to collect or preserve evidence from the scene of the crime.
"As a general matter, due process does not require the police to collect particular items of evidence." (People v. Frye, supra, 18 Cal.4th 894, 943.) ""Law enforcement agencies have a duty, under the due process clause of the Fourteenth Amendment, to preserve evidence that might be expected to play a significant role in the suspects defense. (California v. Trombetta (1984) 467 U.S. 479, 488, 81 L. Ed. 2d 413, 104 S. Ct. 2528 . . .; accord, People v. Beeler (1995) 9 Cal.4th 953, 976, 891 P.2d 153 . . . .) To fall within the scope of this duty, the evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. [Citations.] The states responsibility is further limited when the defendants challenge is to the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant. (Arizona v. Youngblood, supra , 488 U.S. 51, 57 . . . .) In such case, unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law. (Id . at p. 58 . . .; accord, People v. Beeler, supra, 9 Cal.4th at p. 976 . . . .)" [Citation.] (People v. Catlin [(2001)] 26 Cal.4th 81, at pp. 159-160 . . .)." (People v. Farnam, supra, 28 Cal.4th 107,166.) Due process does not impose upon the police "an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution." (Arizona v. Youngblood, supra, 488 U.S. at p. 58.)
Here, there is no indication the couch had any apparent exculpatory value at the time the police failed to impound it; at best, it was evidence which could have been subjected to tests which might have yielded results favorable to the defense. Even at that, any evidence derived by the defense from the couch would not have tended to exonerate appellant but only to undermine the prosecutions attempts to prove appellant fired a particular shot at the couch. Proof that such a shot was fired, however, was not essential to appellants convictions. Regardless of whether appellant fired the shot in question, the evidence demonstrated that he was in the apartment with Koulibaly, holding a gun on the party-goers, when Small was shot.
Appellant correctly points out, of course, that the police in this case did not simply fail to collect evidence, thereby depriving both prosecution and defense of the opportunity to examine it, but failed to collect evidence after subjecting it to examination. The defense was thus deprived of an opportunity to re-examine evidence to which the prosecution had access. If the police violated any duty to preserve the couch after examining it, however, there is no possibility appellant could have been prejudiced. As discussed above, even if the defense had been able to extract evidence from the couch undermining the prosecutions claim that appellant fired the shot in question, this aspect of the prosecutions case was not critical.
VIII.
The trial court instructed the jury that appellant could be convicted of first degree murder on any one of four theories: (1) premeditated and deliberate murder, (2) murder by means of lying in wait, (3) felony-murder, committed during the commission of felony residential burglary, and (4) murder committed during the course of a conspiracy to commit residential burglary and to murder Small. Appellant contends the court erred in instructing on the last two of these theories because the felony-murder doctrine cannot be applied in this case.
The felony-murder rule imputes the requisite malice for a murder conviction to those who commit a homicide during the perpetration of a felony inherently dangerous to human life. " Under well-settled principles of criminal liability a person who kills-whether or not he is engaged in an independent felony at the time— is guilty of murder if he acts with malice aforethought. The felony-murder doctrine, whose ostensible purpose is to deter those engaged in felonies from killing negligently or accidentally, operates to posit the existence of that crucial mental state-and thereby to render irrelevant evidence of actual malice or the lack thereof— when the killer is engaged in a felony whose inherent danger to human life renders logical an imputation of malice on the part of all who commit it. (People v. Satchell (1971) 6 Cal.3d 28, 43, 98 Cal. Rptr. 33, 489 P.2d 1361 . . ., cited by People v. Patterson [(1989)] 49 Cal.3d 615, 626, 262 Cal. Rptr. 195, 778 P.2d 549.)" (People v. Hansen (1994) 9 Cal.4th 300, 308, 885 P.2d 1022.)
In People v. Ireland (1969) 70 Cal.2d 522, 75 Cal. Rptr. 188, 450 P.2d 580, our Supreme Court held that assault with a deadly weapon could not be used as the predicate felony for a murder conviction under the felony-murder rule. "We have concluded that the utilization of the felony-murder rule in circumstances such as those before us extends the operation of that rule beyond any rational function that it is designed to serve. (People v. Washington (1965) 62 Cal.2d 777, 783, 44 Cal. Rptr. 442, 402 P.2d 130 . . . .) To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault-a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law. We therefore hold that a second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged." (People v. Ireland, supra, 70 Cal.2d at p. 539.)
People v. Wilson (1969) 1 Cal.3d 431, 82 Cal. Rptr. 494, 462 P.2d 22 applied Ireland to preclude a felony-murder conviction based on the predicate felony of burglary, where the intent of the burglary was to commit an assault with a deadly weapon upon the victim of the homicide. Wilson held that "a burglary based on intent to assault with a deadly weapon is included in fact within a charge of murder, and cannot support a felony— murder instruction," noting that "only felonies independent of the homicide can support a felony-murder instruction." (Id. at pp. 441-442 and fn. 5.) Similarly, People v. Garrison (1989) 47 Cal.3d 746, 778, 254 Cal. Rptr. 257, 765 P.2d 419, held that burglary with the intent to commit murder cannot support a felony-murder conviction.
In People v. Hansen, supra, 9 Cal.4th at p. 314, the court held that felony— murder can be based on the underlying felony of willfully discharging a firearm at an inhabited dwelling. Hansen described the Ireland merger doctrine as applying to felonies involving assault or assault with a deadly weapon and rejected an expansive view of Irelands "integral part of the homicide" language, which the court viewed as "precluding application of the felony-murder rule for those felonies that are most likely to result in death and that are, consequently, the felonies as to which the felony-murder doctrine is most likely to act as a deterrent (because the perpetrator could foresee the great likelihood that death may result, negligently or accidentally)." (People v. Hansen, supra, 9 Cal.4th at pp. 312-313, 314-315.) Instead, Hansen held that a felony may be used as the basis of a felony-murder conviction if its "use as the predicate felony supporting application of the felony— murder rule will not elevate all felonious assaults to murder or otherwise subvert the legislative intent." (Hansen, at p. 314.) The discharging of a firearm at an inhabited dwelling met this test because this offense was not the basis of most homicides and application of the felony-murder rule to this offense would be "consistent with the traditionally recognized purpose of the second degree felony-murder doctrine— namely the deterrence of negligent or accidental killings that occur in the course of the commission of dangerous felonies." (Id. at p. 315.)
People v. Baker (1999) 74 Cal.App.4th 243, 251, applied the reasoning of this line of cases to find a felony-murder conviction could not be based on the felony of conspiring to commit an assault with a deadly weapon. "The purpose of the felony— murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit. (People v. Wilson, supra, 1 Cal.3d at p. 440.) A person who enters a conspiracy to commit assault with a deadly weapon, like the person who enters a building with an intent to assault his victim with a deadly weapon, is not deterred by the felony-murder rule." (People v. Baker, supra, 74 Cal.App.4th at p. 251.)
In the present case, the prosecution pursued a felony-murder theory based upon the predicate felony of burglary with the intent to falsely imprison the occupants of the apartment. Appellant argued that the false imprisonment was intended only to facilitate the assault and murder of Small and requested a jury instruction making clear that if the intent of the burglary was to assault Small with a deadly weapon or to murder him, the felony-murder doctrine would not apply. The proposed instruction read: "In order to find the defendant guilty of first degree murder based on his commission of a burglary, you must find that the target offense at the time of the burglary was the offense of false imprisonment, as defined in these instructions. If you conclude that at the time of the burglary the defendant specifically intended to commit the crime of murder, or of assault, or assault with a deadly weapon, then you may not return a verdict of first degree murder based on a burglary-murder theory."
The court declined to give this instruction. Instead, the burglary instructions were clarified to state that the jury could find burglary only if the defendant entered the premises "with the specific intent to commit false imprisonment by violence or menace."
The trial court clearly understood that the felony-murder doctrine could not apply in this case if the underlying felony was committed with the intent to commit murder or assault with a deadly weapon. Earlier in the trial, the court had granted appellants motion for a judgment of acquittal on the charged special circumstance of burglary felony-murder (§ 190.2, subd. (a)(17)(G)), finding that the prosecutions argument and all the evidence indicated that the "primary intent and purpose of the invasion of the party was to murder Ronnie Small. And that very clearly what would be incidental to that, the way things were done, would be falsely to imprison the party-goers." The court found no evidence in the prosecutions case that the entry was for any "principal purpose" other than to murder Small.
In closing argument, the prosecutor expressly told the jury that the purpose of the false imprisonment was to facilitate the murder. The prosecutor argued that "part of the intent" in entering the apartment was "controlling that apartment . . . . Part of the intent was to freeze the apartment and the occupants and to prevent them from resisting or getting in their way. That was their intent." In rebuttal, he argued that as long as the jury found the requisite intent, it did not matter if the defendant had other intents as well, concluding: "So if it were the case and it was that they really intended to execute Ronnie Small inside that apartment, that does not relieve them of liability under the felony-murder rule because they entered with the intent, with the specific intent, to commit this crime, false imprisonment by violence or menace. And they had to. That is the only way to control the residence. It is the only way to carry out the crime with any level of security."
Defense counsel objected that this argument misstated the law because if the primary intent of the entry was to murder Small, the jury could not convict on a burglary felony-murder theory. The trial court agreed that the felony-murder doctrine would not apply if the primary intent was to assault or kill Small and that the jury had to be told they could not find burglary felony-murder if they found the "overriding controlling purpose of the entry was to kill or assault Ronnie Small." With the agreement of defense counsel, the prosecutor reiterated for the jury the felony-murder instruction the court had already given, which stated that the jury could "find a residential burglary was committed in this case only on the finding that the underlying felony is false imprisonment by violence and menace."
Appellant contends here that this corrective measure did not inform the jury— as the trial court stipulated the jury should be informed-that it could not rely upon the felony-murder theory if the only purpose of the false imprisonment was to facilitate the assault on Small. We agree.
While the jury was clearly and repeatedly informed that it could utilize the burglary felony-murder theory only if it found the burglary predicated on an intent to commit the offense of false imprisonment, it was expressly told by the prosecutor that the defendant could be liable even if he harbored multiple intents and was never told that he could not be found liable if the primary intent was to commit an assault or murder and the false imprisonment was merely incidental. No evidence in this case supports an inference of any intent in the false imprisonment other than an intent to facilitate the murder. Had there been any purpose for the false imprisonment other than to facilitate the murder, the felony-murder theory would be appropriate, as burglary with intent to falsely imprison would not "elevate all felonious assaults to murder or otherwise subvert the legislative intent." (People v. Hansen, supra, 9 Cal.4th at p. 315.) Where the sole intent behind the false imprisonment is an intent to facilitate an assault with a deadly weapon, however, application of the felony-murder doctrine would not further the recognized goals of that doctrine any more than would application of the doctrine to burglary with intent to commit assault with a deadly weapon: A person who commits burglary, intending to falsely imprison the occupants so as to facilitate the murder of one of them, will no more be deterred by the felony-murder rule than a person who commits burglary with the intent to commit assault with a deadly weapon or murder.
We disagree, however, with appellants assertion that his conviction must be reversed because of this error. As indicated above, one of the prosecutions theories of first degree murder was that the murder was committed by means of lying in wait. (§ 189.) The jury found true the lying in wait special circumstance. As will be discussed in the following section of this opinion, the requirements for proof of lying in wait as a special circumstance are more stringent than the requirements for proof of lying in wait as a theory of first degree murder. (See, People v. Hillhouse (2002) 27 Cal.4th 469, 500.) For present purposes, the critical distinction is that lying in wait as a special circumstance requires proof that the killing was intentional, whereas lying in wait as a theory of first degree murder can be proven where the homicide is with implied malice. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1148-1149.)
"In California, murder is the unlawful killing of a human being or a fetus with malice aforethought. ( § 187, subd. (a).) Malice aforethought may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. (§ 188.) Stated another way, malice is implied when the killing results from an intentional act, the natural consequences of which are dangerous to human life, deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. ([People v. Watson (1981)] 30 Cal.3d [290,] 300.)" (People v. Laws (1993) 12 Cal.App.4th 786, 793-794.)
Here, the jurys true finding on the special circumstance of lying in wait means it found the homicide was intentional. Thus, even if the jury had relied upon the felony-murder theory to initially find appellant guilty of first degree murder, thereby obviating the need to find malice, the special circumstance finding demonstrates the jury necessarily found every element of first degree murder under a lying in wait theory proven beyond a reasonable doubt. A legally erroneous jury instruction does not require reversal where it can be determined from the record that the jury relied upon a correct theory of guilt. (People v. Guiton (1993) 4 Cal.4th 1116, 1130, 847 P.2d 45.)
Respondents harmless error analysis cites People v. Prettyman (1996) 14 Cal.4th 248, 926 P.2d 1013.) Appellant complains that this citation is misplaced because Prettyman discussed the test for ambiguous jury instructions rather than that for instructions stating incorrect legal theories. In Prettyman, the court first concluded the ambiguous jury instructions did not result in federal constitutional error, because there was not "a reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution." (14 Cal.4th at p. 272, quoting Estelle v. McGuire (1991) 502 U.S. 62, 72, 116 L. Ed. 2d 385, 112 S. Ct. 475.) Prettyman went on, however, to determine that the ambiguous instructions were improper under state law, but that the error was harmless under the People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243 test. (Prettyman, supra, 14 Cal.4th at p. 274.)
Appellant argues that the special circumstance finding reveals nothing about the jurys decision to convict appellant of murder because the lying in wait theory of first degree murder serves only to elevate a second degree murder to a first degree murder but does not provide a means to find murder in the first instance. He relies upon the following quotation from People v. Laws, supra, 12 Cal.App.4th at p. 479: "Lying in wait does not elevate every killing to murder of the first degree. Rather, section 189 provides that all murder which is perpetrated by means of lying in wait is murder of the first degree. As the California Supreme Court reiterated in People v. Thomas (1953) 41 Cal.2d 470, 261 P.2d 1 . . .: A "killing" by means of lying in wait is not murder of the first degree unless it is first established that it is murder. Only then can the question arise whether it is murder of the first degree because perpetrated by lying in wait. (Id. at p. 476.) If the killing was not murder, it cannot be first degree murder, and it is immaterial that the defendant was lying in wait. (Id. at p. 479.)"
The issue in Laws was whether first degree murder based on lying in wait required proof that the lying in wait was committed with intent to kill or injure. The court held it did not. Its comments about the role of lying in wait in determining the degree of a murder were part of a discussion of the fact that murder by lying in wait is "not the definitional equivalent of premeditated murder." (People v. Laws, supra, 12 Cal.App.4th at pp. 793-794.) Laws did not involve a situation in which other jury findings demonstrated the jurys necessary conclusions on the elements of a lying in wait theory of first degree murder.
Appellant urges that the theory of first degree murder based on conspiracy to commit burglary and to murder Small should not have been submitted to the jury for the same reasons the theory of burglary felony-murder should not have been submitted. Appellant did not object to this aspect of the instruction in the trial court. We need not determine whether the issue may be raised on appeal, however, as any error in giving this theory of first degree murder to the jury would be harmless for the reasons stated in the text.
IX.
Appellant next urges the special circumstance finding that Smalls murder was committed while lying in wait must be reversed because section 190.2, subdivision (a)(15), as defined by CALJIC No. 8.81.15 is unconstitutional. Appellant maintains the special circumstance violates the requirements of the Eighth Amendment to the United States Constitution because it fails to provide a "meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not." (Godfrey v. Georgia (1980) 446 U.S. 420, 427, 64 L. Ed. 2d 398, 100 S. Ct. 1759) He also argues the special circumstance is not defined with sufficient definiteness to inform ordinary people what conduct is prohibited or in a manner that does not encourage arbitrary and discriminatory enforcement. (Kolender v. Lawson (1983) 461 U.S. 352, 75 L. Ed. 2d 903, 103 S. Ct. 1855.)
Section 190.2, subdivision (a)(15), was amended, effective March 1, 2000, to change the language of the special circumstance from "the defendant intentionally killed the victim while lying in wait" to "the defendant intentionally killed the victim by means of lying in wait." (People v. Michaels (2002) 28 Cal.4th 486, 516; Stats.1998, ch. 629, enacted as Prop. 18, approved by voters, Prim. Elec. (Mar. 7, 2000) eff. Mar. 8, 2000.) As appellant was tried and convicted before the effective date of the amendment, we are concerned in this case with the language "while lying in wait."
Respondent maintains appellant lacks standing to challenge the special circumstance because the prosecution did not seek the death penalty in this case. Respondents argument is that the function of special circumstances is only to ensure that a defendant convicted of murder will not be unconstitutionally sentenced to death, not to ensure he or she will not be unconstitutionally sentenced to life in prison without possibility of parole. In support of this argument, respondent cites cases discussing the uniqueness of the death penalty. (People v. Bacigalupo (1993) 6 Cal.4th 457, 465, 862 P.2d 808; Harmelin v. Michigan (1991) 501 U.S. 957, 995, 115 L. Ed. 2d 836, 111 S. Ct. 2680.) Special circumstances also serve, however, to define the class of defendants for whom the Legislature has determined life imprisonment without possibility of parole to be the appropriate penalty. Having been sentenced in accordance with this scheme, appellant has standing to challenge its constitutionality just as he would have standing to challenge the constitutionality of any sentence he received. Harmelin rejected a claim that a mandatory sentence of life imprisonment without possibility of parole violated the Eighth Amendment, but it did not hold the defendant lacked standing to make the challenge.
The first of appellants contentions, that the lying in wait special circumstance violates the Eighth Amendment, has been repeatedly rejected by the California Supreme Court. In People v. Gutierrez, supra, 28 Cal.4th 1083, 1148-1149, a unanimous court explained: "Defendant contends the special circumstance of lying in wait is unconstitutional because there is no significant distinction between the theory of first degree murder by lying in wait (i.e., one of the theories of the Stopher murder) and the special circumstance of lying in wait, and that the special circumstance therefore fails to meaningfully narrow death eligibility. We have repeatedly rejected the same contention with respect to analogous facts and circumstances-see, e.g., People v. Crittenden (1994) 9 Cal.4th 83, 155, 885 P.2d 887, . . .; People v. Sims [(1993)] 5 Cal.4th [405,] 434, . . .; People v. Roberts (1992) 2 Cal.4th 271, 322— 323, 826 P.2d 274, . . .; People v. Wader (1993) 5 Cal.4th 610, 669, 854 P.2d 80, . . .; People v. Edwards (1991) 54 Cal.3d 787, 824, 819 P.2d 436, . . .; People v. Edelbacher [(1989)] 47 Cal.3d [983,] 1023, . . .; People v. Morales (1989) 48 Cal.3d 527, 557-558, 257 Cal. Rptr. 64, 770 P.2d 244, . . .-and do so again here.
"Murder by means of lying in wait requires only a wanton and reckless intent to inflict injury likely to cause death. (People v. Ruiz (1988) 44 Cal.3d 589, 614, 244 Cal. Rptr. 200, 749 P.2d 854 . . .; People v. Atchley (1959) 53 Cal.2d 160, 175, 346 P.2d 764 . . . .) (People v. Webster (1991) 54 Cal.3d 411, 448, 285 Cal. Rptr. 31, 814 P.2d 1273, . . .) In contrast, the lying-in-wait special circumstance requires an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage. . . . (People v. Morales, supra, 48 Cal.3d at p. 557, . . .; People v. Carpenter [supra] 15 Cal.4th 312, 935 P.2d 708, [at p. 388], . . .; People v. Sims, supra, 5 Cal.4th at p. 432, . . .) Furthermore, the lying-in-wait special circumstance requires that the killing take place during the period of concealment and watchful waiting, an aspect of the special circumstance distinguishable from a murder perpetrated by means of lying in wait, or following premeditation and deliberation. (People v. Edelbacher [, supra,] 47 Cal.3d 983, 1022, 254 Cal. Rptr. 586, 766 P.2d 1 . . . .) (People v. Sims, supra, 5 Cal.4th at p. 434, . . .)
"The distinguishing factors identified in Morales and Sims that characterize the lying-in-wait special circumstance constitute clear and specific requirements that sufficiently distinguish from other murders a murder committed while the perpetrator is lying in wait, so as to justify the classification of that type of case as one warranting imposition of the death penalty. (People v. Sims, supra, 5 Cal.4th at p. 434, . . .)"
Appellants argument here is based on views expressed by certain California Supreme Court justices in dissenting opinions over the years. (People v. Ceja (1993) 4 Cal.4th 1134, 1147, 847 P.2d 55 (dis. opn. of Kennard, J.); People v. Morales, supra, 48 Cal.3d at p. 575 (dis. opn. of Mosk, J.); People v. Webster, supra, 54 Cal.3d at pp. 463-468 (dis. opn. of Broussard, J.).) We are constrained to follow the majority opinions of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal. Rptr. 321, 369 P.2d 937.)
Appellants only elaboration of his second argument is that the special circumstance of lying in wait under 190.2, subd. (a)(15) encourages arbitrary and discriminatory enforcement because it is indistinguishable from non-capital first degree murder by means of lying in wait ( § 189). As evident from People v. Gutierrez, supra, it is the view of our Supreme Court that lying in wait first degree murder and the special circumstance of lying in wait are meaningfully distinguishable.
The jury instructions given in this case pointed to the differences between the two lying in wait findings. The jury was instructed that "murder which is immediately preceded by lying in wait is murder of the first degree. [P] The term lying in wait is defined as a waiting and watching for an opportune time to act, together with the concealment by ambush or some other secret design to take the other person by surprise, even though the victim is aware of the murderers presence. [P] The lying in wait need not continue for any particular period of time provided its duration is such as to show a state of mind equivalent to premeditation or deliberation." It was subsequently instructed: "If you find the defendant in this case guilty of murder of the first degree, you must then determine if the following special circumstance is true or not true: Murder while lying in wait. . . . To find that the special circumstance, referred to in these instructions as murder while lying in wait, is true, each of the following facts must be proved: [P] One, the perpetrator intentionally killed the victim; and [P] Two, the murder was committed while the perpetrator was lying in wait. [P] The term while lying in wait within the meaning of the law of special circumstances is defined as a waiting and watching for an opportune time to act, together with a concealment by ambush or by some other secret design to take the other person by surprise, even though the victim is aware of the murderers presence. [P] The lying in wait need not continue for any particular period of time, provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation. [P] Thus, for a killing to be perpetrated while lying in wait, both the concealment and watchful waiting, as well as the killing, must occur during the same time period, or in an uninterrupted attack commencing no later than the moment concealment ends. [P]If there is a clear interruption separating the period of lying in wait from the period during which the killing takes place so that there is neither an immediate killing nor a continuous flow of the uninterrupted lethal events, the special circumstance is not proved. [P] A mere concealment of purpose is not sufficient to meet the requirement of concealment set forth in this special circumstance. However, when a perpetrator intentionally murders another person, under circumstances which include, one, a concealment of purpose; two, a substantial period of watching and waiting for an opportune time to act; and, three, immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage, the special circumstance of murder while lying in wait has been established." (Italics added.)
X.
Appellant challenges the constitutionality of the standard jury instructions on reasonable doubt, CALJIC No. 2.90, and on circumstantial evidence, CALJIC No. 2.01 and CALJIC No. 2.02. He argues that CALJIC No. 2.90 tends to dilute the federal constitutional standard of proof beyond a reasonable doubt by failing to define the term "abiding conviction." The circumstantial evidence instructions, he maintains, both dilute the standard of proof beyond a reasonable doubt and create a mandatory conclusive presumption of guilt upon the jurys finding that an interpretation of the evidence unfavorable to the defense is reasonable.
Putting aside the question whether appellants failure to object to these instructions in the trial court bars him from raising these claims on appeal, and as appellant recognizes, these issues have been repeatedly resolved adversely to appellants position. The constitutionality of CALJIC No. 2.90 has been upheld by every appellate district and by the Ninth Circuit Court of Appeals. (People v. Hearon (1999) 72 Cal.App.4th 1285, 1286-1287 and cases cited therein; Lisenbee v. Henry (9th Cir. 1999) 166 F.3d 997, 999-1000.) We find no reason to depart from these decisions. Challenges like appellants to CALJIC Nos. 2.01 and 2.02 have been rejected by the California Supreme Court (People v. Hughes (2002) 27 Cal.4th 287, 345; People v. Millwee (1998) 18 Cal.4th 96, 160, 954 P.2d 990; People v. Crittenden, supra, 9 Cal.4th at p. 144.) No further discussion of these issues is necessary.
XI.
Appellant next argues that CALJIC No. 2.90 violates his federal constitutional right to equal protection of the laws because it fails to provide an adequate standard for determining whether the prosecution has met its burden of proof. This argument is based on the United States Supreme Courts decision in Bush v. Gore (2000) 531 U.S. 98, 148 L. Ed. 2d 388, 121 S. Ct. 525.)
CALJIC No. 2.90 provides as follows: "A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt. [P] Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge." (See, § 1096.)
We consider this contention despite appellants failure to raise it in the trial court. "Section 1259 provides in relevant part: The appellate court may . . . review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby." (People v. Harris (1981) 28 Cal.3d 935, 956, 171 Cal. Rptr. 679, 623 P.2d 240, italics added.) Additionally, Bush v. Gore, supra, upon which appellant bases his equal protection challenge, was not decided until after appellants trial.
In Bush v. Gore, the United States Supreme Court reversed the Florida Supreme Courts order for a recount in the presidential election of 2000. The state court had defined a "legal vote" as "one in which there is a "clear indication of the intent of the voter."" (531 U.S. at p. 102.) The United States Supreme Court found that the "intent of the voter" standard lacked "specific standards to ensure its equal application" and that "formulation of uniform rules to determine intent based on these recurring circumstances is practicable and . . . necessary." (Id. at pp. 105— 106.) Appellant argues that, in light of the importance attached by Bush v. Gore to the right to equal protection in voting, the more fundamental right to be free from "incarceration resulting from arbitrary and unguided application of the reasonable doubt standard" requires a better definition of the standard.
We cannot agree. The per curiam opinion in Bush v. Gore was quite limited: The problem it confronted was interpretation of voters intent from ballot cards that had been inadequately perforated by the voter, leaving only an indentation or a hanging chad rather than a complete perforation, with standards for determining the voters intent varying between counties and between recount teams. (531 U.S. at pp. 105-107.) Bush v. Gore concluded that the "recount process, in its feature here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instances of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." (Id . at p. 109.)
The Court thus limited its holding even within the context of equal protection challenges to election processes, let alone as applicable in a totally different context. The context of the Bush v. Gore equal protection challenge differs markedly from that of the reasonable doubt instruction. As the Bush v. Gore opinion recognized, the issue there concerned standards for interpreting physical marks on a physical object, not a less tangible thought process or the evaluation of witnesses credibility. The Court stated: "The law does not refrain from searching for the intent of the actor in a multitude of circumstances; and in some cases the general command to ascertain intent is not susceptible to much further refinement. In this instance, however, the question is not whether to believe a witness but how to interpret the marks or holes or scratches on an inanimate object, a piece of cardboard or paper which, it is said, might not have registered as a vote during the machine count. The factfinder confronts a thing, not a person. The search for intent can be confined by specific rules designed to ensure uniform treatment." (Id. at p. 106.)
Contrary to appellants assertion, the concept of reasonable doubt is not so readily definable by reference to specific rules. Appellant notes Justice Stevenss dissent, which stated: "And there is no reason to think that the guidance provided to the factfinders, specifically the various canvassing boards, by the intent of the voter standard is any less sufficient-or will lead to results any less uniform-than, for example, the beyond a reasonable doubt standard employed every day by ordinary citizens in courtrooms across this country." (531 U.S. at pp. 123, 125, fn. 3, dis. opn. of Stevens, J.) Appellant characterizes this passage as noting that the majoritys decision "raise[d] significant equal protection issues in other areas, including that of the reasonable doubt standard." Justice Stevenss remarks, however, were made in the course of arguing that the 2000 presidential election in Florida was not an occasion requiring "federal judicial intervention in state elections." We read the dissent as using the reasonable doubt instruction as an example of a standard sufficient despite the absence of further definition.
Appellant urges that the standard of reasonable doubt could be refined by informing juries of the lesser standards of proof-preponderance of the evidence and clear and convincing evidence-and comparing the beyond a reasonable doubt standard as requiring a greater quantum of proof. We are not convinced that such a comparison would assist the jury in understanding the concept of reasonable doubt, as the definitions of "preponderance of the evidence" and "clear and convincing evidence" do not inform a jury how to determine whether a doubt is reasonable.
As Justice Stevens noted in his Bush v. Gore dissent, "the beyond a reasonable doubt standard is a requirement of due process, but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so." (531 U.S. at p. 125, fn. 3, fn. 3, quoting Victor v. Nebraska (1994) 511 U.S. 1, 5, 127 L. Ed. 2d 583, 114 S. Ct. 1239.) "So long as the court instructs the jury on the necessity that the defendants guilt be proved beyond a reasonable doubt, see Jackson v. Virginia, 443 U.S. 307, 320, n. 14, 61 L. Ed. 2d 560, 99 S. Ct. 2781, . . . (1979), the Constitution does not require that any particular form of words be used in advising the jury of the governments burden of proof. Cf. Taylor v. Kentucky, 436 U.S. 478, 485-486, 56 L. Ed. 2d 468, 98 S. Ct. 1930, . . . (1978). Rather, taken as a whole, the instructions [must] correctly convey the concept of reasonable doubt to the jury. Holland v. United States, 348 U.S. 121, 140, 99 L. Ed. 150, 75 S. Ct. 127, . . . (1954)." (Victor v. Nebraska, supra, 511 U.S. at p. 5.)
CALJIC No. 2.90 has repeatedly been held to provide a sufficient definition of the concept and sufficient standards for jurors to judge whether the prosecution has met its burden in a criminal case. Indeed, the many published opinions which have upheld CALJIC No. 2.90 against due process challenges reject the fundamental premise of appellants argument here, that the instruction does not sufficiently define reasonable doubt. In People v. Aguilar (1997) 58 Cal.App.4th 1196, 1208, the court rejected the argument that CALJIC No. 2.90 "leaves the jury without guidance as to the level of persuasion the prosecution must attain to satisfy its burden of proof beyond a reasonable doubt." Similarly, People v. Light (1996) 44 Cal.App.4th 879, 884, rejected the argument that CALJIC No. 2.90 failed to provide the jury with "guidance as to the level of certainty to which it must be persuaded" and therefore allowed the jury to convict on a lesser standard. In People v. Hurtado (1996) 47 Cal.App.4th 805, 815, the court rejected the argument that "defining reasonable doubt in terms of an abiding conviction does not provide an adequate or identifiable standard and may be confused with the clear and convincing evidence standard." People v. Tran (1996) 47 Cal.App.4th 253, 262, held that "in the context of the complete instruction, the use of the phrase abiding conviction, as a conviction which will last over time, adequately encompasses the appropriate depth or intensity of the jurys certainty and satisfies the requirements of due process."
CALJIC No. 2.90 meets the test of constitutionality of both the California and United States Supreme Courts. (Victor v. Nebraska, supra, 511 U.S. at pp. 14-15; People v. Freeman (1994) 8 Cal.4th 450, 504, 882 P.2d 249.) Bush v. Gore simply fails to support appellants challenge.
XII.
Appellant additionally argues the trial court erred in instructing the jury pursuant to CALJIC No. 17.41.1. This instruction provided: "The integrity of a trial requires that jurors, at all times during their deliberations, conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on penalty or punishment, or any other improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation."
Appellant argues that this instruction is unconstitutional in that it compromises the privacy of jury deliberations and discourages jurors candid exchange of views, as well as that it is an impermissible anti-nullification instruction. These arguments were recently rejected by the California Supreme Court. (People v. Engelman (2002) 28 Cal.4th 436, 439-440.) Although Engelman directed that CALJIC No. 17.41.1 not be given in future trials because it creates "a risk of unnecessary intrusion on the deliberative process" (id. at p. 441), the court upheld the constitutionality of the instruction and found no error in a case in which it had been given. (Id. at p. 449.)
XIII.
Appellants final contention is that his convictions must be reversed due to the cumulative effect of errors at his trial, especially because the various errors are "interlocking." He relies upon People v. Hill (1998) 17 Cal.4th 800, 952 P.2d 673, in which the court found that multiple errors at trial "created a negative synergistic effect, rendering the degree of overall unfairness to defendant more than that flowing from the sum of the individual errors." (Id. at p. 847.) In Hill, the errors at trial were pervasive, including "constant and outrageous misconduct" by the prosecutor, allowing the court bailiff to continue his duties after testifying against the defendant and failing to instruct the jury not to give his testimony greater weight than that of another witness, and serious instructional error. (Id. at pp. 844-847.)
The situation in the present case is not similar. We have rejected most of appellants claims of error. As to the few errors we have found, or assumed for the sake of argument, the absence of prejudice is so clear that, even in combination, there is no question of unfairness in appellants trial.
By separate order dated May 20, 2003, we granted an order to show cause on appellants related petition for writ of habeas corpus (A101109).
We concur: Haerle, J. and Ruvolo, J.