Opinion
F071777
01-04-2018
THE PEOPLE, Plaintiff and Respondent, v. DESHAWN MARQUES ROBERTS, Defendant and Appellant.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF154248A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge. Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
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Deshawn Marques Roberts (defendant) stands convicted, following a jury trial, of premeditated attempted murder in which a principal intentionally and personally discharged a firearm, proximately causing great bodily injury (Pen. Code, §§ 187, subd. (a), 189, 664, 12022.53, subds. (d) & (e)(1); count 1), permitting another person to discharge a firearm from a vehicle (§ 26100, subd. (b); count 2), being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 3), carrying a concealable firearm in a vehicle while an active participant in a criminal street gang (§ 25400, subd. (c)(3); count 4), and being an active participant in a criminal street gang (§ 186.22, subd. (a); count 5). Counts 1 through 3 were found to have been committed for the benefit of or in association with a criminal street gang. (§ 186.22, subd. (b)(1).) Defendant was sentenced to a total unstayed prison term of life with the possibility of parole after seven years plus 25 years to life and ordered to pay various fees, fines, and assessments.
All statutory references are to the Penal Code unless otherwise stated.
In our original opinion, we held: (1) The prosecutor did not commit prejudicial misconduct; (2) Defendant is not entitled to reversal on the ground of trial court bias; and (3) Defendant's statements to police were properly admitted. Accordingly, we affirmed. We subsequently granted rehearing to determine whether the amendment to section 12022.53, enacted by Senate Bill No. 620 (Stats. 2017, ch. 682, § 2) and effective January 1, 2018, applies to defendant. The Attorney General concedes that it does. Accordingly, we remand the matter for further proceedings with respect to that enhancement, but otherwise confirm our original holdings.
FACTS
In light of the issues on appeal, we omit most of the gang evidence.
I
PROSECUTION EVIDENCE
According to Bakersfield Police Officer Gavin, a member of the Special Enforcement Unit (also known as the gang unit), the East Side Crip and Country Boy Crip criminal street gangs in Bakersfield are rivals. The Hollywood Market, at Shellmacher Avenue and East Planz Road, is a well-known hangout of Country Boy Crips. East Side Crips often go into Country Boy Crip territory — specifically the Hollywood Market — to attack rival gang members. In Gavin's opinion, defendant was an active member of the East Side Crips in April 2014, as was Marlon Burch.
At approximately 6:48 p.m. on April 2, 2014, the Bakersfield Police Department received multiple 911 calls reporting shots fired and somebody wounded in front of the Hollywood Market. The victim was Jerome Johnson, a Country Boy Crip. Johnson remembered hearing about seven shots. He saw a black pistol come out of the front passenger side window of a silver car that stopped in the intersection. The person holding the gun was an African-American male.
At trial, Johnson denied ever being a member of the Country Boy Crips. In January 2014, however, he admitted membership to Officer Escobedo.
Johnson sustained a through-and-through gunshot wound to the left side. He told Officer Hernandez at the scene that the front passenger, who shot him, was a Black male in his mid 20's, with short, wavy, black hair. He told Hernandez he could not provide any information about anybody else in the vehicle.
At trial, Johnson testified defendant was not involved. Gavin explained that being labeled a snitch is one of the worst things that can befall a gang member. Snitching is when one talks to police and provides information, or testifies against a member of one's own or a rival gang.
Douglas Randle was across the street from the market at the time of the shooting. He saw a hand holding a gun come out of the front passenger window of a gray vehicle, then he heard around three shots and started running. He described the vehicle to police as a newer model Chevrolet Impala, gray or silver four door, no tint, and stock in appearance.
Store video showed a silver vehicle drive by, going north on Shellmacher and turning right on East Planz. Two minutes later, the car drove past again, the shooting occurred, and the car sped off.
Three spent Winchester brand .40-caliber Smith and Wesson shell casings were found in the roadway adjacent to Johnson's location when he was shot. A bullet fragment was recovered from the stucco wall of the market.
To find the vehicle, Escobedo visited locations where East Side Crips were known to gather. About 4:30 p.m. on the day following the shooting, he and his partner went to Yokuts Park, a secluded area off Truxton in Bakersfield. There, they saw approximately 40 people clustered around one bench. There was music playing, and many of the people were wearing royal blue, a color associated with the East Side Crips. Escobedo, who was assigned to the gang unit, recognized one of the people as a known East Side Crips member he personally had contacted. Backed into a stall in the parking lot was an Impala that looked like the one Escobedo had seen on the store surveillance video. In the back seat was another East Side Crip member Escobedo recognized.
Escobedo drove into a second parking lot to check the vehicles in that area. As he returned, he saw the Impala accelerating toward Truxton. Escobedo followed as the vehicle wove in and out of traffic. Eventually, it made an illegal turn into a strip mall parking lot, and Escobedo initiated a traffic stop. Defendant was the driver. He was able to provide identification, but not a valid driver's license. Although Escobedo said only that he was stopped for traffic violations, defendant appeared unduly nervous and his hands were shaking as he handed Escobedo his identification.
Because defendant lacked a driver's license, Escobedo impounded the vehicle. Defendant produced a rental agreement stating the car had been rented by his girlfriend, Nicole. Prior to it being towed, an inventory search was conducted. A spent Winchester brand, .40-caliber Smith and Wesson shell casing was wedged between the driver's seat and the center console. At the crime lab, a second shell casing of the same brand, type, and caliber was found under the front passenger's seat. Subsequent testing showed the two shell casings found in the car, as well as the three shell casings found at the scene of the shooting, were fired from the same Glock semi-automatic firearm.
Defendant, who was under arrest for being an unlicensed driver, was transported to the police station for questioning. Prior to his being placed in the patrol car, he was searched. His cell phone was removed from his pocket and turned over to Sergeant King and Detective Yoon, the detectives who interviewed him.
During the first portion of the interview, defendant denied being involved in the shooting and said his vehicle was not there. He explained the car was rented by his girlfriend in San Diego, and he drove it to Bakersfield on Tuesday, April 1, 2014, in order to take his daughter to a medical appointment in Los Angeles. While in Bakersfield, he was staying with Danielle Johnson, a friend of his whose apartment was just off Belle Terrace. On the day of the shooting, he took a family member to school. His daughter's mother then asked if he could pick up his daughter from school and bring her home. Defendant brought his daughter to her mother's house, which was right across the street from the Elks Lodge. He then spent time running errands and going out to eat with his daughter's mother and members of her family. He ended up back at Danielle Johnson's residence around 7:00 or 8:00 that evening. Just before his arrest, he was at a barbecue in the park with his cousin, Marlon Burch. Defendant said he let Danielle Johnson drive the car to the store the morning of his arrest, but other than that, defendant was the only person to drive it during his time in Bakersfield. He denied owning a firearm or ammunition or that a firearm had been in his car. He did not know why there would be shell casings in the car. He did not check it before leaving San Diego. He denied being involved in the shooting, being in the area of the market, or that his car was in the area. Defendant maintained his denial even when told the OnStar feature on the car would allow the detectives to learn where the car had been.
A video recording of the interview was played for the jury.
There was a break in the interview. Defendant was escorted to a holding cell for about 90 minutes while, he was told, officers were showing photographs of defendant and Burch to witnesses. At the outset of the second portion of the interview, King explained that he could not promise any leniency but that, if the detectives had no reason to book defendant on new charges, they could book him on the misdemeanor charge on which he had been arrested, or there was a possibility he could be cited and released. Defendant then said he had left a part out regarding the shell casing in the car. When defendant brought his daughter's mother home from Panda Express, he saw Burch. Burch asked to use the car. Defendant asked what he was going to do and Burch said " 'homies talking about - they're saying going out there.' " Defendant was reluctant, but Burch grabbed the keys and left. Defendant saw someone named Mokim or Moken, who was known as Maniac, get in the car with Burch. Burch was driving. Burch returned alone and told defendant what happened. Defendant was angry with Burch. Burch said the gun was at the home of Paul Evans, who was known as Blue. Later that night, Burch told defendant he was the shooter, and that he went to a store in "the country" and was aiming for "anybody that was out there."
Defendant was offered food, water, the bathroom, and a chance to stretch out. There was no interrogation in the holding cell. If defendant asked a question, however, King answered.
Defendant showed King the location on a map.
Defendant explained that the only reason he was at the park was to get the car. King noted he had read defendant's text messages, and that they talked about the car being hot and how defendant was trying to get Danielle Johnson to trade cars with him. Defendant explained that even though he was not involved in the shooting, he was trying to get out of the situation in which Burch had put him and his vehicle. King said they were serving a warrant on defendant's phone, and that GPS (global positioning system) on the phone would show defendant's whereabouts. Defendant said his phone was not going to show up in the area of the market at the time of the shooting.
There was another break in the interview, lasting slightly more than two hours. At the outset of the third portion of the interview, King said they had talked to the district attorney's office, but that the cite-and-release option was going to come down to what defendant knew and what information he could provide. After obtaining defendant's address in San Diego, King asked about "the CSUB shooting." This was a shooting that took place in a college parking lot in 2009 or 2010, in which a fight broke out, and a student was caught in the crossfire and shot and killed. Although defendant was never a suspect, Burch was a person of interest. Defendant said he was there, but left and returned. On his way back, he saw Burch, who had been beaten. Defendant got Burch into defendant's truck and took him home. Burch said he was jumped by some people from "[t]he country." He gave their "hood names." King indicated he needed better information.
Defendant again was offered water, food, and the bathroom, as well as a chance to "stretch out." There was no interrogation in the holding cell.
In reality, the detectives never spoke to the district attorney's office. King explained this was a "ruse and . . . a tactic" to try to get more information from defendant concerning this and other shootings in which Burch may have been involved.
After further discussion of the CSUB shooting, Yoon advised defendant that detectives now had his cell phone records and locations. Defendant asked if Yoon was saying his GPS showed he was in the area. Yoon said they were asking him, but they already knew the answer. Yoon told defendant to "[c]ut the crap," and asked if he was wrong in saying defendant was driving the vehicle and took Burch to commit the shooting.
After more urging by Yoon to tell the truth, defendant said Burch took defendant to where Burch got the gun. Defendant said he would show detectives where if they could work with him. Yoon said they could not promise anything, but that he could talk to the district attorney and say defendant was willing to work something out. He could not tell the district attorney to trust defendant if defendant was lying to Yoon, however. Moreover, if the matter went to trial and jurors saw defendant had been lying to the police for hours, they would conclude he was a liar.
Defendant then admitted he was the driver. He came to Bakersfield not because a boy was recently killed, but because of his daughter's medical problems and appointment. Before the shooting, he and Burch went to where Blue handed Burch the gun, which was a black nine-millimeter or .40-caliber semiautomatic. Burch, who was in the front passenger seat and the only person in the car other than defendant, then told defendant to go to the market. Once there, Burch "shot." Defendant and Burch discussed what was going to happen before they went. It was "dumb" to use defendant's car, but it was what was available.
Burch fired "a few times," but defendant did not know the exact number. He did not see anybody go down, as he was facing forward. After the shooting, he and Burch fled. Burch returned the gun to Blue, then they went to the house of the mother of defendant's daughter, by the Elks Lodge, and then to Burch's house and some other places. Defendant did not know why Burch wanted to do a shooting in "the country" as opposed to the west side or somewhere else. Burch kept wanting to go, and defendant "just gave in." Defendant did not recall anyone from the car yelling anything either before or after Burch fired. Burch bragged about it when they saw it on the news.
II
DEFENSE EVIDENCE
Defendant testified that he moved from Bakersfield to San Diego early in 2013, in order to change his environment and get away from gang violence. Once in San Diego, he began taking courses at a community college. He frequently visited Bakersfield, because his youngest daughter had a bad case of asthma and the child's mother could not provide her with transportation to the specialist she needed in Los Angeles.
Defendant had family members and friends who were gang members in Bakersfield. He associated with them, but he was never a gang member. In 2005, he had "G Code" tattooed on his hand. He did it to be "cool" and fit in with his friends and some of his brothers.
Defendant was aware members of the Spoony G Crips, a subset of the East Side Crips, used "G Code." To defendant, however, it simply meant the code of silence, i.e., not talking to law enforcement. It had nothing to do with a gang.
On April 2, 2014, Burch — defendant's cousin — came to defendant around 6:25 p.m., after defendant returned to his girlfriend's house from buying food at Panda Express. There was a car wash across the street from the Elks Lodge for a 14-year-old who had been shot and killed. Defendant had planned to go with Burch to a candlelight vigil for the boy. Burch said he was going to do something and wanted to use defendant's car. Defendant thought he meant pick up women, but he said he would think about it because Burch did not have a license. Burch, who was alone, said nothing about shooting anyone or obtaining a firearm.
Burch took defendant's car keys off the table when defendant went inside the house to get a beer. By the time defendant came back out, Burch was driving off. Another man was in the car with him. Burch returned about 25 or 30 minutes later. He was alone. Defendant asked where he had gone. Burch said he "went to go bust." Defendant called him crazy, and Burch left.
That evening, defendant was watching the news and saw there had been a shooting at the Hollywood Market. He received information that Burch was bragging about the shooting, and he confronted Burch. Burch admitted what he had done. Defendant was upset and told Burch he had put defendant "in harm's way." When defendant asked why he would do something like that, Burch replied that he "had to do what [he] had to do."
Because of the position in which Burch had placed him, defendant sought to distance himself from the vehicle. To this end, he texted a friend and asked if he could switch cars with her. She was still at work, however. The next morning, he loaned the car to Tyrone Lindsay. That afternoon, he went to Yokuts Park, where there was a birthday party for a member of the East Side Crips, to pick up the vehicle. He did not try to evade police when they sought to pull him over.
When defendant gave his statement to detectives, he first thought King and Yoon were trying to help him. He knew why they were questioning him, and he was afraid. He waived his rights, however, because he did not do anything and felt he had nothing to hide. He told them he first learned of the shooting from the news, but denied knowing anything else because he was nervous. He told the detectives he had his cell phone with him and was making calls at or about the time of the shooting, which time the detectives told him. Defendant did not tell the detectives the truth, because he was protecting himself and his family from the "harm that . . . Burch put [him] in."
The call log on defendant's cell phone showed an incoming call at 6:53 p.m. on the night of the shooting, as well as several other calls before and after that time. According to defendant, he was also texting between 6:30 p.m. and 7:30 p.m., many of those messages had been erased from his cell phone, and he did not erase them. He said the messages were on his phone when it was seized by law enforcement.
By the end of the first interview, defendant felt pressured. He was thinking about his children, his "going down" for something he did not do, and the position he was in. At the end of the first interview, when Yoon asked if defendant took Burch to do the shooting, defendant was going to tell King and Yoon the truth, but they cut him off and said something about taking a break.
Defendant was placed in a cell. He had one arm chained to the bars and was at a table. There was no leg room. King brought him a cup of water, then sat down at the table and said he knew defendant did not do it, but defendant needed to let them know what happened. He then gave defendant a photographic lineup and asked if defendant knew anything about any other shootings involving the men in the photographs. Defendant said he did not, but he would tell him the truth. King said they were going to go back into the interview room. King told defendant something about a cite and release for the misdemeanor defendant was facing. He said that would happen after the interview.
During the second interview, defendant told detectives Burch got the gun from Paul Evans. This was what Burch told defendant. The first day defendant arrived in Bakersfield, he drove Burch to a friend's house. He saw Evans there. Defendant told detectives the truth about where he himself was. When defendant said Burch was not specific about the location at which the shooting occurred, the detectives showed him on a map.
After Burch told defendant about the shooting, defendant searched the car. He did not see any shell casings in it. He told that to King. He also truthfully told King that Burch did not have a gun when he brought back defendant's vehicle. At the end of the second interview, defendant started to say he was innocent and willing to prove his innocence. King cut him off, however, and returned him to the holding cell. Although King said defendant could stretch out, defendant was more comfortable in the interview room.
In the holding cell, the detectives told defendant that they believed him, but everything he told them was considered hearsay. They said defendant was going to have to involve himself to be an eyewitness so they could arrest Burch. King then asked what defendant knew about the CSUB shooting. Defendant responded that he knew what he told the police when he was detained back in 2010. He told King what he knew, but King cut him off and said he knew all of that. He wanted to know about Burch pulling the trigger, so he needed to take defendant back into the interview room. King said Yoon would lead defendant on everything, and to make sure defendant followed it. The detectives' main focus was the CSUB shooting. They wanted defendant to say Burch pulled the trigger. They told defendant he was not going to see his daughters again. Defendant thought he had better come up with something.
In the third interview, the detectives had a map and a piece of paper with the information on it. Defendant did not know why that was not shown on the video recording. The detectives were respectful, but they were demanding about what he should do.
Defendant knew nothing about cell phone and GPS technology. Because the detectives told him it was possible to use someone's cell phone to pinpoint that person's location, defendant believed them. Based on what they told him about his cell phone records, the evidence they had, and what went on in the holding cell, defendant concluded his best course of action would be to "just go with the flow." When Yoon said defendant drove Burch, defendant denied it. Yoon cut him off and insisted defendant drove Burch. At that point, defendant agreed. Defendant believed this was part of the plan hashed out inside the holding cell. There was a map on the table with street-by-street arrows showing driving directions to where the shooting occurred. As for the description of the firearm, defendant never actually saw a firearm. He guessed at the caliber. He and the detectives talked about everything, including caliber, in the holding cell.
Defendant denied actually being present at the shooting or being involved in any way, although the rental car he was driving was the one used in the shooting. He did not know Burch was taking his vehicle so he could shoot someone. He did not give Burch permission to do anything with the vehicle.
Robert Aguero testified as an expert in cell phone technology and cell phone tower information. He mapped the cell tower locations around, and for the driving routes between, the Elks Lodge and the Hollywood Market. There were three main routes of travel between the two locations. The driving distance ranged from 5.7 miles to 6.6 miles.
DISCUSSION
I
FAILURE TO DISCLOSE EVIDENCE
Defendant contends the prosecutor committed misconduct by failing to disclose to the defense all of defendant's statements in the prosecutor's possession. Defendant says his motion for a mistrial should have been granted, and the trial court's failure to do so deprived him of his constitutional rights to the effective assistance of counsel and a fundamentally fair trial. He also says the trial court was biased against the defense with respect to this issue. We conclude reversal is not warranted. A. Background
In defendant's statement to King and Yoon, reference was made to defendant receiving, near the time of the shooting, a telephone call from jail inmate Walter Kai Williams. Defendant told King and Yoon the call concerned putting money on Williams's books. Although it was a collect call from the jail, it showed a Texas area code. Yoon noted that calls from jail were recorded, and he and King would listen to them. Gavin also mentioned the call during his testimony on Friday, April 24, 2015.
Unspecified references to dates in part I of the Discussion are to the year 2015.
Direct examination of defendant began later that Friday. No court was held on Monday, April 27. Direct examination concluded, and cross-examination began, on Tuesday, April 28.
Cross-examination continued the next day. At one point, the prosecutor questioned defendant about various people's nicknames and whether Burch had a nickname. Defendant knew several people who went by "Wook," and that it was one of Burch's nicknames. The prosecutor then asked to have People's exhibit No. 20 marked. Defense counsel asked for a sidebar, stating he did not know what the exhibit was, but the court refused.
The prosecutor then questioned defendant about receiving a call from Williams while, according to defendant's testimony, defendant was waiting for Burch to return. The prosecutor elicited that defendant received the call at 6:53 p.m., while he was at the house on Eureka where his daughter's mother lived. This was five minutes after the shooting. Defendant testified he was not in a car or with Burch at the time. Williams asked defendant to put money on his books and inquired whether defendant had seen Williams's girlfriend. Defendant denied handing his phone to anyone during that call. This ensued:
"Q. The reason I'm asking, as the detectives mentioned in your interviews, that call is recorded?
"A. Right.
"Q. You haven't heard that recording yet, have you?
"A. No.
"Q. So would it surprise you to learn that during that call, you say, hey, I got my Nigga Wook with me and someone else gets on the phone, and it sounds an awful [lot] like Marlon Burch, would that be a surprise to you?
"A. Yes, I —
"Q. Do you have any explanation for that?
"A. I don't know.
"Q. That is the — that, in fact, is the case?
"A. I don't even know that. . . . [¶] . . . [¶]
"Q. Certainly, you shouldn't hear anything like, I don't know, seat belt indicators going off in the phone call, right? You know, the beep, beep and when you're not wearing your seat belt, we wouldn't hear that in the phone call, would we?
"A. No.
"Q. And we certainly wouldn't hear Marlon Burch, because he wasn't with you at that time?
"A. Not at all.
"Q. We wouldn't hear you make any reference to giving the phone to Wook, would we?
"A. No.
"Q. All we would hear is a discussion between solely you and Walter Kai Williams, the East Side Crip gang member that was — that you knew was in jail?
"A. Yes.
"Q. If we did hear it, that you were in a car with Marlon Burch, we would know that your story about not being with him in the car after the shooting was false, wouldn't we?
"A. Yes.
"Q. I just want to make clear before we get there, you don't have any explanation at all for why this would be the case if it is?
"A. Yes, that's not the case. Kai Williams called me plenty of times.
"Q. I'm talking about the one time.
"A. Yes.
"[PROSECUTOR]: Now might be a good time for the sidebar, Your Honor."
After the sidebar, the prosecutor played exhibit No. 20, an audio recording of a telephone call from the jail. Defendant denied knowing what the call was or recognizing the caller's voice. Defendant admitted recognizing his own voice. After hearing more of the recording, defendant recognized the call as being from Williams, but noted that Williams called him a number of times. Defendant acknowledged he heard beeping at the beginning of the recording, but stated he did not know what it was. This ensued:
"Q. It's not the seat belt indicator light for the Impala that you were driving, right?
"A. No.
"Q. It couldn't be, because you weren't in the car?
"A. I don't know what it is, Counsel."
After listening to more of the recording, defendant acknowledged he said he had Wook with him, and that he was talking about Burch. Defendant conceded Burch was with him at that moment. He also conceded he gave the phone to Burch, who then spoke with Williams. The prosecutor asked if defendant heard Burch say, "go right, go right." Defendant replied that it sounded like he said, "that's right." The prosecutor played the portion of the recording again, but defendant still could not make out what was said. Defendant admitted being with Burch the entire duration of the call, which was about five minutes long, but explained Williams called him several times, and defendant could not specify the exact times. Defendant denied being in a car with Burch four minutes after the shooting. He was not with Burch at all until Burch returned to the house on Eureka at which defendant was staying. Defendant agreed with the prosecutor that Burch could not have made it from the market to that house in four minutes.
At the next break, the court and counsel memorialized the sidebar concerning exhibit No. 20. The court summarized that the prosecutor wished to play the exhibit, but defense counsel objected that he did not receive the information until that day. Defense counsel moved for a mistrial based on the late discovery, which he argued constituted prosecutorial misconduct. Based on its understanding of how and when the People obtained the information, the court denied the motion for mistrial and ruled the prosecutor could play the exhibit, based on the prosecutor's assurance he could lay an adequate foundation for it.
Defense counsel agreed with the court's recitation of the sequence of events. Counsel asserted that he first became aware of the existence of a recording at the end of the previous day's proceedings. Counsel represented that the prosecutor said the recording was provided long ago. Counsel asked for evidence it was actually provided, because counsel had no such recording and had had this case from its inception. Counsel stated that he had waited for the prosecutor that morning before entering the courtroom, and had asked if the prosecutor had a transcript of the recording. The prosecutor said he was not going to use it. Defense counsel asserted the prosecutor committed egregious misconduct and intentionally "sandbagged" evidence in denigration of defendant's right to a fair trial. Defense counsel acknowledged defendant had an obligation to tell the truth, but observed defendant had the right to have counsel advise him of the evidence that was going to be used against him. Counsel argued that if he had known of this evidence, he would have investigated the exact time of the shooting rather than relying on the time of the 911 calls, since now even one or two minutes was crucial. Counsel reiterated his request for a mistrial on the ground defendant had been prejudiced to the extent he could not receive a fair trial.
The prosecutor acknowledged telling defense counsel of the recording the previous evening. He asserted, however, that it was disclosed the preceding year, since it was mentioned in defendant's interviews with the detectives. Defense counsel therefore knew of the call's existence, but never asked the prosecutor to obtain a copy of it. The prosecutor never obtained a copy, because he did not think it was going to be particularly important. To the prosecutor, the only significance of the call was that defendant admitted talking to a known East Side Crip member. Moreover, defense counsel stated, during voir dire, that defendant was not going to testify.
When defendant began testifying, however, it became clear to the prosecutor that defendant was going to tell a story that was different from what he had said in the past and in the recorded interviews. In response, the prosecutor sent Gavin, his investigating officer, to look for jail calls that might contain something about defendant's guilt, and particularly this call, due to the timing of it, and the fact defendant presented cell phone evidence and testimony concerning his own cell phone. This made King's failure to get the records for the calls, particularly the one right after the shooting, an issue.
The prosecutor represented that when the defense began presenting evidence, the prosecutor had the weekend to have Gavin contact jail staff to try to get some recordings. Gavin did so. The prosecutor obtained physical copies of the recordings on Monday, and began "filtering" through them to determine what was important. He focused on this call because it included Burch and had the sound of the car in the background.
The prosecutor asserted the recording was rebuttal evidence that everyone knew existed, although its import was not necessarily known. He denied having it for a year and never disclosing it. He stated that when he got the information, it was important to establish whether it was going to be relevant. In order to do that, he had to confirm with defendant that Wook was Burch. Once defendant did so, it was clear the call was going to be introduced. Although it was rebuttal evidence, the prosecutor introduced it during cross-examination in the defense case, because he wanted to give defendant a chance to address it and did not know if it could be introduced in rebuttal without defendant having a chance to explain it and identify the individuals involved.
Defense counsel accused the prosecutor of lying to the court about what the prosecutor told counsel. Defense counsel also took issue with the prosecutor's claim of not previously realizing the evidence was relevant. Counsel asserted that everything in defendant's testimony was simply confirmation of defense counsel's cross-examination of King, and that the prosecutor knew that and hid the evidence.
The trial court observed that the district attorney's office often obtained jail calls of defendants, which needed to be disclosed because they were statements of a defendant. It considered the call at issue in this case to be in a different posture, however, since it was a call from another individual, not defendant. The court acknowledged defense counsel's argument that common sense suggested the detectives would immediately have listened to a call made four minutes after the shooting, but the court did not know what the detectives did. It acknowledged that the nature of the phone calls and phone records were a significant part of the defense case. This was why it allowed Aguero to testify in that regard even though no discovery was provided to the People, the premise of his testimony being that if detectives would have obtained defendant's phone records, those records would have shown the phone's location at or around the time of the shooting.
Aguero did not testify to the location of defendant's cell phone at any given time. Instead, he described what cell phone records and technology could have shown had they been obtained reasonably soon after the date of the shooting.
The prosecutor agreed that defense counsel's "insinuations" during cross-examination "suggested a theme for the case"; however, the prosecutor did not expect defendant to testify. Once defendant began testifying on Friday, the prosecutor asked Gavin to look through the jail recordings, which were kept by the sheriff's department and not the police department (the agency involved in this case). Gavin then went to the jail and used the sheriff's department computer to listen to some calls. He asked the sheriff's department to put on a CD the ones he thought would interest the prosecutor. The prosecutor personally received the recordings about 2:00 p.m. on Monday.
The trial court asked when the prosecutor first realized the contents of the call were such that Burch was involved. The prosecutor responded that at about 7:00 p.m. on Saturday, Gavin informed him that he (Gavin) had found this telephone call. It was Gavin's impression Burch was involved in it. The prosecutor understood, on Saturday, the significance of the call and its timing. He did not actually receive and listen to the recording until about 2:00 p.m. on Monday, however, after his investigator was able to obtain it from the jail. When the prosecutor first listened to the call, he did not realize the people had switched, and "Wook" did not mean anything to him. When he told Gavin he did not think it was helpful, Gavin explained that "Wook" was Burch. Gavin showed the prosecutor a Facebook page on which Burch went by that name.
The prosecutor explained that the call originated from the jail at 6:52 p.m., with defendant's phone showing it was received at 6:53 p.m. The trial court observed this corroborated defendant's statement that he talked to Williams at that time, and asked if the prosecutor had thought about that. The prosecutor agreed it was corroborative, but noted defendant speaking to Williams was never really in dispute. The trial court stated the recording still should have been disclosed, since it was exculpatory in the sense it corroborated defendant's testimony, although the court understood the prosecutor was not thinking along those lines.
The prosecutor said it became significant to him around 5:00 p.m. Monday. A transcript of the call was prepared on Tuesday, and the prosecutor reviewed it Wednesday morning and had it with him when he came into court. By Tuesday evening, he realized there was a strong possibility he would use the evidence, although he wanted to get information about Burch's moniker from defendant himself to determine whether it would be appropriate to play the recording. The prosecutor conceded the transcript listed the third party speaking as Burch, and that he directed the transcriber to use that name, given the "strong possibility," as of noon Tuesday, he would use the recording.
The prosecutor agreed with the court's statement that the prosecutor did not turn the recording over to the defense until he wanted to have it marked as an exhibit, at which point the sidebar conference was held and the court ruled the recording could be played. The court found the prosecutor withheld the recording at least in part to see if he could elicit from defendant that Burch was known as Wook, something that was not revealed before the prosecutor received the recording.
Defense counsel disputed the prosecutor's sequence of events. Counsel represented that the prosecutor first mentioned something about jailhouse recordings Tuesday, after court recessed about 4:30 p.m. The judge and defense counsel both were surprised, and the judge asked the prosecutor why it had not been turned over and then left the courtroom. Defense counsel questioned the prosecutor further, and the prosecutor said it was turned over the previous year. He also said he was not going to use it. That night, defense counsel worried defendant may have said something the night before that could jeopardize the case. To that end, he waited for the prosecutor Wednesday morning and asked for the transcript. The prosecutor refused and said it was not important and he was not going to use it. Defense counsel assumed the issue was "dead" at that point, until the prosecutor began cross-examining defendant.
Defense counsel noted the existence of the particular phone call was known, and was never an issue in the case. Accordingly, he disputed the notion it became significant because the defense introduced it.
Defense counsel argued that even assuming the prosecutor was being truthful, he should have notified defense counsel of the call by e-mail on Saturday. Defense counsel observed that the prosecutor knew Saturday of a phone call placing defendant at the same location as Burch, and it was irrelevant when the prosecutor actually listened to the call. The prosecutor knew the value of it, defendant was on the witness stand, and the prosecutor "sandbagged it." Defense counsel argued the evidence was critical and was not rebuttal evidence.
The court asked what counsel would have done had he known about the recording on Saturday. Counsel represented that he would have investigated the time of the shooting. He had experience with the times on surveillance videos being off by as much as 10 minutes, and he could have found the witnesses who were present. He also would have discussed with defendant the evidence the prosecution had against him. Counsel asserted that regardless of whether defendant testified truthfully, he had a constitutional right to know the evidence that would be used against him. Had counsel had the information on Saturday, his defense strategy "would have been completely different from what it is right now." If he had shown defendant the evidence and defendant had said he was going to testify as he testified, counsel would have withdrawn from the case.
The court observed that defendant testified about the phone calls on Friday. Defense counsel asserted he would have made clear to defendant that he would not be a party to defendant committing perjury. The court replied that no one was saying he committed perjury. Defense counsel responded that was the impression now, which was the prosecutor's purpose.
The trial court found that the first time the prosecution had knowledge of the phone call's contents was Saturday, when the prosecutor was put on notice that there was a call from Williams that could help the People's case if it could be established, as Gavin believed, that Burch was involved in the call. The court did not find it unreasonable that the People had not previously obtained the recording, since it was the phone call of another inmate to defendant that defendant mentioned in an interview as a call he received from the jail, and there was no reason to disbelieve him. The court noted the People did not know the specifics of defendant's testimony ahead of time, and they were not required to quit investigating a case once trial started. In this instance, something happened in trial that prompted further investigation.
The court found the prosecutor recognized on Saturday that the call was potentially significant. By Monday, the prosecutor had reason to believe he would be able to present the evidence, regardless of the testimony as to who was on the recording. The court recognized it was rebuttal evidence, but found "the better practice" would have been to turn it over on Monday. The court found the prosecutor had a duty to turn it over once he found it corroborated defendant's testimony about receiving a call from Williams. The court expressed uncertainty whether failure to do so rose to the level of prosecutorial misconduct, but reiterated it should have been turned over sooner.
The court found the issue to be what the People actually gained by disclosing the evidence Wednesday instead of Monday or Tuesday. It found the late disclosure did not change anything as defendant had already testified about the phone calls, his location at the time they were made, and that he was not in a car or with Burch. Accordingly, the thing the People gained was the opportunity to see if they could elicit from defendant that Burch went by "Wook," which they could have gotten in regardless of what defendant said. The court believed the evidence likely would have come in regardless of defendant's testimony, and defendant was already on record saying to whom he was talking and where he was during the call.
In terms of whether to grant a mistrial, the court found it had to look at whether an injustice occurred because of the prosecutor's misconduct in not turning over the evidence sooner. The court found none rising to such a level, because everything was already on the record before anyone learned about the call's contents, and the facts that came out through defendant's testimony would have come out in any event. Accordingly, the trial court denied the defense motion.
Defense counsel then said he would need a week's continuance. The trial court refused. When counsel then said he needed "some days" to be able to investigate the evidence that was presented, the court asked what he would do in those days. Counsel stated he did not know how to go about defending defendant, given what occurred. He disputed the court's comment that he was doing a good job of defending him. The court then gave counsel a few minutes to talk to defendant before defendant resumed the witness stand. It declined defense counsel's request to strike testimony. Defense counsel spoke with defendant, then announced the defense was resting.
It is not clear whether counsel was asking the court to strike only defendant's testimony related to the phone call or all of defendant's testimony.
In rebuttal, the prosecutor presented testimony from Courtney Martinez, a sheriff support technician at inmate services at the jail, who explained how inmate phone calls and recordings of those calls are made. She confirmed that over the weekend or on Monday, she received a request from Gavin to obtain phone calls relevant to this case. There were no other requests in her files for information regarding defendant's calls. Although there was a prior request for Williams's call information, that request predated April 2, 2014, and the calls produced did not include calls made on or after that date. She further testified that Williams's pin number was used to make a call on April 2, 2014, at 6:52 p.m., to the number defendant gave detectives as being defendant's cell phone number.
Gavin also testified on rebuttal. He first had a conversation with the prosecutor concerning the call on Friday, after they left court. The prosecutor asked if Gavin was willing to find time to listen to recordings to see if there was anything there. Gavin got to work around 5:00 p.m. on Saturday, and went to the jail around 6:00 p.m. Once he found the call, he submitted a request to the sheriff's department to copy it. He did not actually speak to the prosecutor, but sent him a message around 7:50 p.m., after he listened to the recordings. When Gavin listened to the call, he recognized Burch from his contacts with him. Gavin had actually spoke with Burch, had heard people on the street call him "Wook," and knew he had a Facebook page under that name. In the background of the call, Gavin heard a beeping noise that, based on his experience, was the sound made when a seat belt was not buckled. From what he understood, the actual CD of the recording was obtained on Monday.
Gavin testified that officers could go to the sheriff's department and listen to recordings on a computer without requesting a copy of the recording. It was his understanding no other officer had listened to the recording before Gavin did so on Saturday, but Gavin could not verify this.
Defense counsel subsequently asked the court to dismiss the case for prosecutorial misconduct or at least declare a mistrial, based on the prosecutor and Gavin's intentionally withholding evidence in order to gain a tactical advantage. Defense counsel asserted the prosecutor's conduct was "reprehensible," and argued defendant was denied counsel's representation, because counsel could not cross-examine or redirect defendant because the prosecutor hid evidence. Defense counsel asserted that had he known the prosecutor had the evidence, even on Monday, he would have advised defendant accurately and the defense would have been different.
The court asked what counsel would have done differently, inasmuch as defendant had testified and the prosecutor would have had a right to ask questions if he disclosed the recording on Monday. When the court asked if there was some reason to believe defendant's answers would have been different, defense counsel said yes, because counsel would have advised him. Counsel would not have advised him to lie, but would have advised him of the consequences of lying.
Counsel clarified that he was not saying defendant lied.
The court agreed the Penal Code clearly required the prosecutor to turn over statements of a defendant, regardless of whether they were exculpatory. The court found the statements at issue in this case should have been turned over on Monday. The court found "a close call" would be presented if the prosecutor had the recording before defendant testified. However, nobody had reason to believe the call concerned anything but Williams and defendant talking about money being put on Williams's books. Nobody had reason to investigate further until after defendant took the witness stand. The court noted the situation would also be different if the prosecutor knew of the call's contents, but "sandbagged" by not asking for a physical recording until after defendant began testifying.
The court found the prosecutor had no hint of the contents of the call until Saturday, and was not apprised of the complete situation until he actually received the recording on Monday. At that point, he should have turned it over. The court reiterated, however, that it did not believe disclosing it Monday would have changed things. It noted the prosecutor would have had the right to present the recording, which clearly would have been connected, by the evidence already presented, as the call to defendant's phone that occurred at 6:52 p.m. The only "sandbagging" was that the prosecutor waited to see if defendant would indicate Burch was on the phone with him. Because the prosecutor would have had the right to ask defendant regardless of when he disclosed the recording, the court had no reason to believe things would have been different or that defendant's answers would have been different. That being the case, the court found a mistrial unwarranted, because there was no injustice such that defendant would not receive a fair trial because of what happened. It also declined to strike the evidence as a sanction against the prosecutor. B. Analysis
"A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury." (People v. Morales (2001) 25 Cal.4th 34, 44; see, e.g., People v. Shazier (2014) 60 Cal.4th 109, 127.) " 'In order to be entitled to relief under federal law, defendant must show that the challenged conduct was not harmless beyond a reasonable doubt.' [Citation.]" (People v. Williams (2013) 58 Cal.4th 197, 274.) In contrast, "[m]isconduct that does not constitute a federal constitutional violation warrants reversal only if it is reasonably probable the trial outcome was affected. [Citations.]" (People v. Shazier, supra, 60 Cal.4th at p. 127.)
A prosecutor's failure to disclose evidence can form the basis for a claim of prosecutorial misconduct, regardless of whether disclosure is required under Brady v. Maryland (1963) 373 U.S. 83 (Brady) or under section 1054.1. (See, e.g., People v. Verdugo (2010) 50 Cal.4th 263, 279.) As the California Supreme Court has explained:
" 'Pursuant to Brady, supra, 373 U.S. 83, the prosecution must disclose material exculpatory evidence whether the defendant makes a specific request [citation], a general request, or none at all . . . .' [Citation.] 'For Brady purposes, evidence is favorable if it helps the defense or hurts the prosecution, as by impeaching a prosecution witness. [Citations.] Evidence is material if there is a reasonable probability its disclosure would have altered the trial result. [Citation.] Materiality includes consideration of the effect of the nondisclosure on defense investigations and trial strategies. [Citations.] Because a constitutional violation occurs only if the suppressed evidence was material by these standards, a finding that Brady was not satisfied is reversible without need for further harmless-error review. [Citation.]' [Citations.]
"Section 1054.1 (the reciprocal-discovery statute) 'independently requires the prosecution to disclose to the defense . . . certain categories of evidence "in the possession of the prosecuting attorney or [known by] the prosecuting attorney . . . to be in the possession of the investigating agencies." ' [Citation.] Evidence subject to disclosure includes '[s]tatements of all defendants' (§ 1054.1, subd. (b)), '[a]ll relevant real evidence seized or obtained as a part of the investigation of the offenses charged' (id., subd. (c)), any '[r]elevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor
intends to call at the trial, including any reports or statements of experts' (id., subd. (f)), and '[a]ny exculpatory evidence' (id., subd. (e)). 'Absent good cause, such evidence must be disclosed at least 30 days before trial, or immediately if discovered or obtained within 30 days of trial. (§ 1054.7.)' [Citation.]" (People v. Verdugo, supra, 50 Cal.4th at pp. 279-280.)
We have observed that disclosure must be made at a time when it would be of value to the accused. (People v. Superior Court (Meraz) (2008) 163 Cal.App.4th 28, 51.) Because the good or bad faith of the prosecutor is not determinative (Brady, supra, 373 U.S. at p. 87; In re Ferguson (1971) 5 Cal.3d 525, 532), we have also noted that suppression of materially favorable evidence violates due process regardless of whether it was intentional, negligent, or inadvertent (In re Sodersten (2007) 146 Cal.App.4th 1163, 1225).
"The requisite reasonable probability is a probability sufficient to undermine confidence in the outcome on the part of the reviewing court. It is a probability assessed by considering the evidence in question under the totality of the relevant circumstances and not in isolation or in the abstract. [Citation.]" (People v. Dickey (2005) 35 Cal.4th 884, 907-908.)
The prosecutor in the present case did not violate any federal constitutional or state statutory discovery obligations by failing to obtain the contents of the telephone call earlier than he did. He had no obligation to conduct defendant's investigation for him. (People v. Morrison (2004) 34 Cal.4th 698, 715.) Moreover, the sheriff's department was not involved in the investigation of the shooting and so was not part of "the 'prosecution team,' " knowledge of information in whose possession is imputed to the prosecutor. (See In re Brown (1998) 17 Cal.4th 873, 879.)
It may be, as defense counsel argued, commonsensical to believe police listened to the call earlier. Gavin's testimony concerning when the prosecutor asked him to do so was unrefuted, however, and speculation does not establish a Brady violation. (People v. Zaragoza (2016) 1 Cal.5th 21, 52; see People v. Panah (2005) 35 Cal.4th 395, 460.) In light of defendant's confession, the prosecutor had no reason to believe the call's contents might be significant, until defendant took the witness stand and began attacking the confession. At that point, evidence corroborating the confession became desirable, if not necessary. As this court has stated: "A trial is not a scripted proceeding. . . . [D]uring the trial process, things change and the best laid strategies and expectations may quickly become inappropriate: witnesses who have been interviewed vacillate or change their statements; events that did not loom large prospectively may become a focal point in reality." (People v. Hammond (1994) 22 Cal.App.4th 1611, 1624.)
The question, then, is whether the prosecutor committed misconduct by delaying, by several days, disclosure of the recording of the telephone call.
There was no Brady violation. "[E]vidence that is presented at trial is not considered suppressed, regardless of whether or not it had previously been disclosed during discovery. [Citations.]" (People v. Morrison, supra, 34 Cal.4th at p. 715; see People v. Verdugo, supra, 50 Cal.4th at p. 287.) Moreover, while the existence of the phone call was favorable to defendant because it corroborated his claim about his activities at the time of the shooting, the existence of the call was known to the defense for some time, since defendant mentioned it in his statement to detectives. (See People v. Williams, supra, 58 Cal.4th at pp. 257-258.) To the extent the contents were favorable because they corroborated defendant's claim he was speaking to Williams, this point was not material for Brady purposes: There is simply no reasonable probability its disclosure would have altered the trial result. Beyond that, the call's contents were unfavorable to defendant.
The prosecutor had a statutory duty to disclose the call's contents, because they constituted statements of a defendant. As such, it was not up to the prosecutor to decide whether the contents were relevant. (People v. Jackson (2005) 129 Cal.App.4th 129, 169; see In re Miranda (2008) 43 Cal.4th 541, 577.) Moreover, the prosecutor had a statutory duty to disclose the evidence "immediately." (§ 1054.7.) Under the timeline of this case, that would have been Monday at the latest. By delaying disclosure until Wednesday, the prosecutor violated section 1054.7. (Cf. People v. Verdugo, supra, 50 Cal.4th at p. 287 [prosecutor complied with § 1054.7 by producing notes to defense same morning prosecutor received them].)
"It is axiomatic that a trial is a search for the truth. [Citation.] Procedural rules, including those of discovery, are designed to ensure that the search is fair, reasonably pursued, and based on reliable information. The rationale behind California's discovery statute is that neither side should be allowed to engage in, or be subjected to, a trial by ambush. [Citation.]" (People v. Bell (2004) 118 Cal.App.4th 249, 256.)
We do not condone the prosecutor's actions, and we conclude he committed misconduct. (See People v. Hoyos (2007) 41 Cal.4th 872, 924, fn. 36, overruled on other grounds in People v. Black (2014) 58 Cal.4th 912, 919-920 & People v. McKinnon (2011) 52 Cal.4th 610, 637-643.) Nevertheless, " 'the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.' [Citation.]" (In re Price (2011) 51 Cal.4th 547, 560.) "Whatever methods a trial or appellate court might otherwise use to bring to heel a recalcitrant or incorrigible prosecutor, the federal Constitution does not require (and the state Constitution does not permit) the reversal of a criminal conviction unless the misconduct deprived defendant of a fair trial or resulted in a miscarriage of justice. [Citation.]" (People v. Hinton (2006) 37 Cal.4th 839, 865.)
It is defendant's burden to show the late disclosure was prejudicial. (People v. Pinholster (1992) 1 Cal.4th 865, 941, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459.) We conclude defendant has not done so here. Defendant mentioned the call in his statement to police, and would have been subject to cross-examination on the subject regardless of when the prosecutor disclosed the contents. We fail to see what defense counsel could have done differently, had timely disclosure been made, as it is speculative to assume investigation into the exact time of the shooting would have turned up anything helpful to defendant. It is also speculative to believe defendant would not have testified. The jury would have been left with his unchallenged confession. His only hope was to testify and give jurors reason to believe his confession was false. The calls shown on his cell phone call log around the time of the shooting were, in essence, his alibi. Because of this, it would have been impossible for him to avoid testifying about them on direct examination, rendering them fair game for cross-examination. (Evid. Code, § 773, subd. (a).)
Defendant does not now claim the trial court abused its discretion by denying his request for a week's continuance. (See People v. Panah, supra, 35 Cal.4th at p. 460.)
We emphasize that the improper delay in disclosure was only a matter of days. Given what defendant told detectives about the call at issue and the fact defendant had already begun testifying — and had already testified concerning his cell phone's call log — by the time disclosure should have been made, the idea that defense counsel would have refused to be a party to perjury, while certainly commendable on counsel's part, would not have resulted in defendant not testifying or testifying differently in that regard. We cannot help but note defendant knew the contents of the phone call. If he chose not to be forthcoming with his attorney, that is not attributable to the prosecutor or defense counsel.
In light of the foregoing, we conclude defendant has not demonstrated the prosecutor's failure to disclose the call's contents in a timely fashion rendered defendant's trial fundamentally unfair, resulted in a miscarriage of justice, or interfered with his right to the effective assistance of counsel. (See, e.g., People v. Whalen (2013) 56 Cal.4th 1, 65, disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 44, fn. 17; People v. Verdugo, supra, 50 Cal.4th at pp. 281-282; People v. Hoyos, supra, 41 Cal.4th at pp. 922-923.) It follows that the trial court did not abuse its discretion by denying his mistrial motion. (See People v. Burgener (2003) 29 Cal.4th 833, 873; People v. Welch (1999) 20 Cal.4th 701, 749; People v. Rodrigues (1994) 8 Cal.4th 1060, 1154; see generally People v. Hayes (1990) 52 Cal.3d 577, 610.)
Defendant asserts the prosecutor committed further misconduct by "testif[ying]" about the call during the defense case. Defendant has forfeited this claim by failing to object to the order or method of proof on evidentiary grounds, or by assigning the prosecutor's actions in this regard as misconduct. (See, e.g., People v. Pearson (2013) 56 Cal.4th 393, 426; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 68; People v. Hill (1998) 17 Cal.4th 800, 820; People v. Baines (1981) 30 Cal.3d 143, 149; People v. Burch (1961) 196 Cal.App.2d 754, 770, disapproved on another ground in Owens v. Superior Court (1980) 28 Cal.3d 238, 249, fn. 10.)
In any event, we perceive no misconduct. Although the usual order of proof calls for the prosecution's rebuttal to follow presentation of the defense's case-in-chief (§ 1093, subds. (c) & (d)), departing from that order lies within a trial court's discretion (People v. Seastone (1969) 3 Cal.App.3d 60, 67; People v. Mayfield (1961) 196 Cal.App.2d 72, 75; Evid. Code, § 320). As for the prosecutor's method of questioning, we find no prejudicial impropriety under the circumstances. (See People v. Pearson, supra, 56 Cal.4th at pp. 426, 428; People v. Mooc (2001) 26 Cal.4th 1216, 1233-1234; People v. Crabtree (2009) 169 Cal.App.4th 1293, 1318.) The prosecutor played the recording of the call while he was questioning defendant; hence, jurors could reach their own conclusions about the call's contents. In addition, they were instructed that they alone were the finders of fact, nothing the attorneys said was evidence, and the attorneys' questions were not evidence.
Defendant contends the trial court was biased against the defense and in favor of the prosecution, as purportedly shown by its attitude toward defense counsel and the defense side of the case and its willingness to rationalize and justify the prosecutor's misconduct. We decline to allow a defendant to turn an allegedly erroneous ruling, subject to review for prejudice, into structural error that is per se reversible, merely by claiming bias.
"A fair trial in a fair tribunal is a basic requirement of due process." (In re Murchison (1955) 349 U.S. 133, 136.) Thus, a defendant has a federal constitutional right to an impartial trial judge. (People v. Kipp (2001) 26 Cal.4th 1100, 1140.) Denial of this right is a structural defect not subject to harmless error analysis. (Arizona v. Fulminante (1991) 499 U.S. 279, 309.)
Because defendant never moved to disqualify the trial judge for, or objected on the ground of, bias, his claim is forfeited. (People v. Rodriguez (2014) 58 Cal.4th 587, 626; People v. Pearson, supra, 56 Cal.4th at p. 447; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 994.) Defendant says any objection would have been futile, but the record does not allow us to reach that conclusion. Alternatively, defendant claims the failure to object constituted ineffective assistance of counsel.
The burden of proving ineffective assistance of counsel is on the defendant. (People v. Pope (1979) 23 Cal.3d 412, 425.) "To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel's performance fell below an objective standard of reasonableness, i.e., that counsel's performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings. [Citations.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1003; see generally Strickland v. Washington (1984) 466 U.S. 668, 687-694.)
" 'Failure to object rarely constitutes constitutionally ineffective legal representation . . . .' [Citation.] Moreover, '[i]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.' [Citation.]" (People v. Huggins (2006) 38 Cal.4th 175, 206.)
Defense counsel reasonably could have believed the court's reasoning and rulings, although erroneous in counsel's view, did not evince bias. Accordingly, this is not a situation in which there could be no satisfactory explanation for counsel's failure to object. (See People v. Huggins, supra, 38 Cal.4th at p. 206.)
Moreover, we perceive no bias. " '[A] trial court's numerous rulings against a party — even when erroneous — do not establish a charge of judicial bias, especially when they are subject to review. [Citations.]' " (People v. Pearson, supra, 56 Cal.4th at p. 447.) Here, as we have explained, the trial court's ruling regarding the recorded call was not erroneous. Accordingly, the ruling is not a ground for finding judicial bias against the defense. (See People v. Peoples (2016) 62 Cal.4th 718, 789.) The court made the ruling only after giving the defense ample opportunity to argue the issue and explain why defendant assertedly was prejudiced by the late disclosure. (See People v. Lewis and Oliver, supra, 39 Cal.4th at p. 994.)
Defendant has failed to establish grounds for reversal.
II
FAILURE TO REMIND DEFENDANT OF HIS RIGHTS
Defendant contends his second and third police interviews should have been excluded, because he was not given any official reminder of the prior advisement of his rights. We conclude the entirety of his statement to detectives was properly admitted. A. Background
King and Yoon commenced interviewing defendant at 6:51 p.m. on April 3, 2014. At the outset, King ascertained defendant had had his rights read to him before, explained that defendant was under arrest and why, advised him of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and confirmed defendant understood each of his rights.
The first portion of the interview lasted until 7:39 that same evening. At the conclusion, King said he was going to keep defendant "on ice for a few minutes" while officers finished showing photographs, then King would "walk them back in here depending on what they find and what they don't find . . . ." Defendant was offered use of the bathroom, as well as water and something to eat.
The interview recommenced at 9:10 that evening. Defendant was not reminded of the prior advisement of rights. This portion of the interview began with defendant asking questions about the possibility of being cited and released. It lasted until 10:33 that evening, when defendant again was offered water, a snack, and use of the bathroom. Just prior to this break, King said he was going to do some research to determine the identities of some people defendant mentioned, and see if defendant could pick them out of a group of photographs.
The third portion of the interview commenced at 12:48 the next morning and lasted until 1:55 a.m. Again, defendant was not reminded of the prior advisement of rights. This portion of the interview began with King stating the detectives had talked to the district attorney's office, which wanted more information from defendant as assurance his information was good.
Defendant moved, in limine, "to exclude any statement purportedly made by the defendant to law enforcement pursuant to Miranda violation." The People filed a written brief in support of admission of the statements. They asserted a defendant need not be reminded or readvised of his or her rights after breaks during an interrogation.
An Evidence Code section 402 hearing ensued. In part, King testified that at the conclusion of the first and second portions of the interview, defendant was transferred to a holding room while King and Yoon conducted some follow-up research. On cross-examination, King explained the interrogation was accurately described as one interview with three portions, rather than three separate interviews. King conceded that after each break, he did not readvise defendant of his rights, remind him of the previous admonition, or tell defendant this was a continuation of the previous interview. Because King had explained the detectives needed to check on some things, he felt it was clear they were going to come back and talk further.
After argument and admission into evidence of defendant's rap sheet and two court dockets for his prior court cases, the court observed the detectives had multiple conversations with defendant over an extended period of time. It noted, however, that defendant had some sophistication with the criminal justice system, at least in terms of having previously been arrested and advised of his rights. Although time passed, the locations of the interrogations and the interrogators did not change. After reviewing the transcripts, the court found the second interview was simply a continuation of the first interview, involving the same subject matter. It further found that at the end of each portion, there was an understanding the interview would be continuing, which was why the detectives put defendant in a holding cell and told him why they were taking a break and, afterwards, what they did in the break, whereupon they begin talking with defendant about the same subject. Although "the better practice" was to remind defendants of their rights, it was not required here because all three interviews were, in effect, the same interview, i.e., one continuous interview with a couple of breaks. Accordingly, one warning was sufficient, and defendant's complete statement was admissible. B. Analysis
"In Miranda, the [United States Supreme C]ourt laid down a rule of a 'prophylactic' nature [citation] in order to protect the privilege against self-incrimination of the Fifth Amendment to the United States Constitution, as applied to the states through the due process clause of the Fourteenth Amendment: '[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant [by law enforcement officers] unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. . . . Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.' [Citation.]" (People v. Waidla (2000) 22 Cal.4th 690, 726-727.)
"The prosecution had to prove by a preponderance of evidence that defendant knowingly and voluntarily waived his Miranda rights. [Citations.] A valid waiver may be express or implied. [Citation.] Although it may not be inferred 'simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained' [citation], it may be inferred where 'the actions and words of the person interrogated' clearly imply it. [Citation.] [¶] In determining whether a defendant waived his rights, the court must consider 'the totality of the circumstances surrounding the interrogation.' [Citation.]" (People v. Cortes (1999) 71 Cal.App.4th 62, 69.) "On appeal, we conduct an independent review of the trial court's legal determination and rely upon the trial court's findings on disputed facts if supported by substantial evidence. [Citation.]" (People v. Williams, supra, 49 Cal.4th at p. 425.)
It is readily apparent defendant knowingly and voluntarily waived his rights at the outset of the interrogation, and he does not claim otherwise. The question is whether the original advisement of rights was adequate as to all three sessions, or whether detectives were required to remind defendant of his rights after each break.
"[R]eadvisement is unnecessary where the subsequent interrogation is 'reasonably contemporaneous' with the prior knowing and intelligent waiver. [Citations.] The courts examine the totality of the circumstances, including the amount of time that has passed since the waiver, any change in the identity of the interrogator or the location of the interview, any official reminder of the prior advisement, the suspect's sophistication or past experience with law enforcement, and any indicia that he subjectively understands and waives his rights. [Citations.]" (People v. Mickle (1991) 54 Cal.3d 140, 170; accord, People v. Williams, supra, 49 Cal.4th at pp. 434-435.)
We conclude readvisement was not required in the present case. The second and third sessions were reasonably contemporaneous with the prior knowing and intelligent waiver, as only about six hours passed between that waiver and the start of the third session. (See, e.g., People v. Duff (2014) 58 Cal.4th 527, 555 [noting California Supreme Court has found to be reasonably contemporaneous resumption of interrogation without readvisement one to two days after initial waiver]; People v. Pearson (2012) 53 Cal.4th 306, 317 [second interview reasonably contemporaneous with initial advisement and waiver where approximately 27 hours separated the two]; People v. Williams, supra, 49 Cal.4th at p. 435 [same; approximately 40 hours]; People v. Smith (2007) 40 Cal.4th 483, 504 [same; less than 12 hours]; People v. Mickle, supra, 54 Cal.3d at p. 171 [same; approximately 36 hours]; People v. Thompson (1992) 7 Cal.App.4th 1966, 1972 [same; approximately nine hours].) Neither the location of the interview nor the identity of the interrogators changed. Defendant was no stranger to the legal system and had been advised of his rights before. King's comments just prior to each of the breaks clearly indicated the interview was not over.
We recognize defendant was not given an official reminder of the prior advisement. (Cf. People v. Pearson, supra, 53 Cal.4th at p. 317; People v. Smith, supra, 40 Cal.4th at pp. 504-505; People v. Mickle, supra, 54 Cal.3d at p. 170.) This is only one factor to be considered, however. (See People v. Pearson, supra, at p. 317; People v. Mickle, supra, at p. 170.) Its absence is not fatal to admissibility of defendant's statements (see People v. Williams, supra, 49 Cal.4th at pp. 434-435), particularly where, as here, nothing in the record of the interview suggests defendant had forgotten or no longer understood his rights (see People v. Pearson, supra, 53 Cal.4th at p. 317).
Defendant asserts an official reminder of the prior advisement was necessary because detectives intentionally were deceiving him. He claims they took advantage of not mentioning his statements would be used against him, to make him believe his statements would be used for his benefit.
Defendant overstates what took place. That he hoped to clear himself does not mean he was deceived into thinking he could make statements that would be used for, instead of against, him or that he was tricked into believing the detectives were working on his behalf. The record shows defendant ultimately decided it was in his best interests to tell the truth in hope of receiving some sort of consideration from the district attorney's office — consideration he acknowledged the detectives could not promise him.
"The business of police detectives is investigation, and they may elicit incriminating information from a suspect by any legal means." (People v. Jones (1998) 17 Cal.4th 279, 297.) Under the totality of the circumstances, defendant's statements in the second and third sessions were not rendered inadmissible by detectives' failure to give him an official reminder of his rights.
III
SENATE BILL NO. 620
At the time defendant was charged, convicted, and sentenced, subdivision (h) of section 12022.53 provided: "Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section." Thus, the trial court here was required to, and did, enhance defendant's sentence by 25 years to life, pursuant to section 12022.53, subdivisions (d) and (e)(1).
After defendant was sentenced, but while his case was still pending on appeal, the Legislature enacted Senate Bill No. 620. As of January 1, 2018, subdivision (h) of section 12022.53 provides: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law."
Relying primarily on People v. Francis (1969) 71 Cal.2d 66, 75-76, the Attorney General concedes the foregoing amendment applies retroactively to defendant's case, as it was not yet final when the amendment went into effect (see People v. Vieira (2005) 35 Cal.4th 264, 306). We accept the concession without further analysis, and turn to the Attorney General's claim remand is not appropriate because no reasonable court would exercise its discretion to strike defendant's firearm enhancement.
With this, we do not agree. Defendant was not the actual shooter, and the victim was not killed. While we do not discount the seriousness of what occurred or of the crimes of which defendant was convicted, we cannot say, as a matter of law, that the trial court would abuse its discretion if it were to strike the firearm enhancement. Nor can we say, from the court's comments at sentencing, that it necessarily would have imposed the enhancement even if it could have exercised its discretion not to do so. (Cf. People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 (Gutierrez).)
In light of this conclusion, we do not address defendant's claim that application of the so-called "Gutierrez rule" deprives a defendant of his or her fundamental procedural due process right, under the federal Constitution, to be sentenced according to the sentencing procedures required by state law.
DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court to exercise its discretion under Penal Code section 12022.53, subdivision (h), as amended by Senate Bill No. 620 (Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018), and, if appropriate following exercise of that discretion, to resentence defendant accordingly.
/s/_________
DETJEN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
MEEHAN, J.