Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. SCD209574, Leo Valentine, Jr., Judge.
BENKE, J.
A jury convicted defendant Miguel Salinas and his codefendant Ricardo Manzo of false imprisonment by violence, menace, fraud and deceit (Pen. Code, §§ 236, 237, subd. (a) [count 1]), assault with a deadly weapon and with force likely to cause great bodily injury (§ 245, subd. (a)(1) [count 2]) and misdemeanor vandalism (§ 594, subd. (a)(b)(2)(A) [count 3]).
All further statutory references are to the Penal Code unless otherwise specified.
On appeal, Salinas claims the trial court abused its discretion when it admitted the out-of-court statements of the victim and a witness that Salinas was involved in the attack, after both testified at trial they could not remember Salinas's involvement. He further claims the court erred by admitting a photograph of the alley where the attack occurred because it included graffiti, and a photograph of three spray paint cans found on a codefendant at the time of Salinas's arrest. Finally, he claims the court abused its discretion when it admitted in rebuttal Salinas's out-of-court statements to police on the night of his arrest, and when it denied the jury's request for a read back of a portion of the victim's preliminary hearing testimony regarding the identity of his attackers. As we explain, we reject these claims and affirm the judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
We view the evidence in the light most favorable to the judgment of conviction. (People v. Gaut (2002) 95 Cal.App.4th 1425, 1427.) Certain portions of the factual and procedural history related to Salinas's claims of errors are discussed post, in connection with those issues.
At dusk on October 8, 2007, Francisco Robles walked to his truck parked in an alley adjacent to his house, and began to drive south down the alley. Suddenly, a group of about 7 to 10 young men appeared, approached the passenger side of Robles's truck and told him he could not pass because it was their "varrio" (e.g., neighborhood). A few members of the group began kicking Robles's truck, and two of them climbed onto the hood and hit the truck's windshield with their fists. One of the young men threw a beer bottle through an opening in the truck window, narrowly missing Robles's face. The attackers dented Robles's truck and damaged one of its lights.
The attack shocked Robles because it occurred where he lived. Robles in the past had seen groups of young men gathering in the alley, but he never had any problems with them before this incident.
Armando Rivera was a neighbor of Robles at the time of the attack. Rivera was in the alley that evening talking to his cousin Oscar Ibanes when Robles walked by them. Rivera and Robles spoke briefly, then Rivera saw Robles get into his truck and drive down the alley. Rivera next heard tires skidding and saw the group of young men, who appeared to be acting together, "lunge" at Robles's truck. Rivera saw one of the young men throw a beer bottle into the cab of the truck, and another kick the truck. Rivera recognized a few of the young men in the group, as he previously had seen them "hanging out" in the alley. Rivera was upset by the incident and worried for the safety of Robles.
Ibanes was working on his car, talking with Rivera, when Ibanes saw three men from the group attacking Robles and his truck. According to Ibanes, two of the men were on the hood of Robles's truck, and one was in the truck bed.
A. Evidence Connecting Salinas to the Crime
Robles's wife telephoned police at 7:28 p.m. to report the attack on her husband. Police responded to the call at about 7:50 p.m. As police were in the alley taking witness statements, they saw two men enter the alley from an apartment gate about 30 yards from where they were standing. As soon as the men saw the police, they quickly turned around and ran back through the gate. At the same time, somebody yelled: "That's them. That's them." Police went to the gate but saw the two men had gone into the apartment complex. The police got into their patrol car and drove to the front of the apartment complex, where they came upon a white vehicle backing out of a driveway. As police drove up behind the white car, the passenger got out and began to walk quickly away from police.
At trial, San Diego Police Officer Jason Calvert identified Salinas as the man who attempted to leave the white vehicle and Manzo as its driver. Officer Calvert detained Salinas and observed from his actions and the smell of alcohol that Salinas was "extremely intoxicated." Officer Calvert also testified Edward Gonzales was in the back seat of the vehicle when police stopped it. Calvert called for a backup unit to assist with the curbside showup to determine whether any of these individuals had been involved in the assault of Robles.
Sergeant Hall assisted in the curbside lineup. He initially brought Robles in his patrol car to the location of the white vehicle, where Officer Calvert and his partner had detained the three suspects. Because Robles did not speak English, Sergeant Hall had Robles's wife's daughter, Alma, in his patrol car translate for Robles. With both Robles and Alma present in the backseat, Officer Calvert read in English the standard admonishment given by police before any curbside showup, and Alma translated the words into to Spanish.
The following admonishment was read to (and translated for) Robles that night:
"I want you to look at somebody we have [de]tained. Do not conclude from the fact that we have detained someone that he or she is the guilty party. You are not obligated to identify anyone. It is just as important to free [an] innocent person as to identify the guilty person. Be aware that sometimes people who commit crimes will try to disguise their appearance by changing clothes and wearing hats, sunglasses, or wigs. Do not say anything or make any gestures, nod, point, et cetera, until you have totally viewed this person."
After Robles indicated to Officer Calvert he understood the admonishment, one by one Officer Calvert's partner brought the subjects to the front of their patrol car, where they stood in the light from the patrol cars' spotlights and headlights. The first subject was Salinas. From the backseat of Sergeant Hall's car, Robles identified Salinas as one of the young men involved in the assault. Next, Robles was shown codefendant Manzo, who Robles also identified as being involved in the assault. Finally, Robles identified Gonzales as one of the attackers.
After Robles identified each suspect, Sergeant Hall took him back to the alley, and picked up Rivera. Because Rivera also spoke very little English, Alma translated for him as well. Officer Calvert testified they went through the same process (including reading and translating the admonishment) for Rivera as they had done for Robles, except the suspects were presented in reverse order.
Rivera was first shown Gonzales, whom he identified as one of the young men involved in the alley attack on Robles. Rivera was not sure whether the next suspect, Manzo, was involved, however, he positively identified Salinas as one of the attackers in the alley.
Next, Officer Calvert, now joined by two detectives, collected physical evidence from the crime scene, including taking a "fresh" full-sized palm or handprint from the windshield of the truck. The handprint was later matched to David Acevedo-Villa. Detectives also took photographs of a footprint from the rear area of the truck, and collected the beer bottle from inside the truck and three spray paint cans they found in Gonzales's backpack, inside Manzo's vehicle. Fingerprints and DNA samples taken from the beer bottle found in Robles's truck did not match Salinas or Manzo.
After the handprint was matched to Acevedo-Villa, Detective Amalia Sidhu assembled a photo lineup that included Acevedo-Villa. Detective Sidhu separately showed the photo lineup to Robles and Rivera about two months after the incident. Both identified Acevedo-Villa as the person who had kicked the passenger side door of Robles's truck on the night of the attack.
B. Defense
Salinas's primary defense at trial was mistaken identity. One of Salinas's sisters, Mireya, testified that on the night of the incident she heard her brother in her apartment (located adjacent to the alley) between 7:00 p.m. and 7:30 p.m. According to Mireya, Salinas left her apartment and went to another apartment in the same complex to visit Mirna, their sister. About five minutes later, Mireya was told that Salinas and Manzo were being arrested.
Mirna's mother-in-law Josefina testified she was watching Mirna's children that night. Josefina, who lived in the same apartment building, testified Salinas was kind of drunk when he came to her apartment. He stayed and spoke on the telephone to Mirna, who was at work, and then left at about 7:30 p.m. About 30 minutes later, Josefina saw Salinas and Manzo under arrest. She did not hear any disturbance in the alley.
Mirna testified she usually gets off work between 8:00 p.m. and 8:30 p.m., and she was pretty sure it was after 8:00 p.m. on the night of the incident when she spoke with Salinas on the telephone, after she called to speak to her children. She also testified Salinas sounded like he had been drinking, and she arrived home 5 to 15 minutes after she had spoken to him and saw Salinas, Manzo and Gonzales under arrest.
Natalie Reyes was Manzo's fiancé and Salinas's niece. She testified the four of them watched movies together at her uncle's house on the day of the attack, and they left together. Manzo dropped her off at home, in the same apartment building, and he, Salinas and Gonzales went to get her something to eat. Natalie testified she got into an argument with Manzo when he returned about an hour later because he was gone too long and because he still had Salinas and Gonzales with him. As a result, Natalie asked Manzo to leave. About two minutes later, Natalie testified her father told her Manzo was outside, being arrested.
Yenny Adrian is also Salina's niece. She testified she had been going to and from the laundry room in the same apartment building on the night of the attack. She testified it was already dark at about 7:00 p.m. when she saw Salinas, Manzo and Gonzales being arrested. Earlier, she had seen the three walking towards Natalie's house from the front of the building, but from the alley she had not seen them go past the laundry room.
Enrique Tira is the cousin of Manzo's father, and is a licensed private investigator. Tira timed a drive at 7:00 p.m. from the same apartment complex to the restaurant where Manzo first went to purchase food for Natalie, found it took 22 minutes to get there and park, and a little longer to drive back to the apartment complex.
Manzo testified on his own behalf. On the day of the attack, he and Natalie watched movies with Salinas and Gonzales at Natalie's uncle's house. According to Manzo, Salinas drank beer and hard liquor, and by the time they left, Salinas was somewhat drunk. Manzo dropped off Natalie at the apartment complex between 6:00 p.m. and 7:00 p.m. and went to get her something to eat and take Salinas and Gonzales to a friend's house. When their friend was not home, Salinas and Gonzales drove with Manzo to a restaurant. On the way home, they stopped at Salinas's house to pick up movies.
According to Manzo, when they returned to the apartment complex Natalie was angry with him. They argued for about 15 minutes, until she told him to leave. Manzo went outside, where Salinas and Gonzales were waiting. Manzo, Salinas and Gonzales got into Manzo's car. As Manzo was backing out of the parking space, a patrol car pulled up behind them.
Manzo testified on the night of the attack he did not go through the gate into the alley, he did not go into the alley alone or with a group of young men, and he had never hung out in the alley before. He further testified he had never seen Robles until in court, and he had never jumped on Robles's truck. He also said he did not know Acevedo-Villa.
C. Rebuttal
Detective Sidhu, a bilingual Spanish speaker, testified she arrived just as the curbside showups were completed. Detective Sidhu interviewed both Salinas and Manzo on the night of the attack. Salinas told Detective Sidhu he had gone to Mireya's house before the attack, and she had asked him to take out two bags of trash. When he went to the alley to throw the trash away, seven bald Hispanic juvenile males, all wearing sweatshirts with "SD" on them, approached and surrounded him, and stole $15 from him. Salinas informed Detective Sidhu that he told both his sisters he had been robbed that night in the alley.
However, Mireya testified she did not ask her brother to take out any trash on the night of the attack. He also did not tell her anything about being robbed in the alley. Mirna also testified Salinas never told her he had been robbed.
D. Stipulations
The parties entered into the following stipulations: (1) sunset was at 6:24 p.m. on October 8, 2007; (2) Mireya told an investigator for the district attorney's office during an interview on December 27, 2007, that Salinas came to her residence with Natalie between 6:00 p.m. to 7:00 p.m.; (3) the 911 call to report the attack on Robles was made at 7:28 p.m.; and (4) when Gonzales was arrested he told Detective Sidhu on the day of the attack he took a 24-ounce can of Budweiser from the refrigerator at home and drank it in his bedroom, and drank alcohol with Salinas that day.
The trial court also took judicial notice of the court's records and informed the jury that Salinas was on probation on the day of the attack and one of the conditions of his probation was to abstain from consuming alcohol.
DISCUSSION
A. Admission of Out-of-Court Statements of Robles and Rivera Connecting
Salinas to the Attack
At trial, neither Robles nor Rivera could identify Salinas as one of Robles's attackers. Over Salinas's objections, the trial court allowed the People to introduce the out-of-court statements of Robles and Rivera that Salinas was one of the young men involved in the alley attack. Salinas claims the court erred in admitting these statements. We disagree.
Identification of the defendant by a single eyewitness may be sufficient to prove the defendant's identity as the perpetrator of a crime. (See People v. Anderson (2001) 25 Cal.4th 543, 570-575.) A testifying witness's out-of-court identification is probative for that purpose and can, by itself, be sufficient evidence of the defendant's guilt even if the witness does not confirm it in court. (People v. Cuevas (1995) 12 Cal.4th 252, 263-275, overruling People v. Gould (1960) 54 Cal.2d 621, 631; see Evid. Code, § 1238.)
Evidence Code section 1238 provides: "Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by [the witness] while testifying and: [¶] (a) The statement is an identification of a party or another as a person who participated in a crime or other occurrence; [¶] (b) The statement was made at a time when the crime or other occurrence was fresh in the witness' memory; and [¶] (c) The evidence of the statement is offered after the witness testifies that he [or she] made the identification and that it was a true reflection of his [or her] opinion at that time."
Indeed, "an out-of-court identification generally has greater probative value than an in-court identification, even when the identifying witness does not confirm the out-of-court identification: '[T]he [out-of-court] identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness' mind. [Citations.]...' [Citations]." (People v. Cuevas, supra, 12 Cal.4th at p. 265.)
Here, shortly after he was attacked, Robles identified Salinas from a curbside showup as one of the young men involved. In addition, Robles identified Salinas as one of his attackers during the preliminary hearing. At trial, Robles was unable to identify Salinas, although he admitted during his trial testimony he had identified Salinas at the curbside lineup on the night of the attack, and again at the preliminary hearing, about three weeks after the attack, when events were fresh in his mind. We therefore conclude the trial court properly exercised its discretion under Evidence Code section 1238 by admitting into evidence the out-of-court statements of Robles that Salinas was one of his attackers.
In addition, we separately conclude Robles's out-of-court statements were admissible as a prior inconsistent statement under Evidence Code section 1235. Under ordinary circumstances, the testimony of a witness that he or she does not remember a particular event is not inconsistent with a prior statement by the witness describing the event. (People v. Green (1971) 3 Cal.3d 981, 985, 988, overruled on another ground as stated in People v. Martinez (1999) 20 Cal.4th 225, 239, 241.) However, if there is a reasonable basis for concluding that the witness's failure to recall an event is untruthful or the result of evasion, the prior statements are admissible. (See People v. Ledesma (2006) 39 Cal.4th 641, 711.) In such cases, the trial court has discretion to admit the prior statement or statements. (People v. O'Quinn (1980) 109 Cal.App.3d 219, 226.)
Evidence Code section 1235 provides: "Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with [Evidence Code] Section 770."
Here, a reasonable basis exists in the record for Robles's inability (or unwillingness) to identify Salinas as one of his attackers at trial. Robles testified he felt intimidated when a defense investigator (Enrique Tira, a cousin of Manzo's father) visited his home after he testified at the preliminary hearing that Salinas was one of his attackers. Up until Salinas was contacted by the defense investigator, Robles had identified Salinas without hesitation as one of the young men involved in the attack, including at the curbside showup on the night of the incident, when events were freshest in his mind.
Moreover, Robles's neighbor Rivera identified Salinas at the curbside showup on the night of the attack. However, at trial Rivera also testified he could not remember Salinas or his codefendant as being involved. Rivera further testified he could not remember whether any of the young men in the alley that night were Hispanic or Caucasian.
Rivera was more forthcoming than Robles during his trial testimony about being nervous "[b]ecause the people in the incident are here," although he quickly added, "or I don't know." Rivera also said it was hard to testify against those involved in the incident, and he did not feel comfortable testifying. When asked why he did not feel comfortable, Rivera said: "I'm not able to answer." When asked again why he was uncomfortable testifying, Rivera just said: "No."
During a break in the proceedings, the prosecutor informed the court and defense counsel that Rivera's interpreter told him that, in her opinion, Rivera was afraid to testify, although Rivera did not say that directly to her. The court agreed with the interpreter's assessment.
On this record, we conclude Rivera's out-of-court statement that Salinas was involved in the attack was properly admitted under Evidence Code section 1235. (See People v. O'Quinn, supra, 109 Cal.App.3d at p. 226; People v. Cuevas, supra, 12 Cal.4th at p. 265.) As a result, we further conclude any error by the trial court in admitting Robles's out-of-court statements to the same effect was harmless. (See People v. Scott (1978) 21 Cal.3d 284, 296 [the "uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable"]; People v. Watson (1956) 46 Cal.2d 818, 836.)
Likewise, we reject Salinas's contention the trial court committed prejudicial error when, according to Salinas, it allowed the prosecution to ask Robles leading questions regarding his prior identification of Salinas as one of his attackers. The record shows defense counsel interposed a similar objection when Rivera claimed he also could not remember Robles's attackers, arguing, in the presence of the jury, the prosecution was engaging in an "improper form of cross-examination" of Rivera. After defense counsel explained the basis of his objection, the court admonished the jury: "Ladies and gentlemen, you will use your own knowledge of the evidence. You are the trier of facts, and you may evaluate everything that happens here in open court." Thus, we conclude any alleged error by the trial court in allowing such allegedly improper questioning was harmless. (See People v. Watson, supra, 46 Cal.2d at p. 836.)
B. Gang Evidence
1. Photographic Evidence
Salinas next contends the trial court abused its discretion by admitting a photograph of the alley where the crime occurred because, he argues, it "happened to include graffiti." He further contends the court erred when it admitted a photograph of three spray paint cans found in a backpack in Manzo's vehicle when the defendants were stopped and detained by police shortly after the attack on Robles. We reject both contentions.
A trial court is vested with broad discretion in deciding the relevance of specific items of evidence and its ruling will not be disturbed absent an abuse of discretion. (People v. Green (1980) 27 Cal.3d 1, 19, overruled on other grounds by People v. Hall (1986) 41 Cal.3d 826, 834.) Similarly, the trial court is vested with wide discretion in deciding whether, under Evidence Code section 352, the prejudicial impact of specific items of evidence outweighs its probative value. (People v. Champion (1995) 9 Cal.4th 879, 914, disapproved on other grounds by People v. Combs (2004) 34 Cal.4th 821, 860.) The court's determination under Evidence Code section 352 will not be reversed on appeal absent a clear showing of abuse of discretion. (People v. Siripongs (1988) 45 Cal.3d 548, 574.)
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
In the instant case, the prosecutor initially sought to introduce seven photographs of graffiti from the alley where Robles was attacked. Defense counsel objected, noting there was no evidence tying either Salinas or Manzo to the graffiti and/or to gangs. The trial court sustained the objection, noting the primary issue in the case was identification and the photographs were not relevant on that issue. The court noted, however, that it would admit photographs depicting the alley as it existed when Robles was attacked, so long as the graffiti was deemphasized. However, the court agreed its ruling "would not open the door to allow in all the testimony about gang graffiti and about gang evidence [absent] some other showing that [Salinas and Manzo] are gang connected." (Italics added.)
Later in the proceedings, defense counsel renewed its objection to the prosecution's replacement photograph of the alley where Robles was attacked, arguing the focus of the photograph was still to depict graffiti. The trial court disagreed. It found the replacement photograph did not emphasize graffiti, and that while there was some writing on an old wooden fence depicted in the photograph, the writing was not legible. The court thus ruled the replacement photograph was not prejudicial under Evidence Code section 352. The court further noted the photograph also was not prejudicial because the jury already had been told in opening statements that neither Salinas nor Manzo lived in that neighborhood.
Thus, the record shows the court initially excluded seven photographs as unduly prejudicial because they highlighted graffiti in the alley. The court later admitted the photograph in question only after it found the writing on the fence could not be made out, did not emphasize graffiti, and assisted the jury by allowing it to see the crime scene. On this record, we conclude the trial court properly exercised its discretion when it determined the replacement photograph of the alley, where the attack occurred, was relevant and not unduly prejudicial to Salinas.
We reach the same conclusion with respect to the photograph of the three spray paint cans police found in Gonzales's backpack inside Manzo's vehicle. Defense counsel objected to the admission of the photograph, claiming it was irrelevant and unfairly portrayed the defendants as gang members when in fact there was no evidence of such.
The trial court disagreed. It noted the spray paint cans were found in Manzo's vehicle when police stopped and detained the defendants shortly after the attack on Robles. It further noted the spray cans could be relevant on the issue of identity, inasmuch as Robles was told by his attackers not to drive through their "varrio" (neighborhood), an area marked with graffiti. Because Salinas and Gonzales were together for several hours before the incident, Gonzales's possession of the spray paint and defendants' proximity to the alley support an inference defendants were in fact in the alley when Robles was attacked. The fact there may have been an innocent explanation for Gonzales's possession of the paint does not, on this record, render the photograph irrelevant or unduly prejudicial for purposes of Evidence Code section 352. (See People v. Catlin (2001) 26 Cal.4th 81, 127 [the possibility that there is an innocent explanation for otherwise admissible evidence goes to weight and does not bar admission].)
2. Testimony Regarding Robles's Neighborhood
Salinas also argues the trial court erroneously overruled defendant's objections to the prosecutor's direct examination question of Robles regarding what his neighborhood and alley were like and specifically whether there was graffiti in those locations. In overruling these objections, the court noted:
"The People's theory is that whoever committed this offense, it is motivated... [and] based upon gang behavior. And the victim, from the court's understanding, understands that and lives in this community, and this is what the victim's surrounded with and this is what may have propagated the fear or lack of fear of the victim as it relates to these offenses. [¶] Now, [defense counsel] you're asking me to deny the People the right to have the victim come in and testify about his neighborhood and why he may have felt the way he felt or didn't feel the way that he is suggested to have felt, and I'm not prepared to do that.... If you are asking me to keep law enforcement from coming in and highlight[ing] the fact that this is a dangerous gang neighborhood, then I'm prepared to do that. [¶] But I'm not prepared to deny the witness -- the alleged victim to come in and talk about his fears whether they be real or not. I think he has a right to describe his neighborhood, talk about it, and talk about what happened."
We conclude the trial court properly exercised its discretion when it found the jurors had a right to hear the operative facts regarding the offense, including descriptions by Robles and Rivera of their neighborhood and the alley, the young men who frequently gathered in the alley and the fact there was some graffiti in the area.
C. Rebuttal Evidence
Salinas next argues the trial court abused its discretion by allowing Detective Sidhu to testify on rebuttal to statements made by Salinas at the police station on the night of his arrest. During that interview, Salinas told Detective Sidhu he had been robbed in the alley by seven Hispanic juveniles while taking the trash out for his sister Mireya.
As Salinas notes, the decision to admit rebuttal evidence rests largely within the discretion of the trial court and will not be disturbed on appeal in the absence of demonstrated abuse of that discretion. (§ 1093, subd. (d); People v. DeSantis (1992) 2 Cal.4th 1198, 1232.) " '[P]roper rebuttal evidence does not include a material part of the case in the prosecution's possession that tends to establish the defendant's commission of the crime. It is restricted to evidence made necessary by the defendant's case in the sense that he has introduced new evidence or made assertions that were not implicit in his denial of guilt.' Restrictions are imposed on rebuttal evidence (1) to ensure the presentation of evidence is orderly and avoids confusion of the jury; (2) to prevent the prosecution from unduly emphasizing the importance of certain evidence by introducing it at the end of the trial; and (3) to avoid 'unfair surprise' to the defendant from confrontation with crucial evidence late in the trial." (People v. Young (2005) 34 Cal.4th 1149, 1199, quoting People v. Carter (1957) 48 Cal.2d 737, 754-754.)
Here, Detective Sidhu's testimony was relevant to Salinas's alibi defense, and was in response to the testimony offered by Salinas's sisters, albeit on cross-examination, that Salinas never told them he also had been robbed in the alley on the night of Robles's attack. Salinas's statements to Detective Sidhu were also relevant to Meriya's testimony that she did not ask her brother to take out the trash that night.
Moreover, the record further shows there was no "unfair surprise," as the prosecution had merely indicated at the beginning of trial it did not intend to use Salinas's statements at that time. There is nothing in the record to suggest the prosecution agreed not to use, or was excluded from using, these statements for any purpose and for all time, including on rebuttal.
In addition, before rebuttal the prosecution advised the trial court and defense counsel of its intent to introduce Salinas's statements, and the trial court stated it would consider a continuance if Salinas changed his mind and intended to testify on his own behalf in surrebuttal in light of the admission of his statements.
Detective Sidhu's rebuttal testimony also was not a "material part of the case" and did not "[tend] to establish the defendant's commission of the crime" (People v. Carter (1957) 48 Cal.2d 737, 753) because the testimony tended to be exculpatory, namely: Salinas's sister asked him to take the trash out and while in the alley Salinas also was attacked by seven Hispanic juveniles. On this record, we conclude the trial court properly exercised its discretion when it admitted Salinas's statements to Detective Sidhu in rebuttal. (See People v. Carrera (1989) 49 Cal.3d 291, 322 [testimony that fortifies a part of the prosecution's case that has been impeached by the defense is the proper subject of rebuttal].)
In any event, even if the trial court erred in permitting Detective Sidhu's rebuttal testimony, we conclude that error was not prejudicial. Error in the admission of rebuttal evidence is prejudicial only if it was reasonably probable the jury would have reached a result more favorable to the defendant in the absence of the error. (People v. Crew (2003) 31 Cal.4th 822, 854; People v. Watson, supra, 46 Cal.2d at p. 836.) Here, as noted, the rebuttal testimony was exculpatory in nature. In addition, the alibi testimony suffered from independent inconsistencies, as noted by the People, and as shown by the record. Thus, it is not reasonably likely that the jury would have reached a verdict favorable to Salinas absent such testimony. (People v. Crew, supra, 31 Cal.4th at p. 854.)
D. Jury Note
Salinas also argues the court abused its discretion when, during deliberations, it "denied" the jury's request for a readback of the "[t]estimony of Francisco Robles [and] Armando Rivera; Preliminary hearing—Robles, Rivera (if possible) testimony." In informing counsel of the note, the trial court stated it already had asked the court reporter to put together a readback of the trial testimony of Robles and Rivera, but it would not permit a readback of the preliminary hearing transcript of Robles because it was not in evidence and the jury was not entitled to it. The court also instructed the bailiff to determine whether the jurors were available that afternoon for the readback of the trial testimony of Robles and Rivera. After conferring with the jury, the bailiff informed the court of the jury's preference that the readback start the following Monday.
Defense counsel interpreted the note as a request by the jury for a readback of a portion of Robles's preliminary hearing testimony, which defense counsel had read into the record during his cross-examination. Defense counsel noted that if the court intended to include all of the trial testimony of Robles and Rivera in the readback on Monday, including their cross-examination, the jury would also hear Robles's preliminary hearing testimony.
The court and defense counsel agreed the jury note was confusing, however, because the jury also requested a readback of the preliminary hearing testimony of Rivera, even though he did not testify in that proceeding. Because the court did not want to speculate, it decided the best course was to ask the jury to articulate specifically what it wanted from the court with regards to the preliminary hearing testimony. Defense counsel for Salinas and Manzo agreed with this approach.
The trial court's note back to the jury provided:
"The Court Reporter is prepared to read the testimony of both witnesses Mr. Robles and Mr. Rivera. [¶] You have requested 'Preliminary hearing—Robles, Rivera (if possible) testimony.' [¶] Limited sections of Mr. Robles' Preliminary Hearing testimony were admitted in the trial. No other Preliminary Testimony is in evidence. [¶] If you have any further request, please submit them in writing. [¶] Thank you."
The same day it received the court's note, the jury responded as follows:
"We agree as a group we do not need to hear any further testimony. [¶] Thank you."
The record thus belies Salinas's argument the trial court prevented the jury from hearing Robles's preliminary hearing testimony. The record instead shows the court intended to allow the jury to hear that testimony, along with the other trial testimony of Robles and Rivera, in the readback. Defense counsel acknowledged as much, when he noted that if the court intended to include all of the trial testimony of Robles and Rivera in the readback on Monday, the jury would also hear Robles's preliminary hearing testimony.
The record also shows the defense counsel agreed with the trial court's assessment that the jury was confused regarding the preliminary hearing testimony, and defense counsel agreed with the court's approach to this issue, which was to provide a readback of the trial testimony of Robles and Rivera, to inform the jury only a limited portion of Robles's preliminary hearing testimony had been admitted into evidence and to ask the jury for clarification concerning its request. The jury responded it no longer needed to hear any additional testimony.
The record thus shows the trial court did not refuse the jury's request for a readback of Robles's preliminary hearing testimony, did not abuse its discretion in this situation and in any event, defense counsel agreed with the court's response. (See People v. Robinson (2005) 37 Cal.4th 592, 634 ["a claim of error in the selection of the testimony read back to a jury, as well as any alleged impropriety or failure to comply with section 1138, is waived by defense counsel's failure to object at the time the trial court directed the readback"]; People v. Roldan (2005) 35 Cal.4th 646, 729-730, overruled on another ground as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Section 1138 provides: "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called."
Finally, we note any error by the trial court in connection with the jury's note is harmless, inasmuch as the jury decided before the readback of the testimony of Robles (which would have included his testimony on cross-examination) it did not need any additional evidence. (See People v. Watson, supra, 46 Cal.2d at p. 836.)
DISPOSITION
The judgment of conviction is affirmed.
WE CONCUR: McCONNELL, P. J., McINTYRE, J.