Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 154580A
Sepulveda, J.
In a drive-by gangland shooting, defendant Lionel Shell killed an innocent bystander and wounded a rival gang member. Defendant confessed the shooting to the police, and two accomplices identified defendant as the shooter. At trial, defendant recanted his confession, denied all participation in the shooting, and implicated another gang member. A jury rejected the defense and convicted defendant of first degree murder, attempted murder, and shooting from a motor vehicle. (Pen. Code, §§ 187, subd. (a), 664, 12034, subd. (c).) The court sentenced defendant to life in prison without parole. Defendant appeals the judgment.
Defendant maintains that the court erred in denying his motion to disclose the identity of a police informant who reported conversations with gang members after the shooting implicating others. (Evid. Code, § 1041, subd. (a)(2).) Defendant also challenges the use of standard jury instructions on circumstantial evidence, in-custody witnesses, and unjoined perpetrators. (CALCRIM Nos. 224, 337, 373.) Finally, defendant asserts that the court erred in failing to sustain an objection to the prosecutor’s closing argument that supposedly understated the prosecution’s burden of proof. We find no errors and affirm the judgment.
The parties have slowed our review of the record by failing to provide adequate record citations. Each factual assertion must be followed by a supporting citation to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C).) Appellant’s opening brief fails to meet this standard. The opening brief contains numerous and varied assertions in long paragraphs that end with multiple citations to several different volumes of the reporter’s transcript. It is impossible to determine which assertion is supported by which citation. Although respondent rightly provides citations for each assertion, the citations are sometimes inaccurate. For example, respondent’s description of video surveillance tapes from the scene of the crime is unsupported by the record citations provided. The parties are urged to use greater care when citing the record.
Acorn and Lower Bottoms are rival street gangs in West Oakland engaged in a turf war. On the afternoon of January 31, 2006, Lower Bottoms member Anthony “Ant” Henderson was shot in the back by a member of the Acorn gang near McClymonds High School. Lower Bottoms retaliated later that day with the shooting at issue here.
A. The shooting
Jonathan “Red Bone” Gonzalez is an Acorn member. On the night of January 31, 2006, Gonzalez was standing in front of a store speaking with Gamel Attayeb, a friend of the store owner and unaffiliated with any gang. Gonzalez noticed a car moving slowly toward him and saw a rifle pointed out the rear passenger window on the driver’s side. Gonzalez ran and told Attayeb to do the same. Gonzalez heard seven to ten shots fired in rapid succession. A bullet struck Gonzalez in the arm. The bullet shattered a bone in his forearm, leaving him with pain and limited mobility in his hand two years later. Attayeb died within minutes from a single bullet entering his torso that ripped through major organs and arteries. The fatal injury was consistent with a high-powered rifle shot. The police recovered seven shell casings at the scene of the shooting: all Winchester 7.62 caliber cartridges fired by a single AK-47 type rifle.
B. The surviving victim’s testimony and police statement
At trial, Gonzalez said he saw the shooter for only “half a second” and was unable to identify him. Gonzalez was a reluctant witness who said he worried for his safety if he “snitch[ed].” Gonzalez did admit giving the police a limited description of the events two weeks after the shooting. In his conversation with the police, which was surreptitiously recorded, Gonzalez described the shooter as an African-American male with “dreads,” a type of hairstyle. Gonzalez said the shooter “looked like [Matthew T.]” but the rumor on the street was that it was Anthony Harris, and Matthew T. and Harris look alike. The police asked Gonzalez, “[s]o you think [Matthew] shot you,” and Gonzalez replied “[h]e shootin’ all my niggas.” The police tried to determine what Gonzalez actually saw, not his suppositions. Gonzalez told the police “I’m not saying [Matthew] shot me,” but “[i]t looked like [Matthew] or Anthony” and people “say Anthony did the shooting.” Gonzalez also told the police the vehicle was a “gray, or a grayish blue bucket [¶]... [¶] like the little—little Chevy Nova” from the 1980s. Gonzalez said the rifle looked like an SKS or AK-47 type of rifle, although he was unsure of the difference. At trial, Gonzalez said he named Matthew T. and Anthony Harris based on things he heard on the street, not his observation of the shooter.
We refer to individuals by their first name and last initial, or initials alone, when necessary to protect the identity of minors.
Gonzalez is African-American, as are most of the Acorn and Lower Bottoms gang members.
A “bucket” is an old car.
C. The police investigate leads from an informant
On the same day that the police interviewed Gonzalez, they pursued their investigation of possible suspects in the shooting by conducting a parole search of Lavon Mitchell, a Lower Bottoms gang member. A significant part of the information that led to the search came from a police informant. At trial, the police referred to the informant as “[a] confidential reliable informant,” which was described as someone who works with the police and who has provided information in the past that proved accurate. This informant began providing the police with information about the shooting the day after it occurred. The information included the names of suspects and the location of the murder weapon. The informant never named defendant as a suspect.
Based on the informant’s report, the police searched parolee Mitchell for the murder weapon. Parole searches are limited in scope to the parolee’s room, person, and belongings. No firearm was found during the parole search. On the same day as the search, and shortly after it was concluded, the police informant reportedly saw C.T. (Matthew T.’s brother) walking down the street “with a long cylindrical object stuffed down his pant leg” before entering C.T.’s house. Based on this observation of a possible “transfer of the rifle” from Mitchell’s house to C.T.’s house, the police obtained a warrant and searched the latter’s house the following day for firearms. The police looked for the murder weapon but it was not found. However, other firearms were found in the house, and people were arrested. Those arrested were Matthew T., Maurice J., and Tommy “Twin” Miller, all Lower Bottoms gang members. The firearms seized were three handguns and a shotgun. The police also seized an empty, detachable ammunition magazine for an assault rifle. One of the officers who conducted the search testified that the magazine was for 7.62 caliber ammunition. A police evidence technician testified that 7.62 caliber is a common size of ammunition and that, in her experience, every rifle shooting she has seen used either 7.62 or.223 rounds.
D. Maurice implicates himself and others
The police interviewed Matthew T. and Maurice J., and it is the interview of Maurice that led the police to defendant and two other men charged with the shooting. Four individuals were charged with participation in the shooting: Maurice, Tonney Killingsworth, Mario “Rio” Hairston, and defendant Lionel Shell. In an initial interview, Maurice implicated another individual named Lionel—Lionel Green—instead of defendant Lionel Shell. Maurice later identified defendant Shell as the shooter, and said he misdirected the police earlier because he “didn’t want to give [his] friend up.” The police arrested defendant and, later, Killingsworth and Hairston.
Maurice’s police interview was not admitted in evidence for the truth of the matters asserted. The police used Maurice’s statement to interrogate defendant, and the defense introduced Maurice’s interview for the limited purpose of showing defendant’s state of mind in hearing his friend’s accusation.
E. Defendant’s confession
Defendant identified himself as a Lower Bottoms gang member when arrested and booked in jail. Defendant is an African-American with dreadlocks, which matches the limited description provided by victim Gonzalez. Sergeant Tony Jones interviewed defendant, and obtained a confession. Defendant’s denials lasted for an hour and forty minutes, during which Sergeant Jones played a portion of Maurice’s statement to defendant and urged him to tell the truth. This early segment of the interview was memorialized in police notes but not tape recorded. Sergeant Jones testified that, at one point during this early stage of the interview, defendant “put his head down on the table, he got back up and he said ‘This is fucked up. Them dudes ain’t cool.’ ” A break was taken when defendant said he was hungry.
After defendant ate a meal, the police reentered the room and defendant said “ ‘Okay, I was playing earlier,’ ” and started describing the shooting. Defendant said Maurice, Killingsworth, and Hairston were in the car with a rifle when they picked him up and told him they were “going to do a hit on the Acorn” gang. Defendant said they pointed out the target, told him to shoot, and “he felt like he had to or they were gonna do something to him” so he “opened fire.” In the interview, defendant indicated the location of the car and victim on a diagram and described the car occupants’ seating arrangement. Defendant said Killingsworth was driving, Hairston was in the front passenger seat, Maurice was in the rear seat behind the passenger, and defendant himself was in the rear seat behind the driver. Defendant thus admitted sitting in the seat from where the victim Gonzalez reported shots fired. Defendant identified Maurice, Killingsworth, and Hairston from a line-up of six photographs for each man.
After this early stage of the interview, Sergeant Jones tape recorded a confession from defendant and that confession was played for the jury. We reviewed a written transcript that shows the statement to be consistent with defendant’s earlier admissions to the police. Defendant said he was at the corner of 15th and Center Streets when Maurice, Killingsworth, and Hairston picked him up in a “a gray little bucket” and told him they were “ ‘fixing to do a hit.’ ” A rifle was already in the car. Defendant admitted firing the rifle “[a]bout like six times” from his seat behind the driver, Killingsworth. Defendant said the target was Gonzalez, and the shooting was in retaliation for an Acorn school shooting of Maurice’s friend, Anthony, earlier that day. Defendant was able to describe the clothes worn by his accomplices and the precise driving route taken to the scene of the shooting. Defendant said he felt pressured by the others to do the shooting, that his target was Gonzalez and that Attayeb’s death was an “accident.” Defendant said he left the rifle in the car after the shooting and went to a friend’s house.
About four hours after making this confession to Sergeant Jones, defendant repeated it to a deputy district attorney and district attorney inspector. An audiotape of the statement was played for the jury, and we have reviewed a written transcript. The statement is consistent with his police confession.
F. Participants in the shooting identify defendant as the shooter
Killingsworth and Hairston were arrested and they each told the police that defendant was the shooter. At trial, Killingsworth and Hairston admitted their participation in the shooting and identified defendant Shell as the shooter. Killingsworth testified that he and Hairston were together playing a video game when he received a telephone call from Maurice J. saying “they’re out there” and asking for a ride “to Acorn” to “get on somebody.” Killingsworth understood that Maurice wanted to shoot an Acorn gang member to retaliate for Ant’s shooting. Ant is a friend of Maurice and defendant. Killingsworth, with Hairston as passenger, drove Killingsworth’s old, gray Chevy Nova to 15th and Center Streets, where they picked up Maurice and defendant. Maurice sat behind Hairston, and defendant was behind Killingsworth, the driver.
The four men drove through the Acorn area, saw Gonzalez, and then drove to defendant’s home where he picked up a MAK-90 rifle. The men returned to the store where Gonzalez was seen. Killingsworth drove slowly past the store and defendant started shooting out the rear window. Killingsworth thought defendant fired “[p]robably like four or five shots.” The men saw someone fall, Maurice said “ ‘[h]e hit, he hit,’ ” and Killingsworth pulled the car away. Killingsworth dropped off defendant and Maurice near defendant’s home. Killingsworth said defendant took the rifle with him.
The MAK-90 is a Chinese version of the Russian AK-47 rifle. The AK-47 is named for its inventor and year of invention: Mikhail Kalashnikov in 1947. The rifle has been copied by many countries over the years, including China. The model name MAK-90 stands for Modified AK-1990. (
Killingsworth agreed to testify in exchange for a negotiated disposition in which he pleaded guilty to involuntary manslaughter with a 24-year prison sentence. Hairston also agreed to testify in exchange for a negotiated disposition. Hairston pleaded guilty to manslaughter with a 13-year sentence.
Hairston’s testimony agreed with Killingsworth’s in all material respects. Hairston testified that he was with Killingsworth when Killingsworth received a telephone call from Maurice asking for a ride. Killingsworth and Hairston drove Killingsworth’s “little gray car,” a “Chevrolet or something,” to 15th and Center Streets where they picked up Maurice and defendant. The four men went to defendant’s house where he picked up a MAK-90 rifle. The men drove to Acorn to retaliate for Ant’s shooting earlier in the day. Defendant was in the rear seat behind the driver, Killingsworth. Defendant fired “four or five” shots at Gonzalez who was standing in front of a store talking with someone. Hairston heard Maurice say “he hit, he hit,” and the men drove away.
G. The Defense
Defendant testified at trial and recanted his confession. Defendant denied all participation in the shooting, and said he confessed because he was “scared” and under pressure by Sergeant Jones who offered to talk to the district attorney about charging defendant with manslaughter, and not murder. Defendant did not offer an alibi at trial. On cross-examination, the prosecutor asked defendant where he was on the day of the shooting, and defendant said: “I don’t remember.” Defendant admitted that, about five months before the fatal shooting, he was arrested carrying a loaded handgun following the shooting of another Lower Bottoms gang member. At that time, he was arrested in the company of gang member Michael J., Maurice J.’s brother. Defendant also admitted being a crack cocaine dealer.
The defense offered two character witnesses: defendant’s high school coach in football and track, and a high school teacher. The coach said defendant was not a violent person during the time he knew him, through June 2004 when defendant left school. The teacher also opined that defendant is not violent and described him as “a gentle person.”
In defense counsel’s closing argument to the jury, counsel emphasized victim Gonzalez’s statement to the police that the shooter looked like Matthew T. and argued that a reasonable doubt existed as to whether Matthew—and not defendant—was the actual shooter. Counsel noted that a police informant led the police to the house of Matthew, not defendant. Counsel argued: “there is a reasonable possibility that it was [Matthew] that did this shooting.”
H. Jury verdict and sentencing
The trial lasted a month, and the jurors deliberated for six days. The jury found defendant guilty of first degree murder of Attayeb perpetrated by means of a firearm discharged from a motor vehicle and committed by an active participant in a criminal street gang to further the activities of the gang. (Pen. Code, §§ 187, 189, subd. (a), 190.2, subd. (a)(21), (22).) The jury also found defendant guilty of attempted murder of Gonzalez and shooting from a motor vehicle. (Pen. Code, §§ 187, subd. (a), 664, 12034, subd. (c).) Several enhancements were found true: the crimes were committed to benefit a street gang, and personal and intentional discharge of a firearm caused death to Attayeb and great bodily injury to Gonzalez. (Pen. Code, §§ 186.22, subd. (b)(1), 12022.5, subd. (a), 12022.53, subds. (b), (c), (d) & (e)(1), 12022.7, subd. (a).)
The court sentenced defendant to life without parole for Attayeb’s murder. (Pen. Code, §§ 187, 190.2, subds. (a)(21), (22).) Defendant was sentenced to an additional term of 42 years to life for the attempted murder of Gonzalez: the 7-year midterm for the principal offense, plus 25 years to life for discharging a firearm causing great bodily injury, plus 10 years for committing the crime for a street gang. (Pen. Code, §§ 186.22, subd. (b)(1)(C), 187, subd. (a), 664, subd. (a), 12022.53, subd. (d).) Sentence for the shooting from a motor vehicle offense was stayed. (Pen. Code, § 654.)
II. DISCUSSION
Defendant contends that his convictions must be reversed because the trial court erred in (1) denying defendant’s motion to disclose the identity of a police informant who reported conversations with gang members after the shooting implicating others (Evid. Code, § 1041, subd. (a)(2)); (2) administering standard jury instructions on circumstantial evidence, in-custody witnesses, and unjoined perpetrators (CALCRIM Nos. 224, 337, 373); and (3) failing to sustain an objection to the prosecutor’s closing argument that supposedly understated the prosecution’s burden of proof. We turn to a discussion of these contentions.
A. The court properly denied defendant’s motion to disclose a police informant’s identity
The government has a privilege to refuse to disclose the identity of a person who has furnished information to the police concerning the commission of crimes. (Evid. Code, § 1041.) The privilege is founded on the recognition that informants lose access to crime-prevention information when their identities are known publicly and risk reprisal from those they incriminate. (People v. Hobbs (1994) 7 Cal.4th 948, 957-958.) The privilege is not absolute and must be balanced against a criminal defendant’s right to a fair trial. (People v. Garcia (1967) 67 Cal.2d 830, 843.)
“Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations, the trial court may require disclosure and, if the Government withholds the information, dismiss the action.” (Roviaro v. United States (1957) 353 U.S. 53, 60-61, fn. omitted.) “Whether disclosure of an informant’s identity or the contents of his communication is ‘relevant and helpful to the accused’ or ‘essential to a fair determination of a cause’ will depend in large part on whether the informant is a potential material witness on the issue of guilt.” (People v. Hobbs, supra, 7 Cal.4th at p. 959.) “An informant is a material witness if there appears, from the evidence presented, a reasonable possibility that he or she could give evidence on the issue of guilt that might exonerate the defendant. [Citations.] The defendant bears the burden of ‘ “ ‘adducing some evidence’ ” ’ on this score.” (People v. Lawley (2002) 27 Cal.4th 102, 159.) An informant who participates in the crime or witnesses the crime is more likely to be a material witness than is an informant who “ ‘ “simply points the finger of suspicion toward a person who has violated the law.” ’ ” (People v. Garcia, supra, 67 Cal.2d at pp. 836-837.)
Defendant here moved for disclosure of the identity of an informant who told the police about conversations with gang members after the shooting that implicated individuals other than those ultimately charged with the shooting. (Evid. Code, § 1041, subd. (a)(2).) The trial court denied the motion, without an evidentiary hearing, upon concluding that the informant was not a material witness because there was no reasonable possibility that the informant could give any exculpatory evidence that could not be related by other means during the trial. A trial court’s ruling on such a motion is reviewed for abuse of discretion in the federal courts. (E.g. United States v. Henderson (9th Cir. 2000) 241 F.3d 638, 646; see Roviaro v. United States, supra, 353 U.S. at p. 61, fn. 9.) The applicable standard of review in California remains unsettled. (People v. Gordon (1990) 50 Cal.3d 1223, 1245-1246, overruled on another point in People v. Edwards (1991) 54 Cal.3d 787, 835.) We conclude that the trial court’s ruling was sound under any standard of review, whether judged under the abuse of discretion standard or reviewed de novo.
It will be recalled that evidence about the informant’s communications to the police was admitted at trial. The jury learned that “[a] confidential reliable informant,” one who worked with the police and had provided accurate information in the past, began providing the police with information about the shooting the day after it occurred. The information included the names of suspects and the location of the murder weapon. The informant never named defendant as a suspect. Instead, the informant’s communications led the police to search the home of Lavon Mitchell for the murder weapon and later the home of C.T., whom the informant saw walking down the street “with a long cylindrical object stuffed down his pant leg” shortly after the unsuccessful search of Mitchell.
A more complete account of the informant’s communications with the police appears in the affidavit supporting the warrant to search C.T.’s home. The affidavit states that the informant advised the police, the day after the shooting, of a conversation with Dmario “Rio” Galloway in which Galloway said that he, Miller, C.T., and Matthew T. were responsible for the shooting and used an SKS 7.62 rifle. Sometime later, the informant spoke with Lavon Mitchell and Mitchell said he was holding that SKS rifle for C.T. Two weeks after the shooting, the police searched Mitchell’s bedroom for the rifle, with no success. Immediately after the search, Mitchell told the informant that “ ‘if [the police] had searched the other room, I’d be on my way to jail for a long time.’ ” Mitchell said the SKS rifle was in another room not searched by the police. Mitchell also said that C.T. had recently come to pick up the rifle and take it home. Moments after talking with Mitchell, the informant saw C.T. walk down the street “with what the informant thought was a rifle stuffed down [C.T.’s] pant leg,” and enter C.T.’s house.
In summary, all of the informant’s communications with the police related hearsay statements by Galloway and Mitchell with the exception of the informant’s personal observation (related to the jury via stipulation) of C.T. walking down the street two weeks after the shooting with what the informant thought was a concealed rifle. The informant was not a participant in the shooting nor an eyewitness to the crime but one who “ ‘ “simply point[ed] the finger of suspicion toward a person who has violated the law.” ’ ” (People v. Garcia, supra, 67 Cal.2d at pp. 836-837.) The suspicion, however, was not conjectural but assertedly based on admissions of guilt by Galloway (who claimed responsibility in the shooting) and Mitchell (who claimed to be hiding the murder weapon).
The trial court ruled that these statements by Galloway and Mitchell were inadmissible hearsay that could not be related by the informant if his or her identity were disclosed and the informant subpoenaed for trial. (Evid. Code, § 1200.) The informant therefore was not a material witness because he or she had no admissible, exculpatory evidence to offer. Defendant contests that conclusion.
Defendant argues that Mitchell’s stated possession of the murder weapon was admissible as both a spontaneous statement and a declaration against penal interest by an unavailable witness. (Evid. Code, §§ 1230, 1240.) Mitchell’s statement was not shown to be made “under the stress of excitement” and thus fails to qualify as a spontaneous statement. (Evid. Code, § 1240, subd, (b).) But the second proffered hearsay exception has merit. (Evid. Code, § 1230.) Mitchell was unavailable—he invoked his constitutional right against self-incrimination when called as a witness by the defense outside the jury’s presence. (U.S. Const., 5th Amend.; Evid. Code, § 240, subd. (a)(1).) And the declaration was against Mitchell’s penal interest. According to the police affidavit, Mitchell said “he was holding the SKS rifle for ‘[C.T.]’ that was used to shoot Gonzalez.” Mitchell, a parolee, thus admitted possessing a firearm and being an accessory to a felony. Contrary to the People’s argument on appeal, Mitchell’s statement was not “ambiguous” or merely an admission of possible guilt for “some unspecified crime in the past.”
In contrast, Galloway never took the witness stand, and there was no showing of unavailability.
But Mitchell’s statement was not “evidence on the issue of guilt that might exonerate the defendant.” (People v. Lawley, supra, 27 Cal.4th at p. 159.) Mitchell’s statement was made after the shooting—perhaps as long as two weeks after the shooting—and related that Mitchell was “holding the SKS rifle for ‘[C.T.].’ ” C.T. is defendant’s friend, as defendant admitted at trial. Mitchell and C.T. are also Lower Bottoms gang members, as is defendant, and uncontroverted police testimony established that weapons often circulate among several gang members and are not necessarily possessed or controlled by the person who last used it to commit a crime. In fact, a police officer with expertise in street gangs testified that “[u]sually” gang members who have used a gun to commit a crime “will try to distance themselves from that gun. They don’t get rid of them for the most part but they will pass it on or circulate it to somebody else that maybe is a little farther removed from their particular association or their gang.” Mitchell’s stated possession of the murder weapon days after the shooting therefore does nothing to exonerate defendant of the shooting. In fact, Mitchell’s statement is consistent with defendant’s confession to the police, in which defendant denied possession of the rifle and maintained that the rifle was in the car when the other men picked him up and remained in the car after the shooting.
Defendant argues that the informant was a material witness apart from the informant’s ability to testify about Mitchell’s statements about the rifle. Defendant asserts that the informant’s demonstrated familiarity with Lower Bottoms gang members and conversations with Galloway and Mitchell “suggested” the “possibility” that the informant may have known other facts that could be useful to the defense. That possibility is too speculative to compel disclosure of a police informant’s identity.
Finally, in assessing whether nondisclosure of an informant’s identity was erroneous, we must balance “the public interest in protecting the flow of information against the individual’s right to prepare his defense.” (Roviaro v. United States, supra, 353 U.S. 53, at p. 62.) “Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” (Ibid., italics added.) The significance or materiality of an informant’s possible testimony must be determined by the evidence otherwise admitted at trial. (Ibid.) The significance of this informer’s possible testimony—as to Mitchell’s statements and any other matters—was slight given the admission of evidence that relayed the substance of the informant’s communications to the police. Sergeant Jones testified at trial that a “reliable informant” never identified defendant as having any involvement in the shooting and instead named other people responsible for the shooting. The informant’s communications led the police to search Mitchell for the murder weapon and later to search the home of C.T. The parties stipulated that the informant saw C.T. walking down the street “with a long cylindrical object stuffed down his pant leg” shortly after the unsuccessful search of Mitchell. This evidence of possible third party culpability was ably used by the defense to argue defendant’s innocence and accuse others of the crime.
Defendant maintains that this indirect revelation of the informant’s communications was inadequate and criticizes the “evidentiary contortions” that were “deliberately designed to avoid having to grant the defense motion for disclosure of the identity” of the informant. But the balancing of competing needs (the public interest in protecting informants against a defendant’s right to a fair trial) is sometimes best achieved, as here, by creative alternatives to disclosure. (Simons, California Evidence Manual (2008-2009 ed.) § 5:77, com.) A trial court has “authority to balance the necessity for confidentiality against the necessity for disclosure.” (People v. Superior Court (Biggs) (1971) 19 Cal.App.3d 522, 534.) “That discretion requires consideration of alternative evidence offered by the state. An alternative which fulfills the demanding litigant’s actual needs minimizes or eliminates necessity for fulfilling the original demand and avoids a showdown on the claim of privilege.” (Ibid.) Defendant’s fair trial right was adequately protected here by police testimony and the parties’ stipulation that relayed the fact that a reliable informant incriminated others in the shooting, not defendant, and the informant’s observation of a named suspect with a possible concealed rifle.
Moreover, even if the court erred in denying defendant’s motion to disclose the informant’s identity, the error was harmless beyond a reasonable doubt. There was overwhelming evidence of defendant’s guilt. Defendant confessed the shooting to both police and district attorney personnel, and was identified as the shooter by his accomplices who suffered long prison sentences for their admitted complicity in the shooting. The accounts of the shooting by defendant and the accomplices were highly detailed, and corroborated one another. The accounts by defendant and his accomplices were also consistent with the observations of the surviving victim, Gonzalez, and physical evidence from the scene of the crime.
The physical evidence established that there was one shooter and that the shooter used a 7.62 caliber AK-47 type rifle. Gonzalez told the police that the shooter was an African-American man with dreadlocks holding an SKS or AK-47 type of rifle that he fired from the rear, driver’s side window of an old gray “bucket,” like a Chevy Nova. Killingsworth drove an old gray Chevy Nova, which he and defendant called a “bucket,” and defendant is an African-American male with dreadlocks. Defendant (in his police confession), Hairston, and Killingsworth each said that they met on the corner of 15th and Center Streets, that defendant sat in the rear seat of the car behind Killingsworth, that they drove down 7th Street toward Adeline Street, that defendant shot a rifle multiple times at Gonzalez, and that the shooting was in retaliation for the Acorn gang’s earlier shooting of Anthony Henderson.
An informant’s report that other gang members bragged about shooting a rival gang member or hiding the rifle had no power to refute this compelling evidence of defendant’s guilt. Although most individuals would be both frightened and ashamed to link themselves with criminal activity, the same cannot be said of gang members who build their reputations on violent acts. This fact cannot be ignored in weighing the significance of an informant’s report of gang members taking “credit” for retaliation against a rival gang member. Any error in denying disclosure of the identity of an informant, who may have provided further information or testimony on these matters, was harmless beyond a reasonable doubt.
B. The trial court did not err when instructing the jury
Defendant contends that the trial court erred in administering standard jury instructions on circumstantial evidence, in-custody witnesses, and unjoined perpetrators. (CALCRIM Nos. 224, 337, 373.) No objections to these instructions, nor requests for modification, were made at trial. “A party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial.” (People v. Hillhouse (2002) 27 Cal.4th 469, 503.) Despite this general rule of forfeiture, instructional errors are reviewable on appeal if they affect substantial rights. (Pen. Code, § 1259; People v. Salcido (2008) 44 Cal.4th 93, 155.) We therefore consider defendant’s challenge to the jury instructions but conclude that the instructions were proper.
The defense may even have requested one or more of the instructions. The record contains a copy of the prosecution’s proposed instructions (which includes all of the challenged instructions) but does not show which instructions were requested by the defense.
1. CALCRIM No. 224
The jurors were instructed on the sufficiency of circumstantial evidence in accord with CALCRIM No. 224, as follows:
“Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”
The court has a sua sponte duty to instruct on how to evaluate circumstantial evidence if the prosecution relies on circumstantial evidence to establish any element of the case. (People v. Yrigoyen (1955) 45 Cal.2d 46, 49-50.) An instruction like CALCRIM No. 224 is “generally considered favorable to the defense” because it tells the jury it may not rely upon circumstantial evidence to find a defendant guilty unless the only reasonable conclusion drawn from the evidence points to guilt. (People v. Magana (1990) 218 Cal.App.3d 951, 955.) Defendant here, however, argues that the instruction prejudiced the defense. The argument is difficult to comprehend. As we understand it, defendant argues that the instruction on circumstantial evidence was not required because the prosecution relied upon direct (not circumstantial) evidence, and the instruction was prejudicial because it negated the requirement of proof beyond a reasonable doubt by allowing the jury to convict if it found the prosecution’s case reasonable and the defendant’s case unreasonable. Defendant also asserts that the instruction misdirected the jury from the important question of the credibility of the testimony to the subsidiary question of the reasonableness of the accounts presented in the testimony.
The argument is untenable. First, the instruction was required because the trial court has a sua sponte duty to instruct on how to evaluate circumstantial evidence if the prosecution relies on circumstantial evidence to establish any element of the case, including intent. (People v. Yrigoyen, supra, 45 Cal.2d at pp. 49-50.) Although defendant’s confession provided direct evidence of his guilt on many elements and features of the charged crimes, his intent to kill, premeditation, motive, and active participation as a gang member remained open issues and rested upon circumstantial evidence for proof. As to gang participation, for example, defendant denied being a gang member, denied identifying himself as a Lower Bottoms member when jailed, and testified that no Lower Bottoms gang even exists. The prosecution relied upon circumstantial evidence to prove defendant’s gang participation, including evidence of defendant’s prior arrest and association with known gang members. Although defendant now argues that the prosecution’s case relied exclusively on direct evidence, that was not his position at trial. In closing argument to the jury, defense counsel relied on the circumstantial evidence instruction to defendant’s advantage and said “a lot of this is circumstantial.”
Second, the instruction did not prejudicially lessen the burden of proof. Defendant’s argument that an instruction like CALCRIM No. 224 dilutes the standard of proof beyond a reasonable doubt is an argument that has been considered, and rejected, by our Supreme Court. (People v. Wilson (1992) 3 Cal.4th 926, 942-943; accord People v. DePriest (2007) 42 Cal.4th 1, 52.) Defendant’s attempt to distinguish his case from Wilson is unpersuasive. CALCRIM No. 224 was properly given to the jury.
2. CALCRIM No. 337
The jurors were instructed on testimony from in-custody witnesses in accord with CALCRIM No. 337, as follows:
“When Jonathan Gonzalez, Mario Hairston, and Tonney Killingsworth testified, they were in custody. The fact that a witness is in custody does not by itself make a witness more or less believable. Evaluate the witness’s testimony according to the instructions I have given you.”
Defendant argues that the instruction should not have been given in this case because the custodial status of the named witnesses was not irrelevant, as it may be with witnesses in other cases. Defendant notes that each in-custody witness here exhibited concern at being labeled a snitch, and argues that the instruction wrongly invited the jury to discount this important consideration when assessing credibility. The instruction was proper. It rightly advised the jury that the bare fact of custody alone does not make a witness more or less believable, and directed the jury to other instructions explaining how to evaluate a witness’s testimony. Under those complementary instructions, a witness’s concern with being labeled a snitch and fear of reprisal was weighed in assessing witness credibility. The jury was instructed that factors to be considered in judging a witness’s credibility include the witness’s behavior and attitude about the case or about testifying, and whether the witness’s testimony was influenced by “a personal interest in how the case is decided.” (CALCRIM No. 226.) “ ‘ “[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.” ’ ” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) Read as a whole, the jury instructions properly advised the jury on the evaluation of witness credibility.
3. CALCRIM No. 373
The jurors were instructed on unjoined perpetrators in accord with CALCRIM No. 373, as follows:
“The evidence shows that other persons may have been involved in the commission of the crimes charged against the defendant. There may be many reasons why someone who appears to have been involved might not be a codefendant in this particular trial. You must not speculate about whether those other persons have been or will be prosecuted. Your duty is to decide whether the defendant on trial here committed the crimes charged. [¶] This instruction does not apply to the testimony of Mario Hairston and Tonney Killingsworth” (CALCRIM No. 373.)
Defendant concedes that the instruction “properly excluded Hairston and Killingsworth since there otherwise would be some risk that the jurors would interpret it to disregard the evidence of credibility inher[ent] in their favorable plea agreements.” (People v. Williams (1997) 16 Cal.4th 153, 226-227.) But defendant maintains that the instruction “should not have been given at all since there was indeed a substantial risk here that the jurors would apply it to the evidence impeaching the police investigation leading to the prosecution of [defendant] instead of [Matthew T.]” In short, defendant argues that the instruction told the jurors to disregard evidence that someone else committed the crimes. More specifically, defendant argues that the instruction told the jury to disregard evidence that the police mishandled the investigation by inadequately investigating the possibility that Matthew T. was the shooter.
The instruction did not misdirect the jury in this manner, or in any manner. The instruction simply told the jury not to speculate on whether someone else might or might not be prosecuted for his or her own, separate role in the crimes in another trial—it did not tell the jury to disregard evidence that someone other than defendant was the shooter. Arguments like defendant’s have been firmly rejected: “the instruction does not tell the jury it cannot consider evidence that someone else committed the crime.” (People v. Farmer (1989) 47 Cal.3d 888, 918-919, original italics, disapproved on other grounds in People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.) The instruction is explicit and clear in stating that the jurors’ “duty is to decide whether the defendant on trial here committed the crimes charged.” (CALCRIM No. 373.) If the jurors thought Matthew T., and not defendant, shot Attayeb and Gonzalez they would have understood that their duty was to acquit defendant. Defendant’s convoluted reading of CALCRIM No. 373 is not plausible, and no juror would have misunderstood the instruction to allow defendant’s conviction for a crime committed by another man.
The prosecutor certainly never advocated such an interpretation of CALCRIM No. 373. In closing argument to the jury, the prosecutor properly related the instruction to Maurice J., the fourth participant in the shooting, and the only one not to appear at trial. The prosecutor noted: “Maurice J[.] is someone you’ve heard about. You can’t speculate about what is happening with regard to Maurice J[.] The defendant is the trial that you’re concerned with and the evidence against him.” There is no reasonable likelihood that the jury misunderstood the instruction.
C. The prosecutor did not commit misconduct in her closing argument to the jury
Defendant contends that the prosecutor committed misconduct by misstating the law regarding the prosecution’s burden of proof in her closing argument to the jury. “[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements.” (People v. Marshall (1996) 13 Cal.4th 799, 831.) The prosecutor’s remarks, however, must be judged in the context of her whole argument and the jury instructions on the law. (Ibid.) Viewed in this context, there is no reasonable likelihood that the jury construed the prosecutor’s remarks as lessening the prosecution’s burden to prove defendant guilty beyond a reasonable doubt. (Ibid.)
The prosecution’s remarks were made on rebuttal, after defense counsel repeatedly argued that it was possible that Matthew T., not defendant, shot Attayeb and Gonzalez. Defense counsel relied upon Gonzalez’s police statement in which Gonzalez said the shooter “looked like” Matthew, and argued that the prosecutor was wrong to minimize the value of that statement. Defense counsel interpreted Gonzalez to mean that the shooter positively was Matthew, not simply that the shooter might have been Matthew or had a physical appearance similar to Matthew. Counsel argued that there was a “reasonable possibility” that Gonzalez’s identification was accurate, and this created reasonable doubt in defendant’s guilt.
In referring to the jury instructions, defense counsel argued “the People have the burden of proving beyond a reasonable doubt it was the defendant who committed the crime, which is why I’m saying that in order to vote guilty on [defendant] Mr. Shell you have to determine, based on the evidence, the instructions, and pure everyday common sense that there is no reasonable way in the world that the man who pulled the trigger was [Matthew T.] You need to determine that there is no reasonable possibility under any circumstances that [Gonzalez] got it right. [¶] How [do] you go about proving a negative[?] That’s what, because of the peculiar circumstances of this case where the only living eyewitness is pointing at somebody other than the defendant, [the prosecutor] is in a position of having to prove a negative. She has to prove that the shooter was not [Matthew]. How is she going to do that, I don’t know. I can’t see, she may have an answer for us. But that is the state of the evidence you are faced with. There’s no way around it. [¶] You have to completely reject any reasonable possibility that Mr. Gonzalez got it right.... [U]nless you can determine Mr. Gonzalez was wrong, wrong beyond all possible, reasonable doubt, then this case is clear, your duty is clear and the instructions are clear.”
In rebuttal, the prosecutor responded that Gonzalez told the police only that the shooter looked like Matthew, not that the shooter positively was Matthew. Gonzalez told the police “I’m not saying [Matthew T.] shot me,” but “[i]t looked like [Matthew] or Anthony” and people “say Anthony did the shooting.” The prosecutor asked rhetorically: “Why would [Gonzalez] be asking around on the street who it was that shot him if he knew? Why would he even think it might be Anthony if he knew who it was that shot him? Because the fact of the matter is he didn’t know who shot him. All he knew was it was an African-American man with dreadlocks in that back seat behind the driver.”
The prosecutor then turned to a discussion of the jury instructions. It is this discussion that defendant challenges on appeal. The prosecutor said, “The instruction for reasonable doubt tells you to impartially compare and consider all of the evidence that has been received throughout the trial, so not just one piece of evidence, not just one statement but all of the evidence. The statements that have been received into evidence, the defendant’s statements, the video, the codefendant[s] who have testified in this trial. And you have to consider the proof beyond a reasonable doubt based on all of that evidence. [¶] You will never see an instruction that suggests what defense counsel said to you..., which was that I have to somehow prove that there’s no reasonable possibility that [Matthew] committed this crime. This trial is about the defendant. This trial—[¶] [Defense Counsel]: Misstates the law. Of course that has to be done. [¶] The Court: Overruled. The jury will have the instructions. You may review them. [¶] [The Prosecutor]: This case is about the defendant and the overwhelming proof beyond a reasonable doubt that the defendant committed the crime.” (Italics added.)
The jury was instructed on the law. Among those instructions was the standard reasonable doubt instruction in which the jury was told that defendant “is presumed to be innocent. This presumption requires that the People prove each element of a crime beyond a reasonable doubt.... [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true after you have considered and compared all the evidence. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.” (CALCRIM No. 220.)
On appeal, defendant argues that the prosecutor misstated the law in arguing that she did not have to disprove the possibility that Matthew committed the crimes. Defendant notes that “the defendant need only raise a reasonable doubt regarding a defense that negates an element of the crime, and in this situation the burden of persuasion is on the People to show the nonexistence of the defense beyond a reasonable doubt.” (People v. Saavedra (2007) 156 Cal.App.4th 561, 570.) But defendant’s argument overlooks the legal distinction between reasonable doubt and mere possible doubt, which appears to be the distinction the prosecutor was trying to highlight for the jury. “The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.” (CALCRIM No. 220.) The prosecutor thus argued that she did not have to prove that there was no possibility that Matthew committed the crime while immediately acknowledging the People’s responsibility to prove, beyond a reasonable doubt, that defendant (and no one else) committed the crimes. The prosecutor’s argument seems to have been directed to the remarks of defense counsel, who wrongly conflated reasonable doubt and possible doubt when he argued: “unless you can determine Mr. Gonzalez was wrong, wrong beyond all possible, reasonable doubt, then this case is clear, your duty is clear and the instructions are clear.”
It is true that the prosecutor spoke in terms of reasonable possibilities in arguing that she did not have to disprove a “reasonable possibility that [Matthew] committed this crime,” but there was no risk that the jury interpreted this comment to mean that the People did not have to prove defendant’s guilt beyond a reasonable doubt. The prosecutor made extensive opening and rebuttal arguments to the jury that consume a total of 67 pages of the reporter’s transcript. In the course of her arguments, the prosecutor repeatedly acknowledged her burden of proving defendant guilty beyond a reasonable doubt and of disproving Matthew’s culpability and any other third party’s culpability. As we noted above, the prosecutor’s remarks must be judged in the context of her whole argument and the jury instructions on the law. (People v. Marshall, supra, 13 Cal.4th at p. 831.) Viewed in this context, there is no reasonable likelihood that the jury construed the prosecutor’s remarks as lessening the prosecution’s burden to prove defendant guilty beyond a reasonable doubt.
III. DISPOSITION
The judgment is affirmed.
We concur: Ruvolo, P.J., Reardon, J.