Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA 260309, Frederick N. Wapner, Judge.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Appellant Terrance Steele was found guilty by a jury of first degree murder, conspiracy to commit murder and attempted murder. The jury also found that the crimes were committed for the benefit of, at the direction of, and in association with a criminal street gang; and that a principal discharged and used a firearm. The jury found not true that appellant personally discharged a firearm.
Appellant was sentenced to 25 years to life for the first degree murder; this sentence was enhanced by 20 years under Penal Code section 12022.53, subdivision (c) (discharge of firearm by a principal). Appellant received a concurrent sentence of the high term of nine years for attempted murder and this term was also enhanced by 20 years under Penal Code section 12022.53, subdivision (c). The conviction for conspiracy was stayed pursuant to Penal Code section 654. Thus, appellant’s sentence is 45 years to life. Various fines and assessments were imposed and appellant received 798 days of presentence custody credit. He appeals from the judgment, which we affirm.
FACTS
The murder victim was Roy Jackson, a friend of appellant’s. Jackson was shot on February 15, 2003, while he was in the company of Darrell Williams, who was charged as appellant’s codefendant with Jackson’s murder. Williams’s case was severed from appellant’s prior to trial.
The source of the facts upon which appellant’s conviction is predicated is a statement made by appellant on March 13, 2003, to Los Angeles Police Detectives Blair McCormack and Eric Holyfield; we relate the circumstances under which appellant made that statement in part 1 of the Discussion. McCormack took the stand at trial and related appellant’s statement, which follows.
On February 15, 2003, appellant and another man named Demar were at a liquor store where appellant received a telephone call from a female who said that Michael McCullough and Ron Mateo were on their way to the liquor store, carrying guns. McCullough and Mateo were members of the Bounty Hunters gang, while appellant, Jackson and Williams were all members of a rival gang, called the Top Dollar Hustlers.
Appellant and Demar got into a car and drove off. As they were driving away, they saw McCullough and Mateo heading in appellant and Demar’s direction; appellant thought that they might be armed with guns.
Appellant telephoned Jackson, whom he characterized as his friend, and asked Jackson for a gun. Appellant and Jackson agreed to meet, which they did later that night at Roshanda Baker’s house, who was Jackson’s girlfriend. Williams was also present.
Prior to the meeting, appellant drove by the 900 block of West 47th Street, where he saw Andre Griffin, who also belonged to the Bounty Hunters, McCullough and Mateo standing on the sidewalk across the street from 965 West 47th Street.
During the meeting between appellant, Jackson and Williams, Jackson came up with a plan to sneak up on Griffin, McCullough and Mateo and shoot them. According to Jackson’s plan, Williams and Jackson would do the shooting. Jackson had a .45 and he gave a .38-caliber to Williams. Appellant did not have a gun. According to Jackson’s plan, appellant’s “job was going to be to stand by in the back and after the shooting, Jackson and Williams would come by and hand him the guns. He [appellant] would hide the guns while they made the getaway or fled the location.”
Detective McCormack was asked by the district attorney why it was that it was Williams who got the second gun, and not appellant, who had asked for a gun. McCormack explained: “The reason that Williams got the gun versus Steele was -- Williams is a cousin to -- Dre or -- and he was very reluctant to do the shooting. And Jackson had to convince him that he was going to do, do the shooting because, umm, he had, you know, to prove that he was going to -- that he was reliable enough and he was -- it was like his turn to do it.” In order to convince Williams to take part in the shooting, Jackson reminded Williams that Griffin had instigated a beating of Williams administered by McCullough and Mateo, and that Griffin stood by and watched without doing anything to help Williams.
The reference is to Andre Griffin.
Appellant then related that the three of them came through an alley to the rear of 965 West 47th Street “into the backyard where [appellant] was going to wait for them [Jackson and Williams] while they went up ahead and hid behind the bush on the corner of 965. And then they would at the right time, jump out and start shooting.” Jackson and Williams proceeded, leaving appellant behind, as planned.
Appellant heard two guns being fired, which he described as Jackson’s and Williams’s guns. Appellant moved up toward Jackson and Williams when he saw Williams running in his direction. As Williams ran past appellant, Williams called out that “Bucky [meaning Jackson] got laid,” which appellant understood as meaning that Jackson had been shot. At that point, Williams did not hand appellant any guns. Later that day, Williams did ask appellant to take his gun but appellant refused because he didn’t want to become involved with, or be accused of, the shooting of Jackson.
After Williams ran off, appellant moved forward to find out where Jackson was. “As [appellant] got closer, he could hear rounds being fired in his direction and which unabled [sic] him to get closer to Jackson, but he could see that Jackson was down and so he left.” As we note below, the prosecution’s theory of the shooting was that Williams accidentally shot Jackson.
Detective McCormack was asked whether appellant explained why he thought that Williams shot Jackson. McCormack stated that appellant’s reason for thinking that Williams shot Jackson was that appellant “could hear both guns being fired, Jackson’s and Williams’ guns, and that he saw Williams coming back and heard no other shots being fired. And when [appellant] saw Jackson laid out, it was [appellant’s] opinion that Williams had shot him.”
The foregoing account is based, as we have noted, on appellant’s statement of March 13, 2003, to Detectives McCormack and Holyfield. Roshanda Baker, Jackson’s girlfriend and the mother of his children, provided some corroboration. She testified at trial that on the night of the shooting she was in her house when she heard shots being fired. She went outside and saw appellant running up through the front gate and onto the porch of her house; Williams followed shortly afterwards. Appellant took Baker inside the house. When she asked him where Jackson was, appellant said that he had been shot. Appellant, who seemed nervous and scared, went on to say that if Jackson had been shot in the back, Williams had shot him.
When the police arrived at the scene of the shooting, they found Jackson, who had been shot in the back of his neck, which was the cause of death, and a .45-caliber handgun by Jackson’s body. The police also found several spent shells and bullet fragments, which had been fired from the .38- and .45-caliber weapons.
After appellant refused to take Williams’s gun, Williams hid it but apparently someone saw him doing so; that person moved the gun to the rear of a building on 47th Street. Approximately a week after the shooting, the police received an anonymous phone call that guided them to the rear of 965 47th Street, where they found a .38-caliber gun. The bullet recovered from Jackson’s body was from the .38-caliber weapon found by the police.
Appellant presented no evidence on his behalf.
We defer a discussion of gang evidence to our treatment of appellant’s contentions that are predicated on that testimony.
DISCUSSION
1. Appellant’s Statements to the Police Were Not Coerced
Appellant made two statements to the police, the first on March 13, 2003, which we have summarized ante, and the second on June 15, 2004, which we discuss post. Appellant contends that both statements were coerced. Appellant’s motion to exclude these statements was denied by the trial court.
We state the circumstances under which both statements were made, note the substance of the June 15, 2004 statement, briefly set forth the trial court’s rulings and conclude that neither statement was coerced.
According to Detective Holyfield, he left a message on March 12, 2003, with appellant’s girlfriend that he wanted to speak with appellant and left his telephone number. The next day, appellant showed up at the police station without calling Holyfield; according to Holyfield, appellant came to the station voluntarily and without being asked to do so.
Holyfield told appellant that he was not under arrest and that “he was going to be going home as soon as we finished talking with him.” According to Holyfield, he told appellant that he was free to leave. Before asking appellant any questions, Holyfield read appellant his Miranda rights; appellant stated that he understood his rights. Holyfield stated that he read appellants his Miranda rights because he did so as a matter of practice when interviewing a “possible suspect.” The interview lasted about 20 or 25 minutes. According to Holyfield, no promises or threats were made by either detective. Holyfield thought he was recording the interview. It turned out, however, that for some reason the machine did not pick up anything that was said.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Appellant, who testified in the hearing on the motion to exclude his statements, gave a diametrically different description of the circumstances and substance of the March 13, 2003 interview. Appellant testified that there were numerous calls by the police to his mother and girlfriend that advised that it was in appellant’s best interests to come to the station. When appellant finally called back and stated that he didn’t want to come to the station, Holyfield told him that if appellant did not come, the police would “take matters in their own hands.” Appellant felt threatened and made an appointment to come to the station on March 13.
At the station on March 13, after Holyfield read appellant his rights, appellant stated that he did not want to give up his right to remain silent because he did not have a lawyer present. McCormack thereupon used the “F” word and told appellant that everyone knew that appellant had been at the scene of the shooting and that the detectives needed to have appellant make a statement. Appellant protested that he did not know what happened. McCormack “said quit feeding him that bullshit and, uhm, be cooperative, or it’s going to be a problem.” After more of the same from McCormack, Holyfield told appellant that if he acknowledged that he had been present, the Jackson family could get some insurance money, and Jackson could have a proper burial. It also appears that Holyfield left a fake “wanted” poster with appellant’s photograph lying around on the table. Although appellant continued for a while to refuse to make a statement, the detectives finally convinced him to say that he had been present, that he was only going to grab the gun after the shooting, and that the shooting itself was an accident. After making this statement, appellant was allowed to leave the station.
Appellant was in custody on June 15, 2004, when the second statement was taken. The place was the 77th Street police station. Holyfield wanted to record, or, in his words, “memorialize,” the statement that appellant had made on March 13, 2003, since there was no recording of that prior statement. Appellant was again given his Miranda rights. Holyfield then stated the substance of the March 13 statement that we have summarized in the Facts, ante. Appellant confirmed that Holyfield’s recapitulation of his statement was correct. Appellant made no corrections or alterations, and when asked twice by Holyfield, stated twice that everything was “correct” in the statement as Holyfield had rendered it.
The trial court ruled that appellant was not in custody when he made the statement on March 13, 2003, and that there was therefore no need to give the Miranda warning. The trial court did not specifically address the question whether the statement made on this date was coerced.
On appeal, appellant points to various aspects of his own testimony regarding the statement of March 13, 2003, which he claims amounted to a “variety of subtle and not-so-subtle coercive techniques to induce him to give a statement.”
Although the trial court did not expressly rule on the question of coercion, it is certainly implicit in the trial court’s ruling that the court did not find that the statement was coerced. Holyfield’s testimony unequivocally supports the conclusion that there was no coercion. As noted, appellant’s testimony is in conflict with Holyfield’s description of the events of March 13, 2003.
“This court must examine the uncontradicted facts surrounding the making of the statements to determine independently whether the prosecution met its burden and proved that the statements were voluntarily given without previous inducement, intimidation or threat. [Citations.] With respect to the conflicting testimony, the court must ‘accept that version of events which is most favorable to the People, to the extent that it is supported by the record.’ (People v. Randall [(1970)]1 Cal.3d [948,] 954.) The burden of proof which must be sustained by the prosecution on questions of voluntariness is proof beyond a reasonable doubt. [Citation.]” (People v. Hogan (1982) 31 Cal.3d 815, 835, disapproved on other grounds in People v. Cooper (1991) 53 Cal.3d 771, 836.)
Appellant’s claim that his statement was coerced is predicated on his own testimony, which, however, is in conflict with Holyfield’s. Although we are required to accept Holyfield’s version of events, we note that not even under appellant’s account can one conclude that the statement was coerced. “A distinction must be made for situations in which an exhortation to confess is unaccompanied by either threat or inducement, apart perhaps from an emphasis on the natural psychological relief arising from telling the truth. Exhortations of this type do not render a confession involuntary. [Citations.]” (1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 65, p. 755.) Appellant’s account of events certainly reflects exhortations on the part of the detectives for appellant to make a statement, but it does not show that he was threatened. The closest to a threat was the remark that if he didn’t make a statement, it would be “a problem,” but we cannot say that this amounts to a threat. The same can be said of the alleged statement made on the telephone on March 12, 2003, that if appellant did not come to the station, the police would “take matters in their own hands.” While these two remarks, assuming they were made, make it plain that the police would not be pleased if appellant did not cooperate, more than displeasure is required to elevate the statement to the level of a threat. A threat usually entails the statement that the police or the prosecutor will take some action that will be seriously adverse to the defendant or someone close to the defendant unless the defendant cooperates (see cases collected in 1 Witkin, Cal. Evidence, supra, Hearsay, § 66, pp. 756-758); no adverse action was threatened in this case, even if appellant’s version is accepted as true.
There is also the circumstance that the record of the interview of June 15, 2004, shows that appellant acknowledged that Holyfield’s summary of his statement of March 13, 2003, was correct. There is nothing in the record of the interview of June 15, 2004, which we have independently examined, that supports appellant’s current version of the events of March 13, 2003. If appellant’s current version were the correct one, one would think that on June 15, 2004, appellant would at least have registered a protest about the circumstances of his statement of March 13, 2003.
Our independent review of the record satisfies us that Holyfield’s testimony about the circumstances of the March 13, 2003, statement shows beyond a reasonable doubt that appellant’s statement was voluntary and that, even if we look to appellant’s current version, there is nothing to show that that statement was coerced.
As far as the interview of June 15, 2004, is concerned, appellant states that he “believed that the best way out of the situation was to confirm his earlier statement in the second interview. Though he did not wish to speak with the police at the time of his arrest in June 2004, [appellant] believed he had no choice but to do so.” Appellant’s appraisal of the situation in which he found himself on June 15, 2004, does not amount to coercion on the part of the police. We have reviewed the entirety of the statement of June 15, 2004, and agree with the trial court that it contains no threats or deceptive tactics by the police but rather shows that appellant spoke voluntarily and willingly.
In sum, we conclude that appellant’s statements of March 13, 2003, and June 15, 2004 were not coerced.
2. Testimony by an Alleged Expert on “False Confession” Was Properly Excluded
The defense offered the testimony of Dr. Richard Leo who would have testified on what psychological factors “might lead a defendant to make a false statement.” Dr. Leo would have testified on police tactics that lead to inaccurate and unreliable statements. But Dr. Leo would not have offered an opinion on whether appellant’s statements were false confessions. In any event, while appellant challenged Holyfield’s account of the circumstances under which his statement was made, he did not contest that he made the statement that Holyfield’s testimony related.
The trial court properly excluded Dr. Leo’s testimony. The issue, as appellant framed it, was whether his statements were voluntary. Dr. Leo would not have testified on this issue.
3. Appellant Was Not Prejudiced by the Loss and the Delayed Disclosure of Evidence
Appellant contends that he was denied due process by the losses of the recording of his March 13, 2003 interview and of the recording of a police interview of Roshanda Baker. He also claims that the belated disclosure during trial of a recording of a police interview with witness Theresa Taylor was a due process violation. Appellant raised these objections at trial by motions to dismiss; the trial court denied each of these motions.
“Law enforcement agencies must preserve evidence only if it possesses exculpatory value ‘apparent before [it] was destroyed,’ and not obtainable ‘by other reasonably available means.’ [Citations.] The state’s responsibility is further limited when the defendant challenges the failure to preserve evidence ‘of which no more can be said than that it could have been subjected to tests’ that might have helped the defense. [Citation.] In such a case, unless the defendant can show ‘bad faith’ by the police, failure to preserve ‘potentially useful evidence’ does not violate his due process rights.” (People v. DePriest (2007) 42 Cal.4th 1, 42-43.)
The salient aspect of the “loss” of the recording of appellant’s interview of March 13, 2003, is that no recording was ever made due to a malfunction of the machine. There was therefore nothing for the prosecution to lose.
There was a tape of the police interview with witness Baker conducted in 2003 but this tape was lost prior to trial. The exculpatory value of this tape, according to appellant, is that during this interview Baker did not relate appellant’s statement to her that if Jackson was shot in the back, Williams had done it. Appellant contends that this shows that Baker fabricated her later rendition of appellant’s statement once she learned that Jackson had been shot in the back.
Baker testified at trial that she did not tell the police during her interview in 2003 that appellant had told her that if Jackson was shot in the back, Williams was the shooter. Thus, the information that appellant claims shows that Baker was lying was presented to the jury. The loss of the recording therefore did no harm to appellant’s case. In fact, appellant’s counsel was aware of Baker’s first statement to the police prior to trial since the prosecution did turn over the notes of the 2003 police interview with Baker.
Appellant was provided during the trial with the recording of the police interview of Theresa Taylor. The alleged exculpatory value of this evidence was that Baker told Taylor that appellant had told Baker that McCullough, Mateo and Griffin shot Jackson.
Appellant claims the delay in receiving this information was prejudicial because if it had been known earlier, the defense would have investigated whether it was McCullough, Mateo and Griffin who shot Jackson. No matter what Taylor said, it is very implausible that the defense would not have, and did not, investigate whether it was McCullough, Mateo and Griffin who shot Jackson because it was Williams and Jackson with guns in hand that went looking for this trio.
The common denominator to all three claims of prejudice, however, is that there is no evidence that the loss of the recording and the delay in handing over the Taylor recording was the result of bad faith on the part of the police. Appellant can point to no such evidence but instead contends that the “convenient” loss of the tapes leads to the “only logical conclusion” that there was bad faith. Apart from the fact that only one tape was actually lost, we think that, unfortunately, it is entirely possible that a tape is misplaced through negligence and inattention. Evidence of bad faith requires just that, i.e., evidence. Suspicion of wrongdoing is not evidence.
It follows that, contrary to appellant’s contention, appellant was not entitled to jury instructions on the suppression, destruction and fabrication of evidence because there was no evidence that warranted the giving of this instruction.
4. It Was Not Error To Exclude Evidence That McCullough, Mateo and Griffin Were Arrested for Jackson’s Murder
During the trial, the prosecution requested that the court exclude evidence that on the night of the shooting, the police arrested McCullough, Mateo and Griffin on the strength of Taylor’s statement that they were in the area and shot at Jackson. The three men were released after a short investigation and were not charged. The trial court granted the request. Appellant contends that this ruling was erroneous since the evidence of these arrests “raised a reasonable doubt as to [appellant’s] guilt particularly in light of the delay between [appellant’s] initial interview and his arrest over a year later.”
We cannot agree with the premise of this argument, which is that the police’s opinion that there is probable cause to make an arrest means that the arrested person is in fact guilty or, at least, that it is more probable than not that the arrested person is guilty. This premise is fundamentally at odds with our legal system’s methodology in arriving at a verdict of guilty. The operative effect of the police’s conclusion that there is probable cause to make an arrest begins and ends with the making of the arrest. The determination of guilt or innocence is thereafter placed in the hands of a well-instructed jury and not the police.
Admission into evidence of the fact that McCullough, Mateo and Griffin were briefly under arrest after Jackson’s shooting would have introduced the wholly false quantity into the case that it could be inferred, from the police’s conclusion that there was probable cause to make the arrest, that the three men were in fact guilty. This would have been a wholly inappropriate inference.
5. The Trial Court Correctly Barred the Defense from Introducing Evidence About the Timing of the Disclosure of the Tape of the Taylor Interview
While cross-examining Detective McCormack, appellant sought to elicit evidence as to why it took two years to provide Taylor’s interview tape. The prosecution objected, contending that this was a discovery issue and was not relevant because the tape had been turned over to the defense. The trial court sustained the objection. Appellant contends that this was error, since the matter of delay “was pertinent and highly probative of the credibility and competence of the investigation and prosecution of the present case.” We do not think that misplacing a single tape, and finding it in time for the trial, reflects either on the credibility or the competence of the investigation and prosecution of this, or any, case.
Since appellant’s argument is without merit, we need not address his further contention that barring the cross-examination of McCormack on this topic was a denial of due process and the right of confrontation. There is no due process right, nor is there a right of cross-examination, about irrelevant topics.
6. Appellant’s Right to a Speedy Trial Was Not Violated
Appellant contends that the delay of 15 months between his initial interview and his arrest, and the filing of the criminal complaint, violated his Sixth Amendment right to a speedy trial.
Pre-complaint delay is resolved in terms of due process. (People v. Catlin (2001) 26 Cal.4th 81, 107.) The defendant must show he was prejudiced by the delay. (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911.) Appellant claims he was prejudiced because of the loss of the tape of his March 13, 2003 interview and the loss of the record of Baker’s 2003 police interview.
As noted, there was no recording of the March 13, 2003 interview and there was therefore nothing that the prosecution could lose; and Baker testified at trial and was fully examined on the issue appellant believes to be important, i.e., that she did not relate during that interview that appellant told her that Williams was the shooter if Jackson had been shot in the back. As far as the substance of the March 13, 2003 interview is concerned, appellant confirmed on June 15, 2004, that Holyfield’s rendition of the March 2003 statement was correct. The lack of a recording of the March 2003 statement and the loss of the record of Baker’s interview did not prejudice appellant. The delay of 15 months, which is not inordinate, did not violate appellant’s due process right to a speedy trial since he is unable to show any prejudice resulting from the delay.
7. Proof of Predicate Offenses by Other Gang Members Did Not Violate Appellant’s Right of Confrontation
“A ‘criminal street gang,’ as defined by the act, is any ongoing association of three or more persons that shares a common name or common identifying sign or symbol; has as one of its ‘primary activities’ the commission of specified criminal offenses; and engages through its members in a ‘pattern of criminal gang activity.’ ([Pen. Code, § 186.22,] subd. (f), italics added.) Under the act, ‘pattern of criminal gang activity’ means that gang members have, within a certain time frame, committed or attempted to commit ‘two or more’ of specified criminal offenses (so-called ‘predicate offenses’). (Pen. Code, § 186.22, subd. (e).)” (People v. Gardeley (1996) 14 Cal.4th 605, 610.)
The Street Terrorism Enforcement and Prevention Act (Pen. Code, § 186.20 et seq.).
The prosecution proved the predicate offenses by offering into evidence minute orders showing criminal convictions of two individuals, M.O. Mitchell and M.A. Vasquez, and by the testimony of Detective Holyfield that Mitchell and Vasquez were members of the Top Dollar Hustler gang.
Appellant contends that his right to confront witnesses was violated under Crawford v. Washington (2004) 541 U.S. 36 because appellant was “unable to cross[-]examine”: (1) the sources on which Holyfield relied in concluding that the two men were members of theTop Dollar Hustler gang, appellant’s suggestion being that he relied on inappropriate sources; and (2) the two men, Mitchell and Vasquez, regarding the factual bases of the pleas entered by them.
The principal flaw in appellant’s contention is that there was no objection at trial to either Holyfield’s testimony or the introduction into evidence of the court records showing the convictions of the predicate offenses. Thus, it is not that appellant was “unable” to cross-examine on these issues, the fact is that he did not, even though he could have, done so.
Had there been an objection to Holyfield’s testimony, he would have had to disclose the bases of his conclusion and could then have been examined, and cross-examined, on those bases. Absent an objection and the ensuing examination and cross-examination of Holyfield, one is left to speculate what those bases were. Absent a record showing that Holyfield relied on inadmissible sources, there is every reason in this case to follow the rule that the matter of a deprivation of constitutional rights is waived if there is no objection at trial. (People v. Williams (1997) 16 Cal.4th 153, 250.)
The claim that appellant was “unable” to examine the factual bases of the convictions of the predicate offenses fails for the same reason. The short answer is that appellant could have, but did not, object to the admission of court records showing these convictions.
8. The Instruction on Reasonable Doubt Is Not Flawed
Appellant contends that the instruction on reasonable doubt that was given is flawed because it limits the jury to evidence that was received at trial and “precludes” the jury “from considering the lack of physical evidence tying [appellant] to the Jackson shooting, such as gunshot residue, finger prints, etc.” Specifically, appellant points to the phrase “you must impartially compare and consider all the evidence that was received throughout the entire trial” (see fn. 4, ante) in contending that the instructions “precludes” the jury from weighing evidence that was not admitted.
At the time of trial, CALCRIM No. 220 stated: “The fact that a criminal charge has been filed against the defendant[s] is not evidence that the charge is true. You must not be biased against the defendant[s] just because (he/she/they) (has/have) been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime [and special allegation] beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt [unless I specifically tell you otherwise]. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. 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[s] guilty beyond a reasonable doubt, (he/she/they) (is/are) entitled to an acquittal and you must find (him/her/them) not guilty.”
We do not agree with appellant’s premise that this instruction “precludes” the jury from considering the lack of evidence. On the contrary, the instruction compels the jury to take into account evidence that is missing or lacking. If “the evidence that was received throughout the entire trial” does not prove that the defendant guilty beyond a reasonable doubt, the defendant must be acquitted. If some evidence is wanting or lacking, the jury must acquit. In other words, in order to acquit, the jury necessarily finds that there is a lack of evidence. Thus, under CALCRIM No. 220 the jury must consider whether there is a lack of evidence.
This includes matters on which evidence is received, but where the evidence is not deemed to be persuasive by the jury.
9. CALCRIM No. 226 Is Not Flawed
Appellant contends that CALCRIM No. 226 is flawed because one sentence therein tells the jury “(1) to rely on extra-judicial evidence and/or (2) to employ a standard less than proof beyond a reasonable doubt.” That sentence is: “In deciding whether testimony is true and accurate, use your common sense and experience.” Appellant contends that “common sense” can be “used as a substitute for objective (and substantial) evidence of guilt.”
CALCRIM No. 226 is a lengthy and helpful instruction. If CALCRIM No. 226 were limited to instructing the jury to use its common sense in deciding whether testimony was true, appellant’s argument might have a germ of validity. But CALCRIM No. 226 does far more than that. It guides the jury through, and to, the various aspects of testimony that experience (and common sense) indicates are helpful touchstones in evaluating testimony. In essence, it puts flesh on the bones of the instruction that the jury “must judge the credibility or believability of the witnesses.”
CALCRIM No. 226 provides:
Nor is it true, as a matter of logic, that standards in evaluating the truthfulness of testimony are synonymous with the standard for reasonable doubt. Whether testimony is true or not is a preliminary determination before the standard of reasonable doubt is applied. If the testimony is determined to be truthful, the jury goes on to consider whether that testimony contributes to the determination that the defendant is guilty beyond a reasonable doubt or whether it creates a reasonable doubt. Whether there is a reasonable doubt is determined under standards applicable to that concept. Guidelines in determining truthfulness are not germane to that standard.
10. There Was No Evidence To Support a Voluntary Manslaughter Instruction
Appellant contends that there was sufficient evidence “to establish that the shooting of Jackson resulted from the heat of passion caused by the threat posed to [appellant] and his friends by the earlier armed approach of McCullough, Mateo and Griffin.”
The circumstance that appellant fails to cite to the record to support this claim shows that there is no support in the evidence for this claim. While appellant appears to have been alarmed, even greatly alarmed, by the near-confrontation in the liquor store, there is nothing to suggest that he acted in the heat of passion at any time that day. He called Jackson, drove around and eventually met with Jackson and Williams. The idea to seek out, ambush and shoot McCullough, Mateo and Griffin came from Jackson, not appellant. The only hint we have of appellant’s frame of mind was his earlier request, addressed to Jackson, for a gun. It is as likely that he wanted the gun for self-defense as that he wanted to attack the trio; even if the reason for the request is the latter, there is no suggestion that appellant wanted to carry out the attack “in the heat of passion.” Appellant’s meek acceptance of the role of an accessory in the plan devised by Jackson only confirms that there was no “heat of passion.”
In short, the notion that appellant was driven by passion and anger has no support in the record. It was therefore correct to decline to give the instruction on voluntary manslaughter.
11. Appellant Was Not Prejudiced by the Prosecutor’s Arguments
The prosecutor made the following closing argument: “Well, ladies and gentlemen, we can’t have that in our neighborhoods. We can’t have running gun battles in our neighborhoods, in our streets because when you hear about the three-year-old who got killed in the front yard by a stray bullet -- [¶] MR. BREWER [defense counsel]: Your Honor -- [¶] MR. JESIC [district attorney]: -- That’s how this happens. [¶] MR. BREWER: Your Honor, this argument as [sic] appealing to the passions of the jurors. [¶] THE COURT: All right. Overruled.”
The context of this argument was that the district attorney, after noting that Williams shot Jackson by accident, went on to argue that just because the trio that Williams and Jackson set out to shoot were themselves gang members did not mean that Williams and Jackson were free to gun them down. The statement quoted above was made after this argument.
Appellant contends that the quoted statement was misconduct because it sought to persuade the jury not to decide the case based on the evidence but based on “their fear and anxiety over random criminal acts in their neighborhoods.”
There is nothing inappropriate in the statement that there cannot be running gun battles in our neighborhoods; it is a truism. It is also true that unfortunately children are from time to time victims of gang-related shootings. While referring to a three year old struck in his front yard inappropriately suggested that perhaps appellant was guilty of such an act, the remark was sufficiently abstract that the chance of interpreting it in this way was rather remote. The trial court acted within its discretion in overruling appellant’s objection.
Appellant contends that the prosecutor improperly demeaned Mr. Brewer, his defense counsel, by stating that Mr. Brewer had a tendency to leave out important aspects of statements made by appellant and Baker that were being read to the jury. We have reviewed the prosecutor’s statements about Mr. Brewer and do not find them to be demeaning. They are certainly critical of the fact that Mr. Brewer was selective in his presentation of those statements but the tenor of the comments is civil.
In his closing argument, the district attorney stated: “He [Mr. Brewer] wants you to believe -- and this part, ladies and gentlemen, I can’t even believe that Mr. Brewer stood in front of you and said, I’ll tell you what Mr. Steele meant, this is what he really meant. Well, who’s testifying in this case? Mr. Brewer?” Appellant contends that this was error under Griffin v. California (1965) 380 U.S. 609 (Griffin) in that it “blatantly called attention to [appellant’s] failure to testify.”
According to respondent, the foregoing statement was in response to defense counsel’s argument that “appellant really did not mean it when he participated in the shooting.” If this is correct, the statement was a comment on appellant’s intent or rather lack of intent, and therefore is not a comment on his failure to testify. Appellant, on the other hand, contends that the district attorney was responding to counsel’s attempt to explain “what [appellant] meant in his police interview.”
It is of course difficult at this point to conclude with certainty what the district attorney was actually referring to, although respondent’s theory is plausible. The context in which the statement was made suggests that the district attorney was critical of Mr. Brewer’s presentation of the case. The statement is preceded by the comment that Mr. Brewer had taken some of Roshanda Baker’s testimony out of context and it is followed by the reminder to the jury that argument is not evidence and that Mr. Brewer had not presented evidence to support his argument. A fair interpretation of the district attorney’s statement is that it was critical of Mr. Brewer’s attempts to supply by way of argument alleged facts that should have been presented as evidence. In other words, the focus was on what Mr. Brewer was (and was not) doing, and not on appellant. We therefore reject appellant’s contention that the statement constituted Griffin error.
12. The Trial Court Did Not Commit Misconduct
Appellant contends that the trial court “inappropriately chastised defense counsel in a harsh manner before the jury on several occasions” and that this constituted judicial misconduct.
The first occasion arose when Mr. Brewer was examining a witness. As he was asking a question, the district attorney interrupted and requested a sidebar; Mr. Brewer continued with his question.
At the sidebar, the court admonished Mr. Brewer about continuing questioning after a sidebar had been requested; the court warned both counsel about talking after they had been told not to talk. Still outside the presence of the jury, Mr. Brewer registered his strong objection about “[e]very time something happens, the court yells at me in front of the jury.” The court responded that if Mr. Brewer followed the court’s direction, “it won’t be necessary to raise my voice. I only have to raise it because you won’t do what I say the first time.” Having said this, the trial court turned to consider and discuss the reason that the sidebar was requested.
Even if this was chastisement, as appellant contends, it happened outside the hearing of the jury. But we do not agree that this exchange reflected inappropriate conduct on the court’s part. On the contrary, the court acted to preserve courtroom decorum; the court was correct in noting that once the sidebar had been requested, counsel should have suspended questioning at least until the court ruled on the request.
The second instance about which appellant complains arose during the questioning of Detective Holyfield by Mr. Brewer. The question was whether Holyfield had a report about appellant’s March 13, 2003 statement. Mr. Brewer directed Holyfield to answer the question yes or no. The court interposed that counsel could not require the witness to answer yes or no, and had to allow the witness to answer any way he wanted to. Mr. Brewer objected “to the court’s comments and the tone of its voice towards me.” There was a brief exchange during which the court reiterated that the witness was free to answer any way he chose to, and Mr. Brewer continued to object to the court’s comments.
The person who acted inappropriately in this exchange was Mr. Brewer and not the trial court. Once the court had ruled -- either correctly or incorrectly -- that the witness could not be instructed to answer the question yes or no, Mr. Brewer had only two options. He could proceed with the questioning and follow the court’s ruling or he could state his reason(s) why Holyfield could be required to answer yes or no, preferably at the sidebar. After Mr. Brewer had stated his reasons, the court presumably would have adhered to its ruling; and that would have been the end of the matter. Instead, Mr. Brewer chose to reiterate his objection to the court’s “comments” and to engage the trial court in a running, albeit short and sharp argument. The court’s ruling was not a “comment” and Mr. Brewer acted inappropriately in arguing with the court after the court’s initial ruling.
In both instances cited by appellant the trial court did nothing more or less than it was required to do to ensure a fair and orderly trial.
13. There Was Sufficient Evidence of Corpus Delicti
Appellant contends that, apart from appellant’s own statement, there was no independent evidence that the crime of attempted murder was committed, i.e., appellant contends that the evidence is insufficient to establish the corpus delicti.
“The corpus delicti, the body or elements of the crime, must be established by the prosecution independently of and without considering the extrajudicial statements, confessions or admissions of the defendant. [Citations.] The elements of the corpus delicti -- (1) the injury or loss or harm, and (2) the criminal agency that has caused that injury, loss or harm -- need only be proven by a reasonable probability or, in other words, by slight or prima facie proof. [Citations.] The corpus delicti need not be proven by direct evidence; it may be established by circumstantial evidence and the inferences that may reasonably be drawn therefrom. [Citations.] The prosecution need not establish the accused as the perpetrator of the offense, for in California proof that the defendant was the person engaged in the criminal conduct is not an element of the corpus delicti. [Citations.]” (Jones v. Superior Court (1979) 96 Cal.App.3d 390, 393.)
We agree with respondent that there is substantial evidence that a criminal agency caused Jackson’s death. Baker saw appellant, Jackson and Williams together on her front porch, she heard multiple gunshots shortly thereafter, and saw appellant and Williams running; multiple shell casings were found at the scene, and Jackson’s lethal wound was caused by a gun found by the police that, according to the account of a witness, was hidden by Williams.
14. The Pitchess Motion
Appellant requested that we review the sealed records of the hearing relating to the motion brought under Pitchess v. Superior Court (1974) 11 Cal.3d 531.
We ordered the record of the hearing to be prepared and to be sent to us under seal. This was done; the record identifies with sufficient specificity the materials on which the trial court relied. (People v. Mooc (2001) 26 Cal.4th 1216, 1231.) We have reviewed the transcript of the hearing which concluded with the trial court’s order denying the disclosure of the personnel records of Detectives Holyfield and McCormack. We find that the trial court’s order was correct and well within the ambit of its discretion. (People v. Gill (1997) 60 Cal.App.4th 743, 749.)
15. The Court Did Not Err in Imposing the Court Security Fee of $20
The crimes were committed on February 13, 2003. Effective August 17, 2003, Penal Code section 1465.8, subdivision (a)(1) requires the imposition of a $20 fee on every conviction for a criminal offense in order to “ensure and maintain adequate funding for court security.” Appellant was convicted on June 5, 2006, and sentenced on August 22, 2006.
In relevant part, Penal Code section 1465.8, subdivision (a)(1) provides: “To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, except parking offenses.”
Appellant contends that Penal Code section 1465.8 violates the ex post facto clause and that this provision cannot be applied retroactively. Appellant’s contentions have been rejected by the court in People v. Alford (2007) 42 Cal.4th 749, 754-755.
In any event, the fee is imposed on a conviction, which in this case took place after the effective date of section 1465.8.
16. The Imposition of the Upper Term Is Affirmed
Appellant contends that the imposition of the upper term of nine years for attempted murder violates Cunningham v. California (2007) 127 S.Ct. 856 (Cunningham).
The trial court imposed the upper term because it found that this was “not just a garden variety attempted murder” but involved planning and the obtaining of weapons.
There are two reasons why appellant’s contention is without merit.
First, we think that it is unquestionable that the jury would have found true that the crime involved planning. (People v. Sandoval (2007) 41 Cal.4th 825, 839.) Appellant’s statement of March 13, 2003, which he affirmed on June 15, 2004, clearly reflects advance planning and there really is no evidence that contradicts this statement. In addition, the jury found appellant guilty of conspiracy, in addition to murder and attempted murder. This confirms that the evidence that there was planning was in fact overwhelming. Thus, if there was error, it as harmless.
Second, the trial court effectively followed the rules that were enacted in order to comply with Cunningham. Under the newly enacted rule 4.421(a)(8) of the California Rules of Court, a factor in aggravation is whether the manner in which the crime was carried out indicates planning, sophistication or professionalism. Newly enacted rule 4.420(b) provides that “[i]n exercising his or her discretion in selecting one of the three authorized prison terms referred to in [Penal Code] section 1170(b), the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. The relevant circumstances may be obtained from the case record, the probation officer’s report, other reports and statements properly received, statements in aggravation or mitigation, and any further evidence introduced at the sentencing hearing.” This is in fact what the trial court did in this case. Thus, even if we did not conclude that the error was harmless, no purpose would be served to remand the case since the trial court would simply repeat what it had done and said during appellant’s sentencing on August 22, 2006.
The rules enacted in response to Cunningham and the ensuing amendment of Penal Code section 1170 et seq. became effective May 23, 2007.
DISPOSITION
The judgment is affirmed.
We concur: COOPER, P. J., RUBIN, J.
“You alone, must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. The testimony of each witness must be judged by the same standard. You must set aside any bias or prejudice you may have, including any based on the witness’s disability, gender, race, religion, ethnicity, sexual orientation, gender identity, age, national origin, [or] socioeconomic status[, or ________ ]. You may believe all, part, or none of any witness’s testimony. Consider the testimony of each witness and decide how much of it you believe.
“In evaluating a witness’s testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are:
“• How well could the witness see, hear, or otherwise perceive the things about which the witness testified?
“• How well was the witness able to remember and describe what happened?
“• What was the witness’s behavior while testifying?
“• Did the witness understand the questions and answer them directly?
“• Was the witness’s testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided?
“• What was the witness’s attitude about the case or about testifying?
“• Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony?
“• How reasonable is the testimony when you consider all the other evidence in the case?
“• [Did other evidence prove or disprove any fact about which the witness testified?]
“• [Did the witness admit to being untruthful?]
“• [What is the witness’s character for truthfulness?]
“• [Has the witness been convicted of a felony?]
“• [Has the witness engaged in [other] conduct that reflects on his or her believability?]
“• [Was the witness promised immunity or leniency in exchange for his or her testimony?]
“Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently.
“[If the evidence establishes that a witness’s character for truthfulness has not been discussed among the people who know him or her, you may conclude from the lack of discussion that the witness’s character for truthfulness is good.]
“[If you do not believe a witness’s testimony that he or she no longer remembers something, that testimony is inconsistent with the witness’s earlier statement on that subject.]
“[If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.]”