Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. MA030446. Carol Koppel, Judge.
Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dana R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels, Stephanie C. Brenan and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Zamaad G. Zomalt appeals his conviction for one count of first degree murder, three counts of attempted premeditated murder, one count of shooting at an occupied building, and one count of dissuading a witness from reporting a crime. He claims the court should have granted his motion to transfer the case from Lancaster to another judicial district. He asserts the prosecutor committed prejudicial misconduct by vouching for two witnesses and eliciting testimony that appellant had been jailed on a previous occasion. Appellant claims the court erred in permitting evidence that the murder victim had positive personal qualities and was intolerant of gang members and terrorists, in permitting a witness to testify even though the prosecutor failed to give the defense a report of the proposed testimony, and in instructing on adoptive admissions. He also asserts sentencing errors. We find no prejudicial error, and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Schooners is a restaurant, bar and nightclub in Lancaster. On the evening of April 20, 2002, there were 600 to 800 patrons at the club. Around midnight, appellant and Brian Lewis were denied admission to the club because of their attire. They stood outside the club on the patio area, arguing with club manager Marshall Garrison. According to Lewis, a racial epithet was directed at appellant during the argument. Appellant and Lewis walked away into the parking lot, continuing to yell and swear.
There was conflicting testimony about whether one or two other men were with appellant and Lewis.
They sat in a truck talking about the incident. Appellant told Lewis he wanted to get his rifle and shoot up the club. They left the Schooners parking lot and drove to Tony Munnassar’s house to retrieve the rifle. They returned to Schooners and drove around the parking lot to find a location where they would be hidden but would have a good view of the club. Appellant loaded the rifle and exited the truck; Lewis waited in the truck. Appellant fired toward the front of the club. He shot and killed Marshall Garrison, and wounded two other Schooners employees and one customer.
Munnassar’s first name is actually Faiz, but he was referred to as Tony throughout the trial.
Appellant and Lewis drove to appellant’s house. When appellant’s wife, Elisa Carpio, came home, he told her he had shot some people. He threatened to kill her and his children if she was not “down with him.” The following day, appellant had Carpio drive him to his cousin’s house. The cousin took electric clippers and cut appellant’s hair short. Appellant had Carpio take him to Munnassar’s shop, then to Munnassar’s house. Appellant instructed his wife to get rid of the clothes he had been wearing the night before, and said goodbye to her and the children. It was more than a year before she saw appellant again.
Carpio confided in her mother and her sister. At her sister’s urging, she spoke with police, and gave them the names of appellant, Lewis, and Munnassar. Eventually, the three men were arrested.
Appellant and Munnassar were charged by information with one count of murder (Pen. Code, § 187, subd. (a)), three counts of attempted murder (§§ 187, subd. (a), 664), and one count of shooting at an occupied building (§ 246). Appellant was charged with dissuading a witness from reporting a crime. (§ 136.1, subd. (b)(1).) Personal use of a firearm and personal infliction of great bodily injury were alleged against Munnassar, and principal armed with a firearm was alleged as to both defendants. Lewis reached a plea agreement to avoid being charged with murder. In exchange for his testimony, he would plead to being an accessory, be sentenced to time served, and be placed on five years’ probation.
All statutory references are to the Penal Code unless otherwise indicated.
Appellant and Munnassar were tried jointly in February and March 2006. The case was tried in the central district as a long cause matter. The prosecution theory was that Munnassar was the actual shooter, and appellant was an aider and abettor. The jury acquitted Munnassar, and was unable to reach a verdict as to appellant.
Appellant was retried, this time in Lancaster, where the crimes occurred. He was convicted as charged, and sentenced to an aggregate term of 34 years 8 months to life. This is a timely appeal from the judgment of conviction.
DISCUSSION
I
Appellant claims the trial court erred in refusing to transfer his case from Lancaster to a different judicial district for retrial, given the “vast amount” of pretrial publicity about the crime and the first trial. Appellant sought the transfer under Los Angeles Superior Court Rules, rule 2.0(e), which permits the transfer of a criminal action from one district to another “for the convenience of witnesses or to promote the ends of justice.”
The same considerations apply to an intracounty transfer as apply to a motion for change of venue. (People v. Jenkins (2000) 22 Cal.4th 900, 945.) Section 1033, subdivision (a) requires a trial court to grant a motion for change of venue “when it appears that there is a reasonable likelihood that a fair and impartial trial cannot be had in the county.” “In ruling on such a motion, as to which defendant bears the burden of proof, the trial court considers as factors the gravity and nature of the crime, the extent and nature of the publicity, the size and nature of the community, the status of the victim, and the status of the accused.” (People v. Proctor (1992) 4 Cal.4th 499, 523.) On appeal, the defendant must show that at the time of the motion it was reasonably likely that a fair trial could not be had, and that the error was prejudicial. (People v. Jenkins, supra, 22 Cal.4th at p. 943.) We undertake a de novo review of the factors bearing on the motion. (Ibid.)
Defense counsel argued that the crimes charged—murder, attempted murder, shooting into a nightclub occupied by 600 persons, and attempting to dissuade a victim/witness—were especially grave, brutal, or revolting. We agree that the crimes were serious, but as our Supreme Court has explained, while serious offenses predictably attract the attention of the media, “the same could be said of most multiple or capital murders. This factor is not dispositive.” (People v. Pride (1992) 3 Cal.4th 195, 224; see also People v. Dennis (1998) 17 Cal.4th 468, 523 [killing of pregnant wife and fetus with machete-like weapon not crime of such gravity as to require change of venue].)
As to pretrial publicity, appellant claimed extensive and pervasive media coverage, including 40 newspaper articles and letters to the editor between April 20, 2002, when the crime was committed, and May 23, 2006, the date of the venue motion. The victim’s mother was interviewed by a local television station and by newspapers. On the day jury selection began, the headline in the local newspaper related to the case. Except for this last claim about the headline, appellant did not indicate when the publicity about the crime or the trial occurred. A lapse of time between the publicity and the motion can weigh heavily against a change of venue. (People v. Jenkins, supra, 22 Cal.4th at p. 944.) Potential prejudice can be attenuated by the passage of time. (People v. Panah (2005) 35 Cal.4th 395, 448.)
“Moreover, the fact that prospective jurors may have been exposed to pretrial publicity about the case does not necessarily require a change of venue. [Citation.] ‘“It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.”’” (Panah, supra, 35 Cal.4th at p. 448.) In his motion for transfer, appellant asserted that of the 83 completed juror questionnaires, 53 prospective jurors claimed to have knowledge of the case. Of the 53, 13 were removed for cause by stipulation of the parties based on their questionnaire responses. Appellant did not use all his peremptory challenges when he accepted the jury, supporting the inference that he believed the remaining jurors could be fair, despite their exposure to publicity about the case. (Ibid.) Appellant did not establish prejudice from the pretrial publicity.
The crime and the second trial were located in Lancaster, in northeastern Los Angeles County. Appellant argued that the community was small or provincial, and that the population of approximately 130,000 was unsophisticated. This is nothing but supposition. More importantly, the record does not support the conclusion that the prospective jurors were drawn only from Lancaster. In a discussion about the juror questionnaires, the trial court told the prosecutor that prospective jurors were not necessarily from the Lancaster/Palmdale area. “Some of them are not from there, they come up from Santa Clarita. Some of them; because we have a large panel. They can be coming from downtown L.A.”
Appellant argued that at least one of the victims was a prominent member of the community, while appellant was not. Appellant did not live in the local community. The murder victim, Marshall Garrison, was one of the owners and the general manager of Schooners, which was a popular club in the community. Garrison was active in the community, participating in community events, but there was no showing that the prospective jurors had any familiarity with Garrison or his activities in the community.
Considered individually or together, these factors did not establish a reasonable likelihood that a fair and impartial trial could not be had in Lancaster. The trial court did not err in denying the motion for transfer.
II
Appellant claims the prosecutor committed prejudicial error by vouching for two key witnesses. “A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of her office behind a witness by offering the impression that she has taken steps to assure a witness’s truthfulness at trial. [Citation.] However, so long as a prosecutor’s assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the ‘facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,’ her comments cannot be characterized as improper vouching.” (People v. Frye (1998) 18 Cal.4th 894, 971.) With these principles in mind, we examine appellant’s claims.
Appellant claims the prosecutor improperly vouched for the credibility of accomplice Brian Lewis “by repeatedly calling attention to his ‘deal,’ and prodding Lewis to tell the ‘truth’ as the prosecutor saw it.” We disagree with this characterization.
At the beginning of direct examination, Lewis admitted that he was involved in the shooting, that he lied to police about it, and that he lied under oath at an earlier trial. The prosecutor then asked, “You got a deal, a benefit, where you were told if you told the truth at trial, you would not be prosecuted for murder, you would get accessory after the fact, and a judge would give you up to three years but as little as probation; correct?” Lewis agreed that he had taken that deal.
The prosecutor asked Lewis if he recalled the conversation they had before he was interviewed in preparation for the second trial. Lewis replied, “Just basically tell the truth and that my deal would not be tooken [sic] if I told the truth.” Lewis acknowledged he had heard those words from a different district attorney before the first trial, and he had lied after promising he would tell the truth. This occurred after he had pled guilty to accessory and gotten his deal of five years probation with time served.
The prosecutor asked, “What was it that was said to you to get you to admit committing perjury at that earlier trial?” Lewis answered, “Basically that—I mean I need to tell the truth or it’s going to all be on me in the long run.” According to Lewis, he was asked if he was religious, and it was suggested that “The man himself, the man upstairs” would know if he had lied in a court of law.
The prosecutor proceeded to examine Lewis regarding the terms of the plea agreement:
“Q Is it your understanding that you were told that if you were truthful in this trial in front of this jury as to everything that you testified to that you would keep your original deal and not be prosecuted for murder?”
“A Yes.
“Q Were you told you’d be cross-examined vigorously by the defense attorney, Mr. Gagliardini, and myself and if you were caught in a lie and this judge thought you were lying or I thought you were lying, both transcripts would go to the judge that sentenced you and that judge could decide to withdraw your deal?
“A Yes.
“Q What is your understanding about what your responsibility is to keep your deal?
“A To tell the truth.
“Q About everything?
“A Everything.
“Q Were you told that if you tell a lie to assist the defendant it would blow your deal?
“A Yes.
“Q Were you told if you told a lie to assist the prosecution in any way it would blow your deal?
“A Yes.
“Q So as you sit here about to testify to the facts, you will be testifying as to some areas that you lied under oath; correct?
“A Yes.
“Q And that would be admitting perjury; correct?
“A Yes.
“Q You were given what’s called—did you hear the word ‘use immunity’?
“A Yes, I did.
“Q Okay. In front of this judge, were you given the immunity, meaning if you admit telling a lie and you’re honest in this trial under oath, you would not be prosecuted for that perjury?
“A Yes.
“Q Did that agreement make you feel more comfortable admitting the lies you told at the first trial?
“A Yes, it did.
“Q Let’s be honest. You don’t want to get in trouble; correct?
“A Correct.
“Q You’ve been—in the past you didn’t want to get in trouble; correct?
“A Yes.
“Q In the past you lied to the police and lied under oath thinking it would keep you out of trouble.
“A Yes.
“Q What is the way you stay out of further trouble at this point?
“A To tell the truth.”
The prosecutor continued to question Lewis about his understanding of his obligation to tell the truth and his opportunity to review his former testimony. Lewis acknowledged that after being examined about his obligation to tell the truth that morning out of the presence of the jury, he had thought of additional information he had not been truthful about in his interviews with the prosecutor or with his own attorney. This other information made him more involved in the murder. The prosecutor again reminded Lewis “that whatever the truth is, whether it makes you as a—I think I’ve told you before whether you were the person that pulled trigger or hired a hit man from Switzerland, whatever you did, you have to admit 100 percent of what your involvement was.” Lewis acknowledged that obligation. The prosecutor then began questioning Lewis about his relationship with appellant and the events surrounding the crime.
This was not vouching. The prosecutor had an obligation to disclose to the jury any inducements made to a prosecution witness to testify. The quoted examination of Lewis was designed to meet that obligation. A portion of the plea agreement was that Lewis would have use immunity for his untrue testimony during the first trial. The prosecutor appropriately explored Lewis’s understanding that if he testified truthfully at this trial, he would not face perjury charges for testimony at the first trial which he admitted was untrue. But the more significant portion of the plea agreement was that if he did not testify truthfully, his plea to accessory after the fact could be withdrawn, and he would be subject to murder charges. Central to this portion of the bargain was that if the prosecutor or the trial judge thought Lewis was not testifying truthfully, the transcript would be brought to the judge who took the plea, and that judge would decide whether the plea should be withdrawn. The prosecutor’s questions elucidated this portion of the bargain.
The prosecutor played a videotape of Lewis’s January 13, 2005 police interview. Lewis admitted he had lied in several respects during that interview, and the prosecutor asked him to indicate what portions were true and what portions were not. This detailed questioning about when Lewis had told the truth and when he had not was crucial to the jury’s determination of his credibility, as well as to the continuing validity of his plea agreement. At no point did the prosecutor suggest that he had personal knowledge beyond the terms of the bargain. The prosecutor’s questioning of Lewis, and his references to Lewis in closing, were based on the facts of the record and the reasonable inferences which could be drawn and did not constitute improper vouching. (People v. Williams (1997) 16 Cal.4th 153, 257.)
Appellant also claims the prosecutor improperly vouched for the credibility of appellant’s wife, Elisa Carpio, by offering her immunity in front of the jury. Carpio testified on direct examination that when she arrived at her house at about 2:00 a.m. on the morning after the shooting, appellant and Brian Lewis were there. When she got to her bedroom, she saw it had been ransacked, and she asked the two men what had happened. Appellant told her he had shot some people and “if I wasn’t down with him that he would kill me and the girls, and we would be next.”
During direct examination of Carpio, the prosecutor played a tape of her interview with police two years after the shooting. In the interview, Carpio told the investigator that before the shooting, she and appellant already had problems with their marriage, “like abusive and stuff throughout the whole marriage. The last year I said, I would say was not good.” Carpio denied having any contact with appellant since he left after the shooting, and denied he had any guns in the house.
After the tape was played, Carpio acknowledged that she gave an informal police report shortly after the incident, incriminating appellant in the murder. The prosecutor reminded her that it is illegal to give false information to the police, and “if you lied on that night and made it all up, made up the whole thing about him coming home and confessing to a murder to you—you started this whole thing rolling—if that was a lie, you could be in trouble; right?” Carpio insisted it was not a lie.
The prosecutor then asked: “Do you want immunity? I’ll tell you right now as the prosecutor, if you made all that up for whatever reason, a dumb lovers’ fight, and you’re afraid of getting in trouble yourself, I’ll pursue and we’ll give you immunity so you can admit it was all a lie—we can all go home—that it never happened. You want that?” She declined the offer of immunity, and confirmed that the events had happened.
The prosecutor asked Carpio if she had been as helpful to the detectives who interviewed her as she could have been in helping to track appellant down. She said she was not, and that she had not been completely honest with them. The prosecutor then said, “Have I told you as prosecutor you have to be honest about everything, even that you didn’t tell the police everything?” Carpio agreed, and also agreed that she had been told she had to be honest on the stand, “No matter what.”
Carpio then admitted she did not tell the truth when she told the police she had not heard from appellant, since she had heard from him, and knew a few places he had been staying. She admitted that during the 2004 interview, she had been protecting appellant, and did not offer to help police track him down. She said she “didn’t want to get involved in all this again. Just never goes away. I just didn’t want to deal with it, just wanted to just forget about it.” The prosecutor explained, “An easy way to make it go away is just tell the jury right now you made it all up—you were having an affair with Tony Munassar [sic] at the time—and you somehow figured out, ‘Hey, a murder happened. I’ll frame him for a murder that just happened,’ and tell us that that’s what it was. Is that the truth?” Carpio insisted it was not. She then admitted she had told the police that appellant did not have guns in their house although she knew that he did.
The prosecutor asked Carpio whether she tried to be honest when she testified at the first trial. She said she did her best to answer honestly, and that she did not know of any lies she told at that time. She promised she would admit if any of her former testimony was a lie. He then asked, “Is there anything that you’ve said—because you understand if you lie, it’s called ‘perjury’? You can be prosecuted, right?” The prosecutor warned that if she were caught in any lie, she could be prosecuted and put in prison for three years. Carpio indicated she understood.
Then for the second time, the prosecutor discussed immunity: “I offered you immunity for the past. If there are any lies you told in the last hearing, I’ll offer you immunity, and you can tell us that it was a lie. You have to do it now before Mr. Gagliardini [defense counsel] talks to you. Do you request any immunity?” Carpio said no, and the prosecutor reminded her that she had to tell the truth. Questioning then continued.
Appellant claims the prosecutor’s offer of immunity, in the presence of the jury, constituted improper vouching for Carpio’s credibility. The prosecutor also was concerned about that. During a break in Carpio’s testimony, he raised the issue of the propriety of the questions. He indicated he would research the issue, and perhaps be willing to stipulate that a portion of Carpio’s testimony be stricken from the record. Defense counsel researched the issue and moved to strike the testimony regarding immunity. After further research, counsel stipulated to an admonition for the court to read to the jury. The court thus instructed the jury as follows:
“By stipulation of the parties, the parties agree that during the testimony of Elisa Carpio, the prosecution discussed a grant of immunity. This discussion, including the questions and answers, is now ordered stricken by the court. This means that you may not discuss or consider this testimony in any way with respect to the issue of immunity of Ms. Elisa Carpio.”
In People v. Dickey (2005) 35 Cal.4th 884, 914, the Supreme Court rejected a claim of improper vouching because it was followed by a strong admonition to the jury: “We need not decide whether the prosecutor’s comment amounted to improper vouching because defense counsel objected to the comment, the objection was sustained, and the court admonished the jury: ‘That’s an improper argument, ladies and gentlemen, [the prosecutor] has stated his personal opinion. You are to ignore that statement please.’ We presume the jury heeded the admonition and that any error was cured.”
In this case, as in Dickey, we need not decide whether there was improper vouching as to Carpio. The admonition, stipulated to by counsel, informed the jury in the strongest terms to ignore the colloquy about immunity as to her. We presume the jury heeded this focused admonition, and that any harm from the prosecutor’s statements was cured.
III
Appellant next claims the prosecutor committed misconduct by eliciting information from Steve Robbins that appellant previously had been in jail. Robbins had worked with appellant, and sometimes went hunting with him. On redirect examination, the prosecutor asked Robbins whether something occurred, “a time period he was gone for 30 days,” that caused Robbins to stop socializing with appellant. When Robbins asked him to repeat the question, the prosecutor asked:
“Q Do you remember describing a personality change in Mr. Zomalt?
“A Yes.
“Q So some event occurred that after which you decided to stop being with him; correct?
“A Yes.
“Q Okay. And you—how do you describe his personality change? What was different about him after that event?
“A He was more quiet.
“Q Okay.
“A To himself.
“Q What else was he—what else was he more?
“A Meaning as what?
“Q Other than quiet, what else was he more? I know he’s sitting there, but what else was he more? What did you see?
“A I saw Gary as angry. When he came out of jail, he was just different.
“Q Okay. You saw he had greater anger in him at one point?
“A Yes.
“Q And because of that greater anger, is that—that caused you to stop—decided it’s better not to hang out with him socially.”
“A Yeah. Towards everyone, yes.”
On further recross-examination, defense counsel asked Robbins about appellant’s change in demeanor; specifically, he asked if appellant started to be angry with everyone. Robbins explained that appellant was not angry, just changed. He was “just to himself. Quiet.”
Defense counsel then asked:
“Q So he had an experience in jail for something and got out?
“A Yes.
“Q And after getting out, he was more subdued?
“A Yes.
“Q More quiet?
“A Yes.
“Q Okay. Do you know what he was in jail for?
“A No, I don’t.
“Q Well, how long was he in jail?
“A I couldn’t tell all the days. It was probably a couple months, probably, I think it was.
“Q And when Mr. Ipsen [the prosecutor] interviewed you, did he ever tell you you weren’t supposed to mention that Mr. Zomalt was ever in jail in front of the jury?
“A No.
“Q That’s what I thought. Nothing further.”
The prosecutor objected, and the court took the objection under advisement. Then defense counsel asked the court to admonish the jury not to consider anything regarding appellant’s prior incarceration as evidence. The court immediately instructed the jury “not to consider it.” The prosecutor then asked to approach, noting that it was defense counsel who had delved into the subject, not him. The court replied, “Yes, he did, but the jury will ignore it in any event.”
The prosecutor requested a further curative instruction at the conclusion of trial. He explained he had been surprised by Mr. Robbins’ statement, and that he understood “why counsel asked what the reason was, and just so the court knows, it was over a traffic matter. That didn’t come out. I don’t think it’s fair for them to speculate that there’s something more nefarious about Mr. Zomalt when there really is not.” The court offered to inform the jury that a traffic incident was involved, but the prosecutor and defense counsel declined that instruction. The court thus instructed as follows: “During the examination of witness Steve Robbins, Mr. Robbins volunteered a belief that the defendant had been to jail. During cross-examination the defense asked questions about the nature of the conviction. You are ordered to disregard for all purposes this testimony and related questions. You are not to speculate as to whether or not this Mr. Zomalt has served any time in jail.”
The record does not support appellant’s suggestion that the prosecutor deliberately elicited testimony that appellant had been jailed. The prosecutor may not have warned the witness to avoid mention of the subject, but the questions asked did not call for any reference to it. More importantly, the court gave an immediate admonition for the jury to ignore anything regarding appellant’s prior incarceration, and gave a more formal instruction to the same effect at the conclusion of trial. Robbins’ initial reference to jail in response to the prosecutor’s question was brief and completely cured by the prompt admonition and later curative instruction. (See People v. Valdez (2004) 32 Cal.4th 73, 123 [witness’s fleeting reference to jail was not so outrageous or inherently prejudicial that it could not be cured by admonition].)
IV
Appellant claims the court “erred and fomented passion and prejudice among the jurors by admitting irrelevant evidence of decedent Garrison’s purported sterling character.” This evidence came in through the testimony of Garrison’s wife, Therese Garrison Garcia. Over appellant’s objection, Ms. Garcia testified that she and the victim had two young children, that he took care of their son during the day, and participated in many activities. He coached their daughter’s sports activities, was on the board of community organizations, and helped with fund-raising events. Garrison was proud of having served in the Marines, and was strong, confident and outgoing. While not directly probative of any material issue at trial, this background information about the victim was brief and not likely to result in prejudice.
The prosecutor questioned Ms. Garcia about Garrison’s height and weight, and displayed a nearly life-size cut-out of Garrison. Garrison’s physical appearance was relevant to assist the jury indentifying him in the surveillance videotape. Comparison of Garrison’s size to appellant’s also was relevant to explain why appellant chose to shoot at Garrison from a distance rather than engage in a direct physical assault. The court did not abuse its discretion in admitting this evidence.
The crux of appellant’s claim arises from the questions about Garrison’s temper and his lack of tolerance for gang activity and terrorists. Ms. Garcia testified that he generally controlled his temper, but he was not tolerant of people who did not tell the truth, or hurt his family. He also did not have any tolerance for gang activity. The prosecutor then asked Ms. Garcia whether Garrison had any thoughts or reacted with anger after 9-11, or whether he had “any anger towards, like most people did, Al-Qaeda or—.” Appellant’s objections to these two questions were sustained. The prosecutor approached, and after an unreported bench conference, he was permitted to ask: “Is it fair to say he also was intolerant of terrorists?” Garcia said yes, and also agreed that Garrison would be disapproving of gang members, criminals and terrorists, and would be upset if he heard about a crime in the Antelope Valley.
On cross-examination, defense counsel asked Ms. Garcia if Garrison had indicated he had been having problems with gang members and was afraid they would hurt him. She said no. Counsel then asked, “Did he ever come home and say, ‘You know, honey, it’s after 9-11, and I was a Marine, and, my God, I’m really scared. I think there’s a group of terrorists that’s going to try and kill me at Schooners?’ Did he ever tell you that?” Garcia said no.
After Garcia’s testimony, defense counsel moved to strike her testimony. First he argued that since Garcia was not a percipient witness, her testimony would only have been appropriate during the penalty phase of a trial. Counsel also argued that the questioning about 9-11, Al Qaeda and terrorism should be stricken as more prejudicial than probative under Evidence Code section 352. We find no abuse of discretion in the court’s denial of the motion.
The prosecution theory was that the shooting was brought on by an earlier argument at Schooners, when a Schooners employee denied appellant and Brian Lewis entry and directed a racial epithet at appellant. Garrison was manager of the club, and oversaw security. He was in the vicinity of the argument, and walked over to appellant and reiterated that he could not enter the club. There was evidence that appellant and Tony Munnassar were Muslim. The defense denied that appellant had been outside Schooners on that night, or that he ever had any problems at the club.
Evidence that Garrison was not tolerant of terrorists and gang members supported the inference that he and the security personnel he supervised could have instigated a conflict with appellant by denying him entry based on his ethnicity and manner of dress. Ms. Garcia’s testimony to that effect was brief. While there was some potential for prejudice from the references to 9-11, it was slight, and was outweighed by the probative value of inferences of bias and intolerance which followed that event. We conclude there was no abuse of discretion in the admission of this evidence.
More importantly, we find admission of the challenged evidence did not result in a miscarriage of justice. (Cal. Const., art. VI, § 13.) The jury was instructed before and after the presentation of evidence that it must not let bias, sympathy or prejudice influence its decision.
Defense counsel addressed the challenged evidence directly during closing argument: “Remember that big poster cut-out? Remember this? When you first saw this and learned that this was a life-size cut-out of the man that died in this case, did your heart start beatin’ a little faster? Did your throat get dry thinking about it? You start breathin’ a little heavier? Did your palm start gettin’ a little sweaty? Because if you did—any of these happen to you? Any of things happened, you had an emotional response from here, right from here, the very thing in a jury trial that is supposed to be played down and removed ‘cuz you’re supposed to work from here. You heard about terrorism, 9-11, and Al-Qaeda. What the heck was that about? What was that about? Well, my client’s Muslim. That’s what that’s about, trying to get you to think from here and not from here. I would hope that on [the prosecutor’s] last argument he can explain to you the purpose of Al-Qaeda and 9-11 and terrorism and why this big poster cut-out instead of something more along the size we would see on the top of a casket at a funeral. You already have pictures. You have autopsy pictures. What’s this serve? Why did [Garrison’s] wife testify? What was her input that helped provide you with facts related to the shooting which is why we’re here, or was that just another attempt to work on your—work on your gut?”
In his rebuttal, the prosecutor addressed these claims, relying in part on Brian Lewis’s testimony that after the shooting, appellant said something like “Allah.” “The fact that 9-11 was six months earlier helps the witnesses get their bearings. The fact that [appellant is] Muslim should not be held against him in any way except to the extent that it explains Brian Lewis’s testimony. That’s it.” We find no miscarriage of justice resulted from admission of this evidence.
V
Appellant claims he was deprived of due process when the court allowed Elisa Carpio’s sister, Janice Carpio, to testify, despite the prosecutor’s failure to provide the defense with a written summary of her expected testimony. When defense counsel raised this issue, the prosecutor explained he thought Janice had been interviewed, but apparently she had not. “I assumed she’d either testify or had given a formal statement. She hadn’t. I just asked her if she knew certain things; so counsel wanted at least a verbal proffer from me, wanted to know if I had notes. I didn’t, and I just typed down basic topics I want to give him so at least he has some idea.” The prosecutor said it was his understanding that “if we take notes, we have to give them over, and counsel asked me to write a summary up; so I decided to write a summary up but, you know, I interviewed her. I just don’t have a statement to give him. I can give him a verbal. He can speak with her beforehand. There is not a statement from her.”
Defense counsel said he would have an investigator interview the witness, and have him prepare a report which he would give to the prosecutor. The court asked the prosecutor for an offer of proof. The prosecutor said Janice Carpio would testify that she knew, or knew of, Tony and Brian; she knew that appellant had guns and she had seen the guns; she spoke with her sister Elisa after the shooting about what had happened; she knew her sister’s emotional condition, and her mother’s nature and condition. He continued, “This is the sister that Elisa moved in with—and her involvement thereafter, which was just assisting her, and that Elisa did tell her about the relationship with Tony; so just areas of consistent statements that Elisa said, which we’re not even clear she was needed until cross-examination by counsel; so . . . .” The prosecutor further noted that Janice Carpio was on the witness list, and it was known that Janice was with Elisa when Elisa made statements to the police. Defense counsel continued to object, but the court allowed the testimony.
Under section 1054.1, subdivision (f), the prosecuting attorney is required to disclose to the defendant or his attorney “Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, . . .” The disclosure is to be made at least 30 days prior to trial; if the information becomes known within 30 days of trial, the disclosure is to be made immediately. (§ 1054.7.)
Section 1054.3 imposes the same obligation on defense counsel.
“Upon a showing that a party has not complied with Section 1054.1 or 1054.3 . . ., a court may make any order necessary to enforce the provisions of this chapter, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure.” (§ 1054.5, subd. (b).) We review a trial court’s ruling on discovery sanctions under an abuse of discretion standard. (People v. Ayala (2000) 23 Cal.4th 225, 299.)
The prosecutor did not disclose Carpio’s statements to the defense before trial, and the fact that he had not taken a written statement or made notes did not excuse him from doing so. (See Roland v. Superior Court (2004) 124 Cal.App.4th 154, 165.) But we find no resulting harm. Janice Carpio’s name was on the witness list and in police reports, and the prosecutor provided defense counsel with a summary of her expected testimony. He also made Ms. Carpio available to defense counsel during the hour and forty-five-minute lunch break which preceded cross-examination, and provided defense counsel with her telephone number. Defense counsel neither spoke with Ms. Carpio before cross-examining her, nor asked for a delay before beginning cross-examination. On this record, we find neither an abuse of discretion nor resulting harm in admission of this testimony without a discovery sanction.
VI
Over appellant’s objection, the trial court instructed the jury in terms of CALCRIM No. 357, as follows: “If you conclude that someone made a statement outside of court that accused the defendant of the crime or tended to connect the defendant with the commission of the crime and the defendant did not deny it, you must decide whether each of the following is true: one, the statement was made to the defendant or made in his presence; two, the defendant heard and understood the statement; three, the defendant would under all the circumstances naturally have denied the statement if he thought it was not true; and, four, the defendant could have denied it at that time but did not. If you decide that all of the these requirements have been met, you may conclude that the defendant admitted the statement was true. If you decide that any of these requirements has not been met, you must not consider either the statement or the defendant’s response for any purpose.”
This instruction is based on Evidence Code section 1221, which provides: “Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.”
The adoptive admission instruction was based on a portion of a taped jailhouse conversation between appellant and his stepmother:
“THE STEPMOTHER: You’ve been—you’ve been runnin’ for a while behind this; so we—you’re gonna get some closure here. You can get on with your life.
“THE DEFENDANT: Yeah. Yeah. Actually, what it is is I was running before. This thing has made me stop to where I can be got a hold of, and that—that was the thing.”
“THE STEPMOTHER: Yeah.
“THE DEFENDANT: And that kinda changed everything, and it—it had to start from inside of here—
“THE STEPMOTHER: Right.
“THE DEFENDANT: --First.
“THE STEPMOTHER: Right.
“THE DEFENDANT: And that’s—that’s the best thing.
“THE STEPMOTHER: You’re ready to face it. I’m proud of you for that.
“THE DEFENDANT: Like, yeah. I mean I got the most trusting handhold ever.
“THE STEPMOTHER: That’s right.
“THE DEFENDANT: You know? So whatever—whatever—
“THE STEPMOTHER: I’m glad you can trust that. That’s what’s important.”
Appellant argues that his stepmother’s words did not accuse him of being involved in the charged crimes, and thus his failure to deny involvement was not an adoptive admission. A direct accusation “in so many words” is not essential for an adoptive admission. (People v. Fauber (1992) 2 Cal.4th 792, 852.) To fall within that exception to the hearsay rule, “it is sufficient that the evidence supports a reasonable inference that an accusatory statement was made under circumstances affording a fair opportunity to deny the accusation; whether defendant’s conduct actually constituted an adoptive admission becomes a question for the jury to decide.” (People v. Edelbacher (1989) 47 Cal.3d 983, 1011.)
The jury could reasonably infer that in stating that appellant had been running “for a while,” appellant’s stepmother was referring to appellant having been on the run since the shooting. This could support the inference of flight, which would indicate his consciousness of guilt. The jury could then interpret appellant’s failure to deny the inference as an adoptive admission.
Appellant claims he was referring to his wife’s affair with Tony Munnassar when he did not deny that he had been running. If the jury understood the stepmother’s statement and appellant’s response in that manner, then it would not have found the predicate facts for an adoptive admission. In that event, the instruction advised that the jury “must not consider either the statement or the defendant’s response for any purpose.” There was neither error nor harm from the court’s instruction.
We have found no prejudicial error, and find no cumulative effect from multiple errors which would require reversal.
VII
Appellant claims the sentence imposed on count 5, shooting at an occupied building, should be stayed pursuant to section 654 because it was part of an indivisible course of conduct which also formed the basis of his convictions for murder and attempted murder. Section 654, subdivision (a) provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” “A course of conduct that constitutes an indivisible transaction violating more than a single statute cannot be subjected to multiple punishment.” (People v. Martin (2005) 133 Cal.App.4th 776, 781.) There is a multiple victim exception to section 654: “[E]ven though a defendant entertains but a single principal objective during an indivisible course of conduct, he may be convicted and punished for each crime of violence committed against a different victim.” (People v. Martin, supra, 133 Cal.App.4th at p. 781.) The reason for this exception is that a defendant has greater culpability when he or she commits an act of violence with the intent to harm more than one person, or by means likely to cause harm to several persons. (People v. McFarland (1989) 47 Cal.3d 798, 803.)
In this case, in counts 1 through 4, appellant was convicted of murder and attempted murder of four persons standing outside Schooners. Count 5, shooting at an occupied building, was directed at additional individuals—those who were inside the building. It was estimated there were 600 to 800 patrons inside the building at the time of the shooting. Where, as here, the same course of conduct resulted in the commission of violent crimes against different victims, section 654 is not applicable. (See People v. Garcia (1995) 32 Cal.App.4th 1756, 1784-1785.)
VIII
Appellant claims that under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), the trial court erred by imposing an upper term and by imposing consecutive sentences based on facts that were neither found by the jury nor admitted by him. He also argues that the trial court’s use of the same factors to aggravate the sentence on count 5 and to impose consecutive sentences on all counts violated the prohibition against dual use of facts.
At the sentencing hearing, the court found the following circumstances in aggravation to be true: “[T]he crime involved great violence, great bodily harm, of great bodily harm or other attitudes disclosing a high degree of cruelty and viciousness and callousness. Two, the defendant was armed with or used a weapon at the time of the commission of the crime. Three, the manner in which the crime was carried out indicates planning, sophistication or professionalism. Four, the defendant has engaged in violent conduct which indicates a serious danger to society. And five, the defendant’s prior convictions as an adult are numerous or are of increasing seriousness.” Based on these aggravating factors, the court selected the high term of seven years on count 5.
“Cunningham requires us to recognize that aggravating circumstances serve two analytically distinct functions in California’s current determinate sentencing scheme. One function is to raise the maximum permissible sentence from the middle term to the upper term. The other function is to serve as a consideration in the trial court’s exercise of its discretion in selecting the appropriate term from among those authorized for the defendant’s offense. . . . Federal constitutional principles provide a criminal defendant the right to a jury trial and require the prosecution to prove its case beyond a reasonable doubt as to factual determinations (other than prior convictions) that serve the first function, but leave the trial court free to make factual determinations that serve the second function. It follows that imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black (2007) 41 Cal.4th 799, 815-816; see Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [right to a jury trial does not apply to the fact of a prior conviction].)
Appellant’s criminal history rendered him eligible for upper term sentencing, and the trial court was then entitled to consider and apply any other proper sentencing factor, even if it does not involve recidivism. Under People v. Black, supra, 41 Cal.4th at pages 815-816, imposition of the upper term passes constitutional muster even though it was based on both recidivist and nonrecidivist factors.
Appellant also claims the court’s imposition of consecutive terms pursuant to section 669 violated his right to jury trial because it was based on facts not found true by a jury. A trial court’s decision whether to run sentences consecutively or concurrently does not implicate a defendant’s Sixth Amendment rights. (People v. Black, supra, 41 Cal.4th at p. 821.)
Finally, appellant claims the court improperly relied on the same factors to aggravate the sentence on count 5 and to impose consecutive sentences on the other counts, in violation of section 1170, subdivision (b). He is correct. But dual use of the same facts for imposition of an upper term and a consecutive term will not necessitate resentencing if it is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error. (People v. Coleman (1989) 48 Cal.3d 112, 166.) As the court explained in People v. Osband (1996) 13 Cal.4th 622, 728-729: “Only a single aggravating factor is required to impose the upper term [citation], and the same is true of the choice to impose a consecutive sentence [citation]. In this case, the court could have selected disparate facts from among those it recited to justify the imposition of both a consecutive sentence and the upper term, and on this record we discern no reasonable probability that it would not have done so.”
The same is true in this case. The court listed five factors in aggravation. The court could have relied solely on the recidivist factors to support imposition of the upper term, leaving several others to support its decision to impose consecutive sentences. Any error was harmless.
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J., MANELLA, J.