Opinion
H046965
05-23-2022
THE PEOPLE, Plaintiff and Respondent, v. LUIS ALVAREZ, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. C1489848
BAMATTRE-MANOUKIAN, J.
I. INTRODUCTION
Defendant Luis Alvarez appeals after a jury found him guilty of the first degree murder (Pen. Code, §§ 187, 189) of Michael Maynard. The trial court sentenced defendant to 25 years to life.
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant contends that he was denied a meaningful opportunity to present a defense when the trial court excluded exculpatory hearsay evidence; insufficient evidence supports the jury's finding of premeditation and deliberation; and the trial court erred when it did not instruct the jury sua sponte on involuntary manslaughter. Defendant also requests that we review the sealed transcript of an ex parte hearing "with a general view to [his] right to counsel both below and on appeal [citations], and to [his] right to due process [citations]." The Attorney General contends that the hearsay evidence proffered 1 by defendant was properly excluded; substantial evidence supports the jury's verdict; and involuntary manslaughter instructions were not required. The Attorney General has no objection to our review of the sealed transcript.
For reasons that we will explain, we affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Prosecution Evidence
1. The Incident, Maynard's Cause of Death, and Defendant's Arrest
At approximately 2:00 a.m. on July 29, 2014, Maynard was chased through Cesar Chavez Park in San Jose by a group of three to five men. Maynard fell when he reached the street, and the men kicked and punched him while he was on the ground.
A security guard at a nearby hotel and a deliveryman each saw the attack from afar and called 911. The deliveryman ran over and yelled at the men to get out of there. Someone responded by saying something like," 'This doesn't concern you white boy.'" The deliveryman also heard someone call out something about Norteños or something that sounded like a gang. The attackers appeared to be Hispanic men between 18 and 20 years old. One of the men was approximately 6'1" or 6'2" and the others were approximately 5'9". The taller man was wearing either a "button-up" shirt with a "squared, striped-type" pattern or a red and white checkered pattern and was standing next to Maynard at one point, "[f]ighting, punching, [and] kicking [him]." At some point, the attackers ran off. The deliveryman approached Maynard and saw that he had been stabbed in the back and that his neck and head were cut open.
When the police arrived, Maynard was on the ground with several people around him rendering aid. Maynard was moaning in pain, had a lot of blood on him, and was lying in a pool of blood. There was also a lot of blood on the ground. Maynard was taken away by ambulance, but medical interventions were unsuccessful.
Maynard died from 14 sharp force injuries that caused a fatal loss of blood. Maynard had seven stab wounds on his back and left leg, seven incised wounds on his 2 head and neck, and several abrasions and contusions on his face and hands. Three of the stab wounds were to Maynard's back. One stab wound injured Maynard's liver, diaphragm, and lung, resulting in blood loss and impairing his ability to breathe. The other stab wounds to Maynard's back did not strike any vital organs. The remaining four stab wounds were to Maynard's left leg, three of which were to his left thigh. None of the stab wounds was deeper than two and a half inches.
One of the incised wounds on Maynard's head was five and five-eighths inches long, going from above his eyebrow to the back of his head. The wound was half an inch deep at its greatest point and entered the skull bone. Another incised wound to Maynard's head was three and a quarter inches long and nine-sixteenths of an inch deep, injuring his scalp and skull bone. A third incised wound to Maynard's head was four and a quarter inches long and one-sixteenth of an inch deep. It did not damage the bone. A fourth incised wound, which was an inch long and one-eighth of an inch deep, was to Maynard's neck.
None of Maynard's major arteries was perforated or cut in the attack. Although there could have been small spurts of blood, an assistant medical examiner opined that Maynard's blood loss would have been "a little bit slower" than when major arteries are cut. Maynard's blood would generally have poured or oozed slowly out of his body as opposed to spraying. The assistant medical examiner could not determine whether more than one weapon caused the injuries, but there was a good chance that at least one knife with a blade at least two and a half inches long was used.
A police officer interviewed the deliveryman. The deliveryman said that he heard yelling coming from the park and saw five men chasing another man. When the group caught up with the man, "they started boot stomping him." When the deliveryman ran up and yelled at the attackers to leave the man alone, he heard them yell," 'Norte[ñ]os.'" They also told him that "it wasn't his concern white boy." The deliveryman ran back to the delivery truck to get his partner. The two men then told the attackers to leave the 3 victim alone and the group fled. A white car pulled up alongside the attackers. The deliveryman ran up to the victim. When he looked back, the car and the group of men were gone.
The deliveryman told the officer that he saw a knife but was unable to tell who had the weapon. The deliveryman said he would not be able to identify the attackers because he did not see their faces, but he was able to give a general description of three of them. He told the officer that they were Hispanic men between the ages of 18 to 20. One was six feet tall and 160 pounds and wore a red and white checkered shirt. Another was 5'9," 150 pounds, and wore a white t-shirt. He described the third man as 5'9". The deliveryman was unable to specify what each of the attackers was doing during the attack on Maynard.
The deliveryman testified that he told the police officer that he thought he saw a knife.
Defendant was arrested about a block from Cesar Chavez Park at approximately 11:20 p.m. on the date of the attack. Defendant had no weapons on him. Defendant's right fingers had scabbing or red marks on them. Defendant's left arm was not in a sling and he used his left hand to open a water bottle. There were stains on his left shoe that appeared to be blood. The police collected defendant's jeans and shoes. Defendant wanted to keep his shoes on and appeared to be upset that his shoes were taken. Defendant was not wearing a red and white checkered shirt when arrested. Defendant was 20 years old and was 6'1" tall.
2. Additional Evidence
A swab of defendant's left shoelaces tested positive for the presence of blood. A criminalist determined that Maynard was the source of the DNA on the shoelaces swab. Several areas of red staining on defendant's jeans also tested positive for the presence of blood. The criminalist took three cuttings of defendant's jeans where blood was detected-the exterior front right thigh-knee area, left thigh-knee area, and crotch area. 4 The criminalist determined that Maynard was the source of the DNA on the three cuttings and the source of the DNA on a swab of the right shin of defendant's jeans. In addition, Maynard was the source of the DNA on 11 bloodstain swabs taken from the street where he was found. The criminalist opined that Maynard's DNA profile was rarer than that which would occur in 1 in 300 billion people.
Video surveillance footage recorded near Cesar Chavez Park approximately two hours before the attack showed defendant walking with a group of people. Defendant's left arm was in a sling. The others in the group appeared to be shorter and heavier than defendant, and some of them had long hair.
Four days before the attack on Maynard, defendant was carrying a red, white, and black checkered button-down shirt when he was detained by police officers.
3. Gang Evidence
San Jose Police Officer John Vandenbroeck participated in the investigation of Maynard's murder and testified as an expert on criminal street gangs. Officer Vandenbroeck stated that the Norteños are a gang whose members identify with the color red and the number 14. The Sureños are the Norteños' enemies and identify with the color blue and the number 13. The Norteños are the dominant gang in San Jose and are "the overarching umbrella" with "street hoods" beneath them. Approximately 20 "hoods" in San Jose align with the Norteños. To join a "hood," individuals have to have someone vouch for them or "put in work," which often means committing an act of violence. One of the purposes of being a gang member is to commit crimes, including crimes of violence.
In Officer Vandenbroeck's experience, gang members sometimes announce the name of their gang during the commission of a crime. For example, prior to an assault, gang members might yell out" 'Norte'" to show rival gangs that the Norteños are responsible for the crime and to increase witnesses' fear. 5
Officer Vandenbroeck identified defendant in several photographs, three of which were obtained from social media websites. The photographs depict defendant making gang signs and wearing red.
Officer Vandenbroeck encountered defendant around 2012 in a Norteño area. Defendant and his friends were dressed like Norteños. Officer Vandenbroeck warned them," 'Look, what you're wearing out here, you guys are going to end up getting assaulted or something bad is going to happen.'" Defendant was shot later that night.
Based on the facts of this case, the photographs posted on social media, and his encounter with defendant, Officer Vandenbroeck opined that defendant was a Norteño.
B. Defense Evidence
San Jose Police Officer Michael Anjari interviewed the hotel security guard on the date of the attack. The guard told Office Anjari that he saw five to six people chasing someone from an alleyway near the hotel through the park. The group included men and women. The guard stated that the man being chased fell to the ground when he reached the other side of the park. The group immediately surrounded the man and began to punch and kick him while he was on the ground. The guard called 911. At some point after the guard completed the 911 call, the group ran off. The guard stated that he could not identify any of the attackers.
San Jose Police Officer Michael Borges identified photographs of various items from the crime scene, including the park, that might have had evidentiary value.
Medical records established that defendant was treated for an injury to his left arm in May and August 2014. 6
C. Procedural Background
Defendant, Marvin G., and Luis G. were charged with Maynard's murder (§ 187), and it was alleged that they committed the murder for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). Defendant was also charged with an unrelated second degree robbery (§§ 211, 212.5, subd. (c)). Luis and Marvin were discharged from the case at the conclusion of the preliminary hearing, and the gang enhancement against defendant was subsequently dismissed pursuant to section 995.
We refer to Marvin G. by his first name because he was a juvenile at the time of the offense. (See Cal. Rules of Court, rule 8.401(a)(2).) We refer to Marvin's brother, Luis G., by his first name as well. (Id., rule 8.401(a)(3).)
The parties stipulated to the severance of the murder and robbery charges for trial. A jury found defendant guilty of first degree murder. The trial court granted the prosecution's motion to dismiss the robbery charge.
The trial court sentenced defendant to 25 years to life in prison.
III. DISCUSSION
A. Exclusion of Exculpatory Hearsay Evidence
Defendant moved in limine to present evidence of statements made to the police and district attorney investigators by a confidential informant identified as John Doe, who was unavailable as a witness. Doe stated that Marvin, a former defendant in this case, "took ownership" of Maynard's stabbing and told him that the person in custody for it "didn't pretty much do anything he was just in that crowd." The trial court excluded the evidence as inadmissible hearsay, finding that Marvin's statements to Doe did not qualify as declarations against interest under Evidence Code section 1230 and that Doe's statements to the police and the investigators did not fall under any hearsay exception, including past recollections recorded under Evidence Code section 1237. The court also rejected defendant's constitutional claim that the admission of the statements was necessary for him to present a complete defense. 7
Defendant contends that the trial court "erred at both levels of hearsay" and that the court's exclusion of the exculpatory evidence denied him a meaningful opportunity to present a defense. Defendant asserts that Marvin's statements to Doe qualified as declarations against interest, but concedes that there was no hearsay exception for Doe's statements to law enforcement. Relying primarily on Chambers v. Mississippi (1973) 410 U.S. 284 (Chambers) and Kubsch v. Neal (7th Cir. 2016) 838 F.3rd 845 (Kubsch), defendant argues that "[t]he mechanistic application" of the foundational requirements for the past recollection recorded hearsay exception "should not have been applied [to Doe's statements to law enforcement] to prevent the presentation of exculpatory evidence in this case." The Attorney General contends that the trial court did not abuse its discretion in excluding the hearsay evidence and that the evidence's exclusion did not deprive defendant of his right to present a defense.
We conclude that the trial court's exclusion of the statements was proper and did not violate defendant's constitutional right to present a defense.
1. Factual Background
In August 2014, the prosecution charged Marvin, Luis, and defendant with Maynard's murder. A year later, at the conclusion of the preliminary hearing, Marvin and Luis were discharged from the case.
Doe was interviewed by San Jose police detectives in July 2016 and by district attorney investigators in November 2017. Both interviews were video recorded.
a. Doe's July 2016 San Jose Police Interview
Doe was interviewed in custody after he had been arrested for carjacking. Doe stated at the start of the interview that he needed to know whether he could go home for at least a couple of days. The detectives responded that they could not make Doe any promises but they could "definitely . . . try to get some consideration for [him]," depending on what Doe said and whether it could be verified. Doe stated that "telling you guys this like . . . it's gonna ruin me," but then stated, "Not, not ruin me but . . . ." 8
Doe stated that the murder was committed "in retaliation for Shrek." Shrek was from "our hood [and] got killed downtown" about a year before the murder in this case. Shrek was "shot by a [B]lack guy in his back [a] couple times," ran, fell, and was shot again. Shrek was "an SJG member."
According to Doe, around the time of Shrek's murder, a "3rd generation [of SJG] was coming out." "[T]hey wanted . . . the 3rd generation . . . to come out strong," and they decided that "the retaliation for Shrek's murder [was] the best bet."
Doe stated that he thought three people were arrested for the retaliatory murder, one of whom was still in custody. Doe said, "[T]he one who actually did it . . . you guys let go," and identified that person as Marvin, using Marvin's nickname, Little Shark. Doe told the detectives that Marvin was Joshua Hernandez's, aka Sleepy G's, SJG recruit.
Doe said that he met with Hernandez within the last year and that Hernandez brought Marvin with him. Doe stated, "Now when he brought [Marvin] with um is when he had told me that . . . [Marvin] was the one responsible for the murder. [¶] And that . . . he kept his mouth shut, stayed strong, didn't you know didn't budge for two years. [¶] And that's what . . . sealed the deal for him to become an SJG member."
A detective asked whether it was Hernandez "who told [Doe] this." Doe conveyed that Hernandez and Marvin were together and "[t]hey" were talking to him. When a detective asked whether Marvin told Doe what happened, Doe responded, "He basically just said yeah I kept my mouth shut . . . ." Doe also stated, "[T]hey had said [¶] . . . [¶] that pretty much . . . it wa- he, he stuck um it was all stab, no, nah you know? [¶] And that it was basically . . . the way they did it was it was . . . a group of you know the 3rdgeneration and they basically walked over to the guy . . . [¶] . . . [¶] you know surrounded um . . . [¶] . . . [¶] and . . . he stuck um . . . I don't wanna say a number because I can't remember exactly. [¶] But he stuck um until he fell. [¶] . . . [¶] And then . . . basically they, they did it like that and they all walked away. [¶] . . . [¶] [P]retty much in the same 9 way that they walked over in a group they walked away." Doe stated that Hernandez was not at the crime scene.
Later in the interview, when asked if he knew the names of the other people present at the killing, Doe said that he did not know any specific names, that "[t]he only one I know is him," and that the person who was still in custody "that they said that they found [with] blood on his shoes" was there, too. When a detective tried to confirm whether that individual was the one still in custody, Doe responded, "Yeah he's the one that's still in custody the one that had blood on his shoes. [¶] That wasn't that didn't pretty much do anything he was just in that crowd." When a detective asked Doe where he got that information, Doe responded that it "came from [Hernandez]."
Doe described Hernandez as the gang's "mouthpiece" and "the guy [that] if . . . he says it, it goes." Doe stated that Marvin trusted Hernandez because Hernandez recruited him. Doe explained that a recruiter is like an older brother. If the person being recruited does something stupid, the recruiter is the person to call him on it. Whereas if the person being recruited does something good, the recruiter gets credit for "recruit[ing] the right dude" who is "putting in some work . . . ." Doe continued, "So . . . for him to come to [Hernandez] and tell him aye . . . this is what I did . . . you know . . . and I was locked up . . . and I didn't held my mud I didn't say shit, nothing for two years. [¶] . . . [¶] It looks really good."
Doe explained that Hernandez introduced Marvin to him by saying," 'Aye this is Little Shark' . . . 'This is the one . . . [¶] . . . [¶] who, who did the, the . . . [¶] . . . [¶] stabbing for . . . Shrek.' [¶] . . . [¶] 'Was locked up for two years and didn't say shit' that's . . . [¶] . . . [¶] pretty much exactly what he said. [¶] . . . [¶] And [Marvin] looked at me like you know give me a hug type thing." The detectives tried to clarify Marvin's demeanor when Hernandez was telling Doe this information. Doe responded that "[h]e was just pretty much like yeah I kept it solid." When the detectives asked if that meant that Marvin basically "took ownership" of "doing it without saying it," Doe responded 10 affirmatively. Doe explained, "[I]f you were to tell me that oh you went and did it you're in county and kept it solid that means . . . you did what you had to do, kept your mouth shut, didn't tell, didn't do nothing." A detective confirmed, "[S]o that means he took ownership?" Doe responded, "Yeah."
Doe stated that he did not have a conversation with Marvin about the specifics of the stabbing. Doe said that talking to Marvin about it was "pretty much . . . useless" and described Marvin as "an idiot." When asked whether all Marvin said was," 'Yeah I kept it solid, '" and whether Marvin was agreeing with what Hernandez said, Doe responded, "Yeah." Marvin did not "break it down," but he "took ownership . . . [¶] . . . [¶] for it."
At the conclusion of the interview, the detectives told Doe that he would not be released. Doe expressed that he had a lot to lose that day and that it was "because of today" that he agreed to speak to them. Doe elaborated, "The whole reason for doing this is so that I could go see my kids . . . ."
b. Doe's November 2017 Interview with District Attorney Investigators
Doe's attorney was present for his interview with the district attorney investigators. Doe told the investigators that his statements to the detectives were the truth. Doe added that he was coming down from drugs during the police interview but that to his recollection everything was correct.
Doe stated that he met Marvin with Hernandez while the three of them were getting high. Doe could not remember the exact words but Hernandez said something like," 'This is the person who got . . . retaliation for Shrek.' [¶] . . . [H]e never said yes . . . he never said no . . . he just kinda like . . . signified like yeah." When an investigator asked whether Doe meant that Marvin acknowledged what Hernandez was saying, Doe responded affirmatively. Doe continued, "[T]hen he was like 'Yeah he, he got busted for it or they took um in he did two years . . . kept his mouth shut the whole time . . . they didn't have enough evidence so they let um go.' [¶] And then . . . [Marvin] 11 said 'Yeah they have someone in custody but the only reason they have um is 'cause he had blood on his shoes.'" Doe said that after that, he never heard anything more from Marvin. Hernandez said that he thought Marvin was "solid" and that he was going to "put the hood on his arm."
Doe stated that "the way [it] was explained was . . . that there was a group of them . . . pretty much a group walked over to the dude . . . you see some whatever and then the group walked away from the dude. [¶] And the dude's on the ground. [¶] And . . . that's when [Hernandez] had told me . . . this is the person that . . . pretty much was the one who did it all." An investigator clarified, "That [Marvin]?" Doe responded, "[S]tabbed the guy, yeah." Doe continued, "[W]hen he had said that this person was the person responsible for it he kinda was standing there . . . and he was just like . . . you know what I mean he kinda like nod[ded] his head . . . ." When an investigator asked if Marvin was acknowledging what was being said, Doe responded affirmatively. When asked if Marvin was saying that it was him, Doe responded, "Yeah, yeah and he goes well with that he was locked up two years . . . didn't say anything . . . person that they have, the only reason they have um 'cause he has blood on his shoes . . . and . . . pretty much for that I'm nah put the hood on um . . . ." Doe assumed that the stabbing was what sealed the deal for Marvin becoming an SJG member. Marvin did not have to get jumped into the gang.
Doe said that there was no word on the street that the gang was going to retaliate for Shrek's murder and that no one ever said that they were going to retaliate. Doe stated that the third generation wanted to put their name out there and put themselves on the map and were saying they were going to find a way to do it.
Doe did not know where Hernandez got the information about what happened. Doe was unsure whether it was Hernandez or Marvin who told him that "the guy with the blood on his shoe was just there and didn't do anything." Doe stated, "They just [said] that . . . the only way they had him was because he had blood on his feet." Doe 12 subsequently added, "[W]hen he said the only reason they have ole boy in custody is because there's blood on his feet, . . . that came from [Marvin]," and that Hernandez told Doe that Marvin was responsible for the stabbing. Doe said that he had never heard of anyone else's involvement in the stabbing other than Marvin.
Doe continued, "[I]f the other guy had did something . . . and [Marvin] didn't want him to take credit for it . . . he would've said yeah the dude didn't do nothing. [¶] But he might I mean as far as I know he could've and [Marvin] just didn't bring it up. [¶] No one's talked to the other guy."
Doe said that he did not really like Marvin and did not want to be around him, and described Marvin as "really dope fiendish."
2. Trial Court Proceedings
In a motion in limine, defendant moved to introduce Doe's statements that Marvin admitted that he stabbed Maynard and that defendant was merely a bystander. Defendant asserted that Marvin's statements to Doe were admissible under Evidence Code section 1230 as declarations against interest. Acknowledging that Doe's statements to law enforcement were also hearsay as Doe was unavailable as a witness, defendant claimed that Doe's statements "might be admissible" under Evidence Code section 1237 as past recollections recorded although it was unclear whether the foundation could be laid since Doe would not be testifying. Defendant argued that Doe's statements should be admitted even if "technically hearsay" because the statements "constitut[ed] [his] defense" and "the use of the hearsay rule to exclude the statements [would effect] a disproportionate harm in relation to the purposes the rule is designed to serve."
Like Marvin, Doe was unavailable as a witness because he invoked his Fifth Amendment privilege against self-incrimination.
The prosecution opposed the motion, contending that the statements should be excluded as they contained multiple levels of hearsay; defendant had failed to establish that Marvin's statements qualified as declarations against interest; and the due process 13 clause did not require admission of the statements. The prosecution also asserted that the statements should be excluded under Evidence Code section 352 as unduly prejudicial because they would confuse the jury and cause an undue consumption of time.
The trial court excluded the statements. The court first determined that Marvin's statements did not constitute declarations against interest. The court observed that Marvin made the statements to fellow gang members during a conversation about a murder where the charges against him had been dismissed. The court found that even assuming that Marvin's attorney informed him that the murder charge against him could be refiled, "[a]n equally and more likely scenario is that Marvin was bragging to his fellow gang members about doing this murder by himself in order to gain street credibility." The court continued, "However, for appellate [re]view, assuming this court is incorrect in [its] analysis, the court further finds that Marvin's statement that defendant . . . did nothing is clearly not a statement against penal interest. The court has read the cases cited by [defense counsel] where defendants inculpate others, and that is still considered a declaration against interest[]. [¶] Our facts are distinguishable, as Marvin's statements inculpate him[self] and, if believed, exonerate the defendant, who is not a member of Marvin's gang."
The court stated that it "disagree[d] with the Grimes case" because "when somebody wants to take ownership for a crime, given these circumstances, and then says that somebody else didn't do anything, which bolsters his position in a gang community, it didn't seem . . . that would qualify as a declaration against interest." (Italics added.) The court later elaborated that it believed Marvin had "a motive to say he was the stabber so he can have greater respect in his gang community," and highlighted a passage in Grimes recognizing that not all declarations against interest are admissible and that sometimes the declarant" 'ha[s] a substantial incentive to exculpate others. A member of 14 a criminal street gang, for example, may choose to take a fall for fellow gang members by making a confession that exculpates them. [¶] A trial court, in that situation, may reasonably conclude that the declarant's incentive to protect his friends renders the exculpatory portions of the statement inadmissible.' "
People v. Grimes (2016) 1 Cal.5th 698 (Grimes).
Finding that the proffered evidence contained multiple levels of hearsay, the court determined that Doe's statements to law enforcement about what Marvin told him were not admissible as past recollections recorded because Doe would not testify to them. Doe's statements were "double hearsay. That's basically the bottom line."
Finally, the court rejected defendant's constitutional claim. The court stated, "Both the defendant and the [P]eople must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence."
3. Legal Principles and Standard of Review
"[A] hearsay statement is one in which a person makes a factual assertion out of court and the proponent seeks to rely on the statement to prove that assertion is true." (People v. Sanchez (2016) 63 Cal.4th 665, 674 (Sanchez).) Both an oral or written expression and nonverbal conduct can qualify as a statement. (Evid. Code, § 225.)
"Hearsay is generally inadmissible unless it falls under an exception. (Evid. Code, § 1200, subd. (b).)" (Sanchez, supra, 63 Cal.4th at p. 674.)" 'The chief reasons for this general rule of inadmissibility are that the statements are not made under oath, the adverse party has no opportunity to cross-examine the declarant, and the jury cannot observe the declarant's demeanor while making the statements.' [Citations.]" (People v. Duarte (2000) 24 Cal.4th 603, 610.) Generally, when the proffered evidence is double hearsay, meaning that it contains multiple levels of hearsay, each hearsay layer must fall within an exception to the hearsay rule to be admissible. (Evid. Code, § 1201.)
We review a trial court's ruling on the admissibility of evidence, including a decision that turns on the hearsay nature of evidence, for an abuse of discretion. 15 (People v. Waidla (2000) 22 Cal.4th 690, 725.) Under that standard, the trial court's decision must be reversed if it was "so erroneous that it 'falls outside the bounds of reason.' [Citations.] A merely debatable ruling cannot be deemed an abuse of discretion. [Citations.] An abuse of discretion will be 'established by "a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice."' [Citation.]" (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390 (Bryant).)
"A trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence." (People v. Cluff (2001) 87 Cal.App.4th 991, 998.)"' "[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only '" if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he [or she] did." . . . '"' [Citation.]" (People v. Gregerson (2011) 202 Cal.App.4th 306, 319-320.)
4. Marvin's Statements to Doe
As relevant here, "[e]vidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, . . . so far subjected him [or her] to the risk of . . . criminal liability . . . that a reasonable man [or woman] in his [or her] position would not have made the statement unless he [or she] believed it to be true." (Evid. Code, § 1230.) The rationale underlying the declaration against interest hearsay exception is that" 'a person's interest against being criminally implicated gives reasonable assurance of the veracity of his [or her] statement made against that interest,' thereby mitigating the dangers usually associated with the admission of out-of-court statements. [Citation.]" (Grimes, supra, 1 Cal.5th at p. 711, fn. omitted.) 16
"To demonstrate that an out-of-court declaration is admissible as a declaration against interest, '[t]he proponent of such evidence must show that the declarant is unavailable, that the declaration was against the declarant's penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.' [Citation.] 'In determining whether a statement is truly against interest within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy to be admissible, the court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant.' [Citation.]" (Grimes, supra, 1 Cal.5th at p. 711.) In addition, the court considers the statement "in context." (Id. at p. 716.)
Here, the primary basis for the trial court's ruling that Marvin's statements to Doe did not qualify as declarations against interest was its finding that Marvin "more likely" made the statements while "bragging to his fellow gang members about doing this murder by himself in order to gain street credibility," implicitly determining that the statements were not sufficiently trustworthy to warrant admission. Defendant contends that the court's finding that Marvin made the statements to enhance his standing in the gang is not supported by substantial evidence because Marvin "more or less passive[ly] acknowledge[d]" Hernandez's statements and that, in any event, the boastful nature of the statements does not undermine their inculpatory character. 17
Defendant asserts that in ruling on the statements' admissibility, the trial court divided Marvin's statements into two parts-one where he admitted the murder and another where he exculpated defendant. We read the record differently. We determine that the court ruled that Marvin's statements to Doe were inadmissible in their entirety because they were untrustworthy as Marvin was likely bragging to gain street credibility. And that the court alternatively ruled, "However, for appellate [re]view, assuming this court is incorrect in her analysis, the court further finds that Marvin's statement that defendant . . . did nothing is clearly not a statement against penal interest[]." (Italics added.)
We conclude that there is sufficient evidence to support the trial court's implicit finding that Marvin's statements (or nonverbal agreement) that he committed the stabbing and that defendant did not do anything and was solely in custody because he had blood on his shoes were untrustworthy. According to Doe, Marvin's commission of the murder and subsequent silence" 'sealed the deal for him to become an SJG member.'" It" 'look[ed] really good, '" and Marvin did not have to get jumped into the gang. Doe even recognized that" 'if the other guy had did something . . . and [Marvin] didn't want him to take credit for it . . . he would've said yeah the dude didn't do nothing, '" and said that" '[n]o one's talked to the other guy.'" Under Grimes, it was proper for the court to consider" 'the possible motivation of the declarant'" and" 'the circumstances under which [the statements] were uttered.'" (Grimes, supra, 1 Cal.5th at p. 711.)
Defendant argues that the presence of motive for the statements' utterance does not preclude application of the hearsay exception as every declarant in this situation has, "for some reason, . . . overcome the inhibitions dictated by his penal interests . . . to . . . make the inculpatory declaration." Certainly, but defendant's argument overlooks that not all motivations undermine a statement's trustworthiness. For example, a declarant might tell a confidant something against his penal interest to alleviate his troubled conscience. Such a motivation would likely increase a statement's reliability, rather than diminish it. Indeed, "[t]he focus of the declaration against interest exception to the hearsay rule is the basic trustworthiness of the declaration." (People v. Frierson (1991) 53 Cal.3d 730, 745 (Frierson).)
Defendant points to People v. Arceo (2011) 195 Cal.App.4th 556, 576-578 and People v. Arauz (2012) 210 Cal.App.4th 1394, 1400-1401 as examples of cases where the Courts of Appeal upheld the admission of various hearsay statements under the declaration against interest hearsay exception despite that the statements were made by gang members who were bragging to other gang members about their commission of various crimes. However, neither of those cases involved the situation we have here, 18 where a young, aspiring gang member, in the presence of his recruiter who was also one the gang's leaders, took sole credit for the crime and for remaining silent, thereby gaining admission to the gang and making it" 'look[] really good'" for himself and the recruiter. "[S]ometimes a declarant who makes an inculpatory statement may have a substantial incentive to exculpate others." (Grimes, supra, 11 Cal.5th at p. 716.)" 'The decision whether trustworthiness is present requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception.'" (Frierson, supra, 53 Cal.3d at p. 745.)
Moreover, we observe that the trustworthiness of Marvin's statements was also undermined by the evidence that defendant had Maynard's blood not just on his shoes, but on the right shin, front right and left thigh-knee areas, and crotch area of his jeans. This evidence, combined with the assistant medical examiner's testimony that while there could have been small spurts of blood from Maynard's injuries, she would have expected the blood to drain slowly from Maynard's body, casts significant doubt on Marvin's statement that defendant" 'didn't do anything.' "
In addition, some of the proffered statements are at odds with the eyewitnesses' testimony. For example, Hernandez or Marvin told Doe that" 'a group of . . . the 3rdgeneration . . . basically walked over to the guy'" and" 'surrounded [him]'" and Marvin" 'stuck [him] until he fell. [¶] . . . [¶] And then . . . basically they, they did it like that and they all walked away. [¶] . . . [¶] [P]retty much in the same way that they walked over in a group they walked away.'" This differs from the eyewitnesses' testimony that described the group chasing Maynard through the park and then repeatedly striking him once he was on the ground. And, Marvin's claims that he kept his mouth shut while in custody were untrue, as he told the police at some point that he was a percipient witness to the attack. 19
For these reasons, we conclude that the trial court did not exercise its discretion"' "in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice" '" when it determined that Marvin's statements to Doe did not constitute declarations against interest as Marvin more likely made the statements to increase his street credibility. (Bryant, supra, 60 Cal.4th at p. 390.)
Accordingly, we do not reach the trial court's alternate ruling that Marvin's exculpation of defendant did not constitute a declaration against interest. (See People v. Zapien (1993) 4 Cal.4th 929, 976.)
5. Doe's Statements to Law Enforcement
Defendant concedes that there is no hearsay exception that applies to Doe's statements to law enforcement. Relying primarily on Chambers and Kubsch, defendant contends that his due process right to present a defense required the trial court to allow the evidence because it was essential to his defense, he was charged with murder, the evidence was reliable, and the hearsay rule operated in an arbitrary manner here as the prosecution could use Doe's statements in a future prosecution against Marvin if it granted Doe immunity.
a. Chambers
The defendant in Chambers was convicted of murdering a police officer despite that someone else, Gable McDonald, had signed a written confession sworn under oath and had orally confessed to several people that he had committed the murder. (Chambers, supra, 410 U.S. at pp. 285, 287-288, 292-293.) Mississippi recognized a hearsay exception only for declarations against pecuniary interest, not penal (id. at p. 299), and barred a party from impeaching its own witness, even if adverse (id. at p. 295). "As a consequence of the combination of Mississippi's 'party witness' or 'voucher' rule and its hearsay rule, [the defendant] was unable either to cross-examine McDonald or to present witnesses in his own behalf who would have discredited McDonald's repudiation [of his confession] and demonstrated his complicity." (Id. at p. 294; see id. at p. 295.) 20 The United States Supreme Court concluded that "the exclusion of . . . critical [hearsay] evidence, coupled with the State's refusal to permit [the defendant] to cross-examine McDonald, denied him a trial in accord with traditional and fundamental standards of due process." (Id. at p. 302.)
Importantly, the Supreme Court found that "[t]he hearsay statements involved in th[e] case were originally made and subsequently offered at trial under circumstances that provided considerable assurance of their reliability." (Chambers, supra, 410 U.S. at p. 300.) McDonald confessed spontaneously to close acquaintances shortly after the murder and the confessions were corroborated by other evidence. (Ibid.) Moreover, "[t]he sheer number of independent confessions provided additional corroboration for each," and each confession was "in a very real sense self-incriminatory and unquestionably against interest," as McDonald "stood to benefit nothing." (Id. at pp. 300 & 301.) "Finally, if there was any question about the truthfulness of the extrajudicial statements, McDonald was present in the courtroom and was under oath. He could have been cross-examined by the State, and his demeanor and responses weighed by the jury." (Id. at p. 301.)
The Supreme Court subsequently observed in a plurality decision that "Chambers was an exercise in highly case-specific error correction. . . . [T]he holding of Chambers-if one can be discerned from such a fact-intensive case-is certainly not that a defendant is denied 'a fair opportunity to defend against the State's accusations' whenever 'critical evidence' favorable to him is excluded, but rather that erroneous evidentiary rulings can, in combination, rise to the level of a due process violation." (Montana v. Egelhoff (1996) 518 U.S. 37, 52-53 (Egelhoff); see also United States v. Scheffer (1998) 523 U.S. 303, 316 (Scheffer) [Chambers "does not stand for the proposition that the accused is denied a fair opportunity to defend himself whenever a state or federal rule excludes favorable evidence"].) And the California Supreme Court has observed that Chambers "established no new principles of constitutional law, nor did 21 its holding' "signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures."' [Citations.] The general rule remains that' "the ordinary rules of evidence do not impermissibly infringe on the accused's [constitutional] right to present a defense. Courts retain . . . a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice."' [Citations.]" (People v. Lawley (2002) 27 Cal.4th 102, 154-155, fn. omitted (Lawley).)
b. Kubsch
In Kubsch, the Seventh Circuit Court of Appeals held that the exclusion of a recorded interview violated the due process clause. (Kubsch, supra, 838 F.3d at p. 862.) There, a nine year old was interviewed by the police four days after the charged murders. (Id. at p. 850.) The girl stated that she saw two of the murder victims alive sometime between 3:30 and 3:45 p.m., which contradicted the prosecution's theory that the defendant committed the murders sometime between 1:53 and 2:51 p.m., given the cell phone records that placed the defendant in his car driving from around 3:15 to 4:47 p.m. (Id. at pp. 848-851.)
The defendant attempted to introduce the girl's interview statements under Indiana's recorded recollection hearsay exception, but was unsuccessful because the girl, then age 16, testified that she had no memory of seeing the victims on the afternoon of the murders or of being interviewed by the police several days later. (Kubsch, supra, 838 F.3d at p. 853.) Thus, she could not" 'vouch for the accuracy of the prior statement, '" which was the exception's only unmet foundational requirement. (Ibid.)
The Seventh Circuit found the case exceedingly similar to Chambers, in part because the excluded evidence was "unusually reliable." (Kubsch, supra, 838 F.3d at p. 860.) The court noted that the girl's veracity was unquestioned, the statements pertained to the girl's firsthand perception, and the statements were made just days after 22 the murders. (Id. at pp. 860-861.) Moreover, the girl's mother provided details that corroborated the statements. (Id. at p. 850.)
c. Analysis
Here, in contrast to Chambers, we have not found a "combination" of "erroneous evidentiary rulings" pertaining to defendant's proffered double-hearsay evidence. (Egelhoff, supra, 518 U.S. at p. 53.) As we explained above, the trial court did not abuse its discretion when it implicitly found that Marvin's statements to Doe were inadmissible as declarations against interest because they were untrustworthy. And as defendant concedes, there is no hearsay exception for Doe's statements to law enforcement about what Marvin told him.
Moreover, unlike in both Chambers and Kubsch, the excluded evidence consisted of double hearsay that at neither level bore assurances of trustworthiness. Rather, both declarants in this case had motives that diminished the statements' reliability-namely, Marvin's desire to become an SJG member and Doe's desire for release. In addition, there was an 18-month delay between when the murder occurred and when Marvin made the statements to Doe, which included a 5-month delay between Marvin's release from custody and his statements. Marvin and Doe were using drugs when they conversed and Doe was "coming down from drugs" when he first talked to the police, facts that Doe did not disclose during his initial interview. And some of the physical evidence, namely, Maynard's blood on several areas of defendant's jeans, including the crotch, belied Marvin's statements that defendant did not do anything. Perhaps most importantly, unlike in both Chambers and Kubsch, neither Marvin nor Doe-that is, the declarant at each hearsay level of the excluded evidence-was available to testify. (Contra Chambers, supra, 410 U.S. at pp. 290-291; Kubsch, supra, 838 F.3d at p. 853.) 23
We note that Kubsch is not binding on this court. (See Raven v. Deukmejian (1990) 52 Cal.3d 336, 352 ["Decisions of the lower federal courts interpreting federal law, though persuasive, are not binding on state courts"].)
Defendant argues that Doe's statements to law enforcement bore assurances of trustworthiness as "[t]he only thing missing" for the statements to be admissible as past recollections recorded under Evidence Code section 1237 "was Doe's testimonial affirmation that his statement[s] [were] true." (See Chambers, supra, 410 U.S. at p. 302 [observing that the excluded evidence "bore persuasive assurances of trustworthiness and thus was well within the basic rationale of the exception for declarations against interest"].) We find otherwise.
" 'Evidence Code section 1237 permits evidence of a witness's past statement "if the statement would have been admissible if made by him [or her] while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him [or her] to testify fully and accurately, and the statement is contained in a writing [or recording] which: [¶] (1) [w]as made at a time when the fact recorded . . . actually occurred or was fresh in the witness'[s] memory; [¶] (2) [w]as made . . . (ii) by some other person for the purpose of recording the witness'[s] statement at the time it was made; [¶] (3) [i]s offered after the witness testifies that the statement he [or she] made was a true statement of such fact; and [¶] (4) [i]s offered after the writing [or recording] is authenticated as an accurate record of the statement." [Citation.]' [Citation.]" (People v. Sanchez (2019) 7 Cal.5th 14, 41; see also People v. Cowan (2010) 50 Cal.4th 401, 465-466 (Cowan).)
Beyond Doe's unavailability to testify that the statements he made to law enforcement were "a true statement of such fact" (Evid. Code, § 1237, subd. (a)(3)), there is no evidence that Doe "ha[d] insufficient present recollection to enable him to testify fully and accurately" (id., subd. (a)) and scant evidence that Doe made the statements to law enforcement when the conversation with Marvin and Hernandez was "fresh in [his] memory" (id., subd. (a)(1); cf. Cowan, supra, 50 Cal.4th at p. 466 [declarant's detailed description provided sufficient basis for finding that the events were reasonably fresh in the declarant's mind]). Further, Doe's unavailability to attest to the statements' truth is 24 significant." '[W]hether an adequate foundation for admission' of a statement under Evidence Code section 1237 has been established turns on whether the declarant's 'testimony that [the] statement was true was reliable.'" (Cowan, supra, at p. 467.) Thus, unlike in Chambers where the proffered evidence "was well within the basic rationale of the exception for declarations against interest" (Chambers, supra, 402 U.S. at p. 302), the hearsay proffered here did not meet several foundational requirements of the past recollection recorded exception, including the requirement that the analysis "turns on" and is meant to ensure the hearsay's reliability (Cowan, supra, at p. 467).
"Few rights are more fundamental than that of an accused to present [evidence] in his own defense. [Citations.]" (Chambers, supra, 410 U.S. at p. 302.) However, "[i]n the exercise of this right, the accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence." (Ibid.) "[S]tate and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. Such rules do not abridge an accused's right to present a defense so long as they are not 'arbitrary' or 'disproportionate to the purposes they are designed to serve.'" (Scheffer, supra, 523 U.S. at p. 308.)
Lastly, defendant argues that the application of the hearsay rule to bar Doe's statements was arbitrary as "Doe's evidence was available to the prosecution to use against [Marvin] if the authorities decided to revive the prosecution [against him]," and "[t]he prosecution was further in control of any Fifth Amendment impediment by a grant of immunity." (See Kubsch, supra, 838 F.3d at p. 858 [stating that "[a]rbitrariness might be shown by a lack of parity between the prosecution and the defense"].) However, "prosecutors are not under a general obligation to provide immunity to witnesses in order to assist a defendant." (People v. Williams (2008) 43 Cal.4th 584, 622.) Moreover, that the prosecution might be able to use Marvin's statements to Doe in a future prosecution against Marvin does not demonstrate a lack of parity between the 25 prosecution and defendant here. Even if the prosecution provided Doe immunity in a trial against Marvin, it would still have to establish the foundational requirements of a hearsay exception for Doe's statements to law enforcement to be admissible. And there is no evidence that the prosecution was willing to grant Doe immunity, such that the prosecution "regard[ed] [the] evidence as reliable enough for the prosecution, but not for the defense." (Kubsch, supra, at p. 858.)
For all of these reasons, we conclude that the exclusion of Doe's interviews with law enforcement, where he discussed Marvin's statements to him, did not violate defendant's right to present a defense and that the trial court's exclusion of the evidence was not an abuse of discretion.
B. Our Review of the Sealed Record of the Ex Parte Hearing
Defendant requests that we review the sealed record of an ex parte hearing held pursuant to section 1054.7, where, based on its knowledge that Doe planned to invoke his Fifth Amendment privilege against self-incrimination, the prosecution presented information regarding Doe's unadjudicated criminal conduct. Section 1054.7 mandates that discovery disclosures be made at least 30 days before trial unless good cause is shown. As relevant here, the statute further provides, "Upon the request of any party, the court may permit a showing of good cause for the denial or regulation of disclosures, or any portion of that showing, to be made in camera. . . . If the court enters an order granting relief following a showing in camera, the entire record of the showing shall be sealed and preserved in the records of the court, and shall be made available to an appellate court in the event of an appeal or writ." (§ 1054.7.)
Defendant requests that we review the sealed record of the ex parte section 1054.7 hearing "with a general view to [his] right to counsel both below and on appeal (U.S. Const., Amend. 6; Cal. Const., art. I, § 15), and to [his] right to due process (U.S. Const., Amend. 14; Cal. Const., art. I, § 7(a).)." Defendant identifies three possible issues related to the proceeding: (1) whether the ex parte hearing was authorized under section 1054.7; (2) 26 whether the trial court appropriately rejected defendant's request that Doe be granted judicial use immunity; and (3) whether, had defendant been present at the hearing and privy to the information presented, he may have successfully claimed that the prosecution's impeachment of Doe with the unadjudicated conduct should be excluded under Evidence Code section 352. Defendant states that he cannot elaborate on the possible issues or properly present them as claims here because the record remains sealed and that there may be other issues stemming from the ex parte hearing. The Attorney General has no objection to our review of the sealed record.
We decline to unseal the record on our own motion. (See Cal. Rules of Court, rule 8.46(f)(3), (5).)
Because the proceedings are interrelated, we have carefully reviewed both the sealed transcript of the ex parte section 1054.7 hearing and the sealed transcript of an in camera hearing on Doe's invocation of his Fifth Amendment privilege against self-incrimination. We determine that even assuming that it was error for the trial court to hold the ex parte section 1054.7 hearing, any error was harmless under the state and federal prejudice standards. (See People v. Valdez (2012) 55 Cal.4th 82, 125 (Valdez).)
1. Trial Court Proceedings
Defendant stated in a motion in limine that he intended to call Doe as a witness but that he anticipated Doe would attempt to invoke his Fifth Amendment privilege against self-incrimination. Defendant moved the court to deny Doe's invocation of his Fifth Amendment privilege and to compel Doe to testify.
Aware that defendant sought to call Doe as a witness but that Doe planned to invoke his Fifth Amendment privilege against self-incrimination, the prosecution moved in limine for an ex parte in camera hearing pursuant to section 1054.7. The prosecution asserted that it was aware of uncharged gang-related crimes committed by Doe and that while it was not opposed to Doe testifying, it expected Doe to incriminate himself by admitting gang membership and the commission of uncharged crimes involving moral 27 turpitude. The prosecution stated that it brought the section 1054.7 motion "so the court can make a fully informed decision in determining whether . . . Doe has a valid Fifth Amendment privilege, while also to maintain the integrity of an ongoing criminal investigation. The presence of defense counsel at any hearing discussing uncharged crimes involving . . . Doe would compromise an ongoing criminal investigation."
Defendant moved in limine for defense counsel to attend the section 1054.7 hearing in defendant's absence. Defendant asserted that his Fifth and Sixth Amendment rights to due process and the effective assistance of counsel mandated that "at the very least" counsel be permitted to attend the hearing.
At the hearing on the motions, defendant argued that section 1054.7 did not apply to the requested ex parte hearing because the hearing would not pertain to discovery but to Doe's anticipated invocation of his Fifth Amendment privilege. Defendant reiterated his request that his counsel be present at the hearing.
The prosecution acknowledged that it was requesting the hearing in response to defendant's opposition to Doe's anticipated invocation of his Fifth Amendment privilege. The prosecution asserted that it was aware of evidence that Doe had committed crimes and that his testimony would be used against him in future prosecutions, and that it wanted the hearing to "give the court context" regarding Doe's anticipated invocation. The prosecution conceded, "[T]his isn't a discovery issue" or "a discovery obligation." The prosecution stated that even if the court rejected Doe's Fifth Amendment claim, it would ask the court for an ex parte hearing under section 1054.7 for a determination of whether the uncharged crimes evidence could be used to impeach Doe. Defense counsel responded that an ex parte hearing to inform the court of information relevant to the validity of Doe's Fifth Amendment invocation would violate defendant's right to counsel.
The trial court granted the prosecution's motion for an ex parte in camera hearing pursuant to section 1054.7 and denied defense counsel's motion to be present. The court conducted the ex parte section 1054.7 hearing on September 5, 2018. 28
On September 6, 2018, the court held an Evidence Code section 402 hearing where defendant called Doe as a witness. Doe refused to answer any questions pertaining to defendant, Hernandez, Marvin, Maynard's murder, or his cooperation with the prosecution, invoking his Fifth Amendment privilege against self-incrimination.
The court suggested that it hold an in camera hearing with Doe's counsel regarding Doe's invocation. Defense counsel stated that an in camera hearing with Doe and Doe's counsel that excluded the parties was "a correct way to proceed." Doe's counsel objected to Doe's presence at the in camera hearing.
Later on September 6, 2018, the court held an in camera hearing solely with Doe's counsel, where the court asked Doe's counsel defendant's proposed questions of Doe.After the hearing, and over defendant's objection, the court ruled that Doe did not have to answer most of defendant's questions based on the valid invocation of his Fifth Amendment privilege against self-incrimination and the attorney-client privilege. The court allowed defendant to question Doe regarding whether the prosecution communicated with him after his interview with the district attorney investigators.
The record of the in camera hearing on Doe's Fifth Amendment invocation is also sealed.
Regarding the in camera hearings and Doe's Fifth Amendment privilege, the court stated: "[W]ith respect to [the section] 1054.7 hearing, the court . . . did not find the[re] was anything exculpatory that [the prosecution] had to disclose. [¶] And [the court] believe[s], based on the representations and the testimony made, that [Doe] has a Fifth Amendment right both state and federally. [¶] In my in-camera hearing with [Doe's counsel], [the court] also believe[s] that [Doe], based upon the representations, that [Doe] has a Fifth Amendment right, both state and federally." The court denied defendant's request that it grant Doe immunity against future prosecutions, stating that it did not have jurisdiction to immunize Doe from a federal prosecution. 29
Defendant later argued in response to the prosecution's motion to exclude Doe's law enforcement interviews on hearsay grounds that he could not develop the record regarding Marvin's statements to Doe based on Doe's invocation of his Fifth Amendment privilege against self-incrimination. Doe did not testify at trial and, as we stated above, the court excluded Doe's law enforcement interviews as inadmissible double hearsay.
2. Legal Principles
"A criminal defendant has the right under the state and federal Constitutions to be personally present and represented by counsel at all critical stages of the trial. For purposes of the right to be present, a critical stage is 'one in which a defendant's" 'absence might frustrate the fairness of the proceedings' [citation], or 'whenever his [or her] presence has a relation, reasonably substantial, to the fullness of his [or her] opportunity to defend against the charge.'"' [Citation.] As to the right to counsel, a critical stage is one 'in which the substantial rights of a defendant are at stake' [citation], and 'the presence of his [or her] counsel is necessary to preserve the defendant's basic right to a fair trial' [citation]." (Bryant, supra, 60 Cal.4th at p. 465.)
"As a general matter, ex parte proceedings are disfavored" because they typically suffer from" 'a shortage of factual and legal contentions. Not only are facts and law from the defendant lacking, but the moving party's own presentation is often abbreviated because no challenge from the defendant is anticipated at this point in the proceeding. The deficiency is frequently crucial, as reasonably adequate factual and legal contentions from diverse perspectives can be essential to the court's initial decision . . . .'" (People v. Ayala (2000) 24 Cal.4th 243, 262 (Ayala).) "Nevertheless, as a general rule, a trial court has discretion to conduct a proceeding in a defendant's absence 'to protect an overriding interest that favors confidentiality.' [Citations.]" (People v. Thompson (2016) 1 Cal.5th 1043, 1098 (Thompson) [pertaining to the trial court's exclusion of the defendant and her counsel from discovery hearings]; see also People v. Gurule (2002) 28 Cal.4th 557, 592-594 [in camera review of a witness's psychiatric records for 30 information protected by the attorney-client privilege]; Lawley, supra, 27 Cal.4th at p. 159 [in camera hearing regarding the nondisclosure of a confidential informant's identity]; Ayala, supra, at pp. 261-262 [ex parte proceedings regarding trial strategy may be appropriate].)
"[W]here a court errs in proceeding ex parte, the error is not reversible per se." (Valdez, supra, 55 Cal.4th at p. 125.) "Such error . . . 'whether or not of federal constitutional dimension,' 'is not structural; it is an error in the conduct of the trial that requires us to consider the record.'" (Ibid. [finding the trial court's error in holding an ex parte section 1054.7 hearing harmless under both the state and federal prejudice standards].)
3. Analysis
As we stated above, section 1054.7 pertains to discovery, requiring that it be disclosed at least 30 days before trial unless good cause is shown. Any party may request to make the good cause showing in camera (§ 1054.7), and "[s]ection 1054.7 contains no express prohibition on ex parte hearings" (Thompson, supra, 1 Cal.5th at p. 1099). Moreover, a court generally" 'has inherent discretion to conduct [ex parte] hearings to determine objections to disclosure based on asserted privileges.'" (Bryant, supra, 60 Cal.4th at p. 466.)
Here, however, the prosecution conceded that its request for the ex parte section 1054.7 hearing "isn't a discovery issue" or "a discovery obligation." Nor had defendant moved to compel the prosecution's disclosure of the unadjudicated criminal conduct that was the subject of the hearing. Rather, the prosecution sought the ex parte hearing to impart information to the trial court "so the court c[ould] make a fully informed decision in determining whether . . . Doe has a valid Fifth Amendment privilege, while also to maintain the integrity of an ongoing criminal investigation."
It was Doe's burden, not the prosecution's, to establish that he had a Fifth Amendment privilege against self-incrimination regarding defendant's questions. "The 31 Fifth Amendment privilege against compulsory self-incrimination is an 'intimate and personal one.'" (United States v. Nobles (1975) 422 U.S. 225, 233.)" '[T]he person claiming the privilege has the burden of showing that the proffered evidence might tend to incriminate him [or her]; and the proffered evidence is inadmissible unless it clearly appears to the court that the proffered evidence cannot possibly have a tendency to incriminate the person claiming the privilege.' [Citation.]" (People v. Seijas (2005) 36 Cal.4th 291, 305, italics omitted; see also Evid. Code, § 940.) "The privilege afforded not only extends to answers that would in themselves support a conviction . . . but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a . . . crime. [Citation.] But this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer." (Hoffman v. United States (1951) 341 U.S. 479, 486 (Hoffman), italics added.)
We will therefore assume that the ex parte hearing was not authorized under section 1054.7 as it did not pertain to discovery disclosures. As for whether holding the hearing in defendant's and defense counsel's absence violated defendant's constitutional rights, we observe that the trial court found, independent of the information presented at the ex parte section 1054.7 hearing, that Doe had a Fifth Amendment privilege against self-incrimination. Nor was the information presented at the ex parte hearing raised or used against defendant at trial. Thus, the ex parte proceeding does not appear to have been a "critical stage[] of the trial," such that defendant's"' "absence . . . frustrate[d] the fairness of the proceedings' [citation]," '" or had" '" 'a relation, reasonably substantial, to the fullness of his [or her] opportunity to defend against the charge.'" '" (Bryant, supra, 60 Cal.4th at p. 465.) For the same reasons, regarding defense counsel's absence, it does not appear that the ex parte section 1054.7 involved or impacted defendant's" 'substantial rights'" or that" 'the presence of [defense] counsel [was] necessary to preserve . . . defendant's basic right to a fair trial' [citation]." (Bryant, supra, at p. 465.) 32
However, even if the ex parte section 1054.7 hearing constituted both state law and federal constitutional error, we conclude based on our careful review of the sealed transcripts of the ex parte section 1054.7 hearing and the in camera hearing on Doe's Fifth Amendment privilege that any error in proceeding ex parte was harmless because neither defendant's nor defense counsel's presence at the section 1054.7 hearing would have enabled defendant to "argue[] anything substantial that would have changed the [trial] court's rulings." (Valdez, supra, 55 Cal.4th at p. 128.)
In Valdez, the trial court held several ex parte hearings pursuant to section 1054.7 regarding the nondisclosure of witnesses' identities. (Valdez, supra, 55 Cal.4th at p. 121.) Defendant argued on appeal that the hearings were unauthorized under section 1054.7 and violated his state and federal constitutional rights, including his right to counsel and to due process. (Valdez, supra, at p. 121.) The California Supreme Court determined that "any error in proceeding ex parte was harmless, whether [it] appl[ied] the test for state law error or for error under the federal Constitution." (Id. at p. 126.)
Included in the reasons for the court's finding of harmlessness was that "neither defendant nor his counsel could have argued anything substantial that would have changed the [trial] court's rulings." (Valdez, supra, 55 Cal.4th at p. 128.) The court observed that despite presently "knowing the witnesses' identities and having access to the transcripts of the ex parte hearings, defendant suggests no way in which he could have undermined the prosecution's substantial showing or affected the court's rulings." (Ibid.)
Here, defendant had the information necessary to object to the ex parte hearing on the basis that it was unauthorized under section 1054.7 and violated his rights to counsel and to due process, and he did so below. Defendant knew that the hearing was requested by the prosecution "so the court c[ould] make a fully informed decision in determining whether . . . Doe ha[d] a valid Fifth Amendment privilege, while also to maintain the integrity of an ongoing criminal investigation," rather than regarding a discovery 33 disclosure, and that the hearing pertained to Doe's unadjudicated criminal conduct involving moral turpitude. Having access to the information presented at the ex parte hearing would not have aided his arguments on those claims or changed the trial court's rulings. (See Valdez, supra, 55 Cal.4th at p. 128.)
Moreover, even if defendant had not been excluded from the section 1054.7 hearing, he could not have "argued anything substantial that would have changed the [trial] court's ruling[]" regarding Doe's invocation of his Fifth Amendment privilege. (Valdez, supra, 55 Cal.4th at p. 128.) "It is clear from this record" that the representations made during the in camera hearing with Doe's counsel "amply supported" the court's determination that Doe had a Fifth Amendment privilege against self-incrimination regarding defendant's questions. (Valdez, supra, at p. 128.)
The same holds true for the trial court's denial of defendant's request that the court grant Doe immunity. Citing Nelson v. Superior Court (1972) 28 Cal.App.3d 889, 894-895 (Nelson), defendant asserts that "[a]lthough a state grant of use immunity [would] not bind federal courts or prosecutors, the Fifth Amendment itself [would] prevent[] the derivative use of involuntary statements made under these conditions." (Italics added.)
But Nelson pertains to transactional immunity granted pursuant to section 1324, not use immunity. (Nelson, supra, 28 Cal.App.3d at p. 892.) Transactional immunity under section 1324 broadly bars prosecution "for any act" about which the witness was compelled to testify. (People v. Cooke (1993) 16 Cal.App.4th 1361, 1366 (Cooke).) "It is settled in California that the granting of transactional immunity is conditioned upon a written request by the prosecutor that the witness be compelled to answer." (People v. Hunter (1989) 49 Cal.3d 957, 973; see also Evid. Code, § 1324.) There was no such request from the prosecution here, and "it is not within the court's power to grant statutory transactional immunity to any witness." (Cooke, supra, at p. 1367.)
Use immunity, on the other hand, "does not afford protection against prosecution, but merely prevents a prosecutor from using the immunized testimony against the 34 witness." (Cooke, supra, 16 Cal.App.4th at p. 1366.) In People v. Masters (2016) 62 Cal.4th 1019, 1051, the California Supreme Court held that "California courts have no authority to confer use immunity on witnesses."
Thus, because the prosecution did not request that Doe be granted transactional immunity and the trial court did not have the authority to grant Doe use immunity, defendant's presence at the ex parte section 1054.7 hearing would not have enabled him to "argue[] anything substantial that would have changed the [trial] court's ruling[]." (Valdez, supra, 55 Cal.4th at p. 128.)
Defendant asserts that "[e]ven without a grant of judicial [use] immunity, Evidence Code section 352 could [have] be[en] invoked to prevent impeachment of . . . Doe by any unadjudicated conduct for which he had a Fifth Amendment right against self-incrimination." Defendant states that his Evidence Code section 352 claim below "could have been . . . meritorious . . . in light of [the] adjudicated felony convictions available to impeach Doe," but that an argument regarding the evidence's probative value versus its prejudicial effect requires him to know what the conduct is.
In his in limine motion for the court to deny Doe's invocation of his Fifth Amendment privilege and to compel Doe to testify, defendant argued that Doe had at least 10 felony convictions involving crimes of moral turpitude on which he could be impeached, "such that there will be no need to allow the prosecutor to cross-examine [Doe] about unadjudicated felony conduct." Defendant requested that the court "craft an equitable solution . . . by relying on Evidence Code [section] 352 and the Due Process Clause . . . to exclude [Doe's] impeachment" with the unadjudicated conduct.
However, the trial court ruled that Doe had a Fifth Amendment privilege to refuse to answer defendant's questions regarding Doe's knowledge of defendant, Hernandez, and Marvin and his perception of Marvin's statements regarding Maynard's murder. Even if defendant had been present at the section 1054.7 hearing such that he were able to persuade the trial court that the unadjudicated conduct should be excluded pursuant to 35 Evidence Code section 352, the exclusion of the unadjudicated conduct would have had no effect on the validity of Doe's invocation of his privilege against self-incrimination regarding defendant's questions as Doe had "reasonable cause to apprehend danger from a direct answer." (Hoffman, supra, 341 U.S. at p. 486.)
In sum, we have carefully reviewed the sealed transcript of the ex parte hearing held pursuant to section 1054.7. We conclude that defendant's absence and the absence of counsel did not prejudice defendant. Even if defendant or his counsel had been present at the hearing, defendant could not have "argued anything substantial that would have changed the [trial] court's ruling[]." (Valdez, supra, 55 Cal.4th at p. 128.) Independent of the section 1054.7 hearing, the record "amply support[s]" the court's determination that Doe had a Fifth Amendment privilege against self-incrimination regarding defendant's questions. (Valdez, supra, at p. 128.)
C. Sufficiency of the Evidence of First Degree Murder
Relying largely on People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson), defendant contends that there is insufficient evidence to uphold the jury's finding of premeditation and deliberation. The Attorney General counters that the manner of killing, evidence of planning, and gang motive provide substantial evidence in support of the jury's verdict. We conclude that sufficient evidence supports the jury's finding.
1. Legal Principles and Standard of Review
"First degree murder, like second degree murder, is the unlawful killing of a human being with malice aforethought, but has the additional elements of willfulness, premeditation, and deliberation which trigger a heightened penalty. [Citation.] That mental state is uniquely subjective and personal. It requires more than a showing of intent to kill; the killer must act deliberately, carefully weighing the considerations for and against a choice to kill before he or she completes the acts that caused the death. [Citations.]" (People v. Chiu (2014) 59 Cal.4th 155, 166, superceded by statute on other grounds.) 36
"' "Deliberation" refers to careful weighing of considerations in forming a course of action; "premeditation" means thought over in advance. [Citations.]'" (People v. Solomon (2010) 49 Cal.4th 792, 812 (Solomon).) In other words, "the intent to kill must be formed upon a preexisting reflection and have been the subject of actual deliberation or forethought." (People v. Whisenhunt (2008) 44 Cal.4th 174, 201.)"' "Premeditation and deliberation can occur in a brief interval. 'The test is not time, but reflection. "Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly." '" [Citation.]' [Citations.]" (Solomon, supra, at p. 812.)
In Anderson, the California Supreme Court identified three factors typically present in cases of premeditated murder: "(1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing-what may be characterized as 'planning' activity; (2) facts about the defendant's prior relationship and/or conduct with the victim from which the jury could reasonably infer a 'motive' to kill the victim . . .; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a 'preconceived design' to take his victim's life in a particular way . . . ." (Anderson, supra, 70 Cal.2d at pp. 26-27.) The court has subsequently cautioned, however, that"' "Anderson does not require that these factors be present in some special combination or that they be accorded a particular weight, nor is the list exhaustive. Anderson was simply intended to guide an appellate court's assessment whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse. [Citation.]"' [Citation.]" (People v. Steele (2002) 27 Cal.4th 1230, 1249 (Steele).)
In determining a sufficiency of the evidence claim, "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which 37 a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 60.)
2. Analysis
Considering the record as a whole in the light most favorable to the judgment, we determine that there is sufficient evidence for a reasonable jury to find that defendant killed Maynard"' "as the result of preexisting reflection rather than unconsidered or rash impulse." '" (Steele, supra, 27 Cal.4th at p. 1249.)
The evidence established that defendant and two to four others chased Maynard across a park. When Maynard fell upon reaching the street, the group punched, kicked, stomped on, cut, and stabbed him. Despite an eyewitness deliveryman's calls for the group to leave Maynard alone, the group persisted. The deliveryman ran to get his partner, and only when both deliverymen got back to the scene and yelled at the group to leave did the attackers stop assaulting Maynard and flee.
Maynard was cut seven times on his head and neck, stabbed three times on his back, and stabbed four times on his left leg. One of the stab wounds injured Maynard's lung, diaphragm, and liver. An over five-inch-long incised wound ran from Maynard's eyebrow to the back of his head.
The jury could reasonably infer from this evidence that defendant did not merely want to injure Maynard; "he wanted to make certain [Maynard] died." (People v. Bolin (1998) 18 Cal.4th 297, 332.) The manner of killing-multiple stab and incised wounds inflicted on a man who had been chased by a group of assailants through a park-"is 38 entirely consistent with a premeditated and deliberate murder." (People v. Silva (2001) 25 Cal.4th 345, 369.)
Defendant correctly observes that Maynard had contusions on his hands, supporting a reasonable inference that he fought back. But although the injuries to Maynard's hands suggest that he was not entirely defenseless, he was unquestionably outnumbered and posed little threat to defendant. Beyond the injuries to his hands, Maynard's wounds demonstrate that the group overwhelmed him.
Defendant argues that the stab and incised wounds "from head to knee . . . evinced a random and chaotic group attack," and notes that none of the wounds was individually fatal. While it might be inferred that the attack was chaotic given the number of participants and the varied location of Maynard's wounds, there was evidence from which a reasonable jury could infer that the wounds were delivered deliberately. All seven of the incised wounds were to Maynard's head and neck, a vulnerable area, and two of the wounds entered Maynard's skull. Three of the seven stab wounds were to Maynard's back, with one injuring vital organs. The locations and severity of the wounds support a reasonable inference that defendant made a deliberate and premeditated decision to kill Maynard. Also supporting a reasonable inference that the wounds were delivered deliberately and with premeditation was the precise number of them-14- given the evidence in the record that the perpetrators called out something Norteño-related during the attack. A gang expert explained the significance of the number 14 to Norteños and linked defendant to a Norteño street gang.
In addition, the jury could reasonably infer that the attack was planned "to some extent." (People v. Stitely (2005) 35 Cal.4th 514, 544.) "[P]lanning activity can happen during an altercation itself and 'over a short period of time.'" (People v. Shamblin (2015) 236 Cal.App.4th 1, 13, italics omitted.)"' "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with 39 great rapidity and cold, calculated judgment may be arrived at quickly." '" (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)
As stated, defendant and his cohorts chased Maynard across a park, at least one of the attackers was armed, and stab and incised wounds were inflicted on Maynard during an assault where the perpetrators called out something Norteño-related. The jury could reasonably infer from the combined evidence of the chase, the arming, the significance of the number 14 to Norteños, and the collective severity of the wounds that the group planned to kill Maynard.
The Attorney General argues that the evidence of the perpetrators calling out something Norteño-related, the 14 wounds, and defendant's gang membership provides a reasonable inference that defendant "had a gang-related motive to commit the crime." Although we agree that there was evidence that the attack was gang-related, we do not accept that a gang-related motive necessarily means "a 'motive' to kill the victim." (Anderson, supra, 70 Cal.2d at p. 27, italics added.)
People v. Leon (2010) 181 Cal.App.4th 452 is illustrative. There, the court found a reasonable inference of a motive to kill based on evidence that the defendant and the victim were rival gang members and had previously fought each other; the victim showed disrespect for the rival gang that called for retaliation; and "[t]he more violent the retaliation, the more [the defendant] would raise his status in the gang. [The defendant] would gain maximum prestige and respect by committing a homicide." (Id. at p. 467; see also People v. Romero (2008) 44 Cal.4th 386, 401 [finding inference of gang-related motive to kill based on evidence of gang membership, rivalry, and increased status].) Here, the evidence of gang-relatedness-namely, the Norteño-related reference, the 14 stab and incised wounds, and defendant's gang membership, combined with the gang expert's generic testimony that gang members commit crimes of violence and sometimes announce the name of their gang to take responsibility for a crime and to increase witnesses' fear, does not illustrate a motive, or reason, to kill Maynard. 40
The Attorney General also urges us to find that the jury could reasonably infer that defendant stabbed Maynard. The Attorney General argues that the presence of Maynard's blood on separate areas of defendant's jeans indicates that defendant stabbed Maynard based on the evidence that Maynard's blood would have oozed or flowed from his injuries instead of spurted. The Attorney General also points to evidence showing that defendant changed his shirt and discarded an arm sling as supporting a reasonable inference that defendant stabbed Maynard because the jury could reasonably infer that defendant discarded his shirt and sling as Maynard's blood was on them. The Attorney General further argues that the jury could reasonably infer that defendant was the sole stabber because he "did not have any knife injuries, which he would have sustained in the chaos of a group beating if another knife were used."
On this record, it cannot be determined whether defendant was one of the stabbers (or the sole stabber) based on the blood on his clothes and his lack of knife injuries. There is no evidence in the record showing how the perpetrators were positioned in relation to one another during the attack or what each of the perpetrators was specifically doing, although it can be reasonably inferred that defendant at the very least punched Maynard based on the bruising on defendant's hands and that he was exceedingly close to Maynard given the blood on his clothing. "We may speculate about any number of scenarios that may have occurred on the [day] in question. A reasonable inference, however, 'may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.'" (People v. Morris (1988) 46 Cal.3d 1, 21, disapproved on a different ground in In re Sassounian (1995) 9 Cal.4th 535, 543, fn. 5.)
While the evidence of premeditation and deliberation in this case is not overwhelming, we find it sufficient to sustain the jury's verdict." '[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime 41 beyond a reasonable doubt.'" (People v. Lewis (2009) 46 Cal.4th 1255, 1289-1290.) Here, the manner of killing and the evidence of planning, when combined, provide a reasonable inference that the murder"' "occurred as the result of preexisting reflection rather than unconsidered or rash impulse. [Citation.]"' [Citation.]" (Steele, supra, 27 Cal.4th at p. 1249.)
D. Instructional Error
Defendant contends that the trial court erred when it did not instruct the jury sua sponte on involuntary manslaughter. Defendant argues that involuntary manslaughter instructions were required based on the theory of involuntary manslaughter discussed by Justice Kennard in her concurring opinion in People v. Bryant (2013) 56 Cal.4th 959 and by the Court of Appeal in People v. Brothers (2015) 236 Cal.App.4th 24 (Brothers). The Attorney General asserts that involuntary manslaughter instructions were unwarranted because there was not substantial evidence that defendant killed Maynard without malice. We find no error.
1. Legal Principles and Standard of Review
Section 192, subdivision (b) provides that involuntary manslaughter occurs "in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection."
"Involuntary manslaughter is ordinarily a lesser offense of murder. [Citation.]" (People v. Abilez (2007) 41 Cal.4th 472, 515.) "The elements of murder are an unlawful killing committed with malice aforethought. (§ 187.) The lesser included offense of manslaughter does not include the element of malice, which distinguishes it from the greater offense of murder. [Citation.] One commits involuntary manslaughter either by committing 'an unlawful act, not amounting to a felony' or by committing 'a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.' (§ 192, subd. (b).) If the evidence presents a material issue of whether 42 a killing was committed without malice, and if there is substantial evidence the defendant committed involuntary manslaughter, failing to instruct on involuntary manslaughter would violate the defendant's constitutional right to have the jury determine every material issue. [Citation.] Malice is implied, however, when a killing results from an intentional act, the natural consequences of which are dangerous to human life, and the act is deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. [Citation.]" (People v. Cook (2006) 39 Cal.4th 566, 596 (Cook).)
"' "It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. . . . That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present." '" (People v. Breverman (1998) 19 Cal.4th 142, 154.)" 'Substantial evidence' in this context is' "evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]"' that the lesser offense, but not the greater, was committed. [Citations.]" (Id. at p. 162.)" '[T]he existence of "any evidence, no matter how weak" will not justify instructions on a lesser included offense . . . .' [Citation.]" (People v. DePriest (2007) 42 Cal.4th 1, 50.)
We review de novo a failure to instruct on a lesser included offense. (Cook, supra, 39 Cal.4th at p. 596.)
2. The People v. Bryant and Brothers Decisions
In People v. Bryant, the California Supreme Court considered whether a "killing without malice in the commission of an inherently dangerous assaultive felony" is voluntary manslaughter and concluded that it was not, overturning the Court of Appeal's reversal of the defendant's murder conviction for failing to instruct that it was. (People v. Bryant, supra, 56 Cal.4th at p. 970.) The court "decline[d] to address [the] defendant's alternative contention that, because assault with a deadly weapon is not an inherently 43 dangerous felony, the trial court erred in failing to instruct the jury on the theory of involuntary manslaughter." (Id. at pp. 970-971, italics added.)
In a concurring opinion, Justice Kennard addressed the claim, determining that "a killing without malice committed during an inherently dangerous assaultive felony" is involuntary manslaughter. (People v. Bryant, supra, 56 Cal.4th at p. 971 (conc. opn. of Kennard, J.).) Justice Kennard explained that the phrase," 'not amounting to a felony, '" in section 192, subdivision (b) originated in common law to distinguish involuntary manslaughter from felony murder; it is not an element of the offense. (People v. Bryant, supra, at p. 972 (conc. opn. of Kennard, J.).) Justice Kennard concluded that the Legislature "must have meant that a killing during an unlawful act is involuntary manslaughter unless the unlawful act is the type of felony that turns the killing into the greater crime of [felony] murder." (Id. at p. 973 (conc. opn. of Kennard, J.).) Justice Kennard further determined that because the defendant presented evidence from which the jury could have reasonably concluded that she lacked malice, a jury instruction on involuntary manslaughter as a lesser included offense of the charged murder would have been proper. (Id. at p. 975 (conc. opn. of Kennard, J.).)
Justice Kennard stated that the trial court had no duty to instruct the jury sua sponte that a killing without malice committed during an inherently dangerous assaultive felony was involuntary manslaughter because it constituted "a legal principle that has been so 'obfuscated by infrequent reference and inadequate elucidation' that it cannot be considered a general principle of law." (People v. Bryant, supra, 56 Cal.4th at p. 975 (conc. opn. of Kennard, J.).)
In Brothers, the Court of Appeal concluded that "an instruction on involuntary manslaughter as a lesser included offense must be given when a rational jury could entertain a reasonable doubt that an unlawful killing was accomplished with implied malice during the course of an inherently dangerous assaultive felony." (Brothers, supra, 236 Cal.App.4th at p. 34.) The court reasoned that "if an unlawful killing in the course of an inherently dangerous assaultive felony without malice must be manslaughter [citation] 44 and the offense is not voluntary manslaughter [citation], the necessary implication of the majority's decision in [People v. ]Bryant is that the offense is involuntary manslaughter." (Id. at pp. 33-34.)
Importantly, however, the court observed that when a defendant "indisputably has deliberately engaged in a type of aggravated assault the natural consequences of which are dangerous to human life, thus satisfying the objective component of implied malice as a matter of law, and no material issue is presented as to whether the defendant subjectively appreciated the danger to human life his or her conduct posed, there is no sua sponte duty to instruct on involuntary manslaughter. [Citations.] Otherwise, an involuntary manslaughter instruction would be required in every implied malice case regardless of the evidence." (Brothers, supra, 236 Cal.App.4th at p. 35.)
3. Analysis
Here, even assuming that "a killing without malice committed during an inherently dangerous assaultive felony" is involuntary manslaughter (People v. Bryant, supra, 56 Cal.4th at p. 971 (conc. opn. of Kennard, J.); see also Brothers, supra, 236 Cal.App.4th at pp. 33-34), the trial court did not err in failing to instruct on the theory as a lesser included offense of murder because there is not substantial evidence that defendant killed Maynard without malice.
The circumstances of the killing involved defendant and three to four coperpetrators chasing Maynard across a park, and punching, kicking, and stomping on him once he fell to the ground. At least one of the perpetrators inflicted 14 stab and incised wounds on Maynard's head, neck, back, and left leg before the group fled. Defendant was intimately involved in the killing. His proximity to Maynard was established by the presence of Maynard's blood on the crotch, right and left thigh-knee areas, and right shin of defendant's jeans and the medical examiner's testimony that Maynard's blood generally would have poured slowly from his body as opposed to spraying from his wounds since no major arteries were cut. 45
Defendant argues that "it was by no means a certainty that he wielded a knife in the attack. And if his participation was confined to punching or kicking, it was indeed debatable whether he was in conscious disregard of human life, a subjective element in implied malice aforethought." However, defendant points to no evidence from which a reasonable juror could infer that he did not "subjectively appreciate[] the danger to human life his . . . conduct posed" under the circumstances of Maynard's killing described above-even if defendant (along with several others) solely punched or kicked Maynard while at least one coperpetrator slashed and stabbed him repeatedly. (Brothers, supra, 236 Cal.App.4th at p. 35.)
"Defendant did not simply start a fistfight in which an unlucky blow resulted in the victim's death." (Cook, supra, 39 Cal.4th at p. 597.) "There was no evidence of an accidental killing, gross negligence or [defendant's] own lack of subjective understanding of the risk to [Maynard's] life that [the assaultive] conduct posed." (Brothers, supra, 236 Cal.App.4th at p. 34.) "[T]here was simply no evidence from which a reasonable juror could entertain a reasonable doubt that [defendant] had acted in conscious disregard of the risk [his] conduct posed to [Maynard's] life." (Ibid.)
"Because the evidence presented at trial did not raise a material issue as to whether defendant acted without malice, the trial court was not obliged, on its own initiative, to instruct the jury on involuntary manslaughter." (Cook, supra, 39 Cal.4th at p. 597 [involving a defendant who "savagely beat [the victim] to death"].)
IV. DISPOSITION
The judgment is affirmed. 46
WE CONCUR: GREENWOOD, P.J., ELIA, J. 47