Opinion
A157429
12-17-2021
THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. MARSHON LARON ARDOIN, Defendant and Appellant.
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. 51706902)
PETROU, J.
Appellant Marshon Laron Ardoin was tried by jury for the murder of David M. At the time of the incident, David, Ardoin, and Ardoin's mother were all passengers in a van being driven by David's friend Tino D. At trial, the prosecution's theory of the case was that Ardoin shot and killed David to avenge a relative's murder, in which David was rumored to have been involved. The defense theory of the case was that Tino shot David during the course of a robbery-a conspiracy among the van's passengers to steal David's money and drugs set up by Tino. The jury found Ardoin guilty of first-degree murder and found true firearm enhancement allegations.
On appeal, Ardoin contends he was denied a representative jury because the prosecutor improperly exercised a peremptory challenge to remove a prospective juror based on race. He argues the trial court committed a series of evidentiary errors and improperly refused to give the pinpoint jury instruction he requested. He further contends the prosecution committed prejudicial misconduct during closing argument. We affirm.
Factual and Procedural Background
David was killed by multiple gunshots while riding in his friend Tino's van. In April 2017, the Contra Costa District Attorney filed an information charging Ardoin with David's murder (Pen. Code, § 187, subd. (a)) and an enhancement for the intentional discharge of a firearm causing death (§ 12022.53, subd. (d)). In late October/November 2018, Ardoin faced a jury trial.
All further statutory references are to the Penal Code unless otherwise stated.
A. Prosecution's Case
1. The Crime
In April 2016, David was 28 years old and lived with his mother at her home in Hercules. David's best friend was Tino, who was around 43 years old. They had been friends for years despite their age difference and hung out every day. According to David's mother, they were close like brothers. David's father echoed that they were "pretty close" and that they talked and hung out regularly. Tino was also a family friend. A number of times, David's father spoke with Tino about watching out for David and taking care of him on the streets.
On April 14, 2016, at around 4 p.m., David's sister, Alicia H., swung by the house in Hercules to drop food off for David. He sorted through a wad of cash to find a $10 bill to pay her back. Alicia, who saw David count his money, estimated he had between $3,500 and $4,000.
Later that afternoon, Tino drove his van to David's house to pick him up. David's mother observed Tino driving and saw several other people in the van with him. She was concerned about the number of people in the vehicle but was assuaged by Tino's presence. She had no concerns about David being with Tino.
Around 9 p.m. that evening, Deputy Sheriff John Rock of the Contra Costa County's Sheriff's Office responded to a call for a welfare check on a man lying on a road in the outskirts of Bay Point. Rock found David lying on his back unresponsive, with his face bloodied and swollen. His arms were raised above his head, and the pockets of his jeans were turned inside out. From photos, Rock was able to see the pockets of David's jeans were turned inside out and blood on the inner lining of one of the turned-out pockets. Rock recalled that David's jaw appeared broken and his body was not yet cold. He performed life-saving measures on David to no avail.
Around midnight, detectives from the Contra Costa County Sheriff's Office went to David's mother's house to inform her of David's death. After Alicia heard the news that her brother was dead, she went to the house of David's friend, Jason. S., to find out what happened to her brother. Jason called Tino and put him on speaker phone. Alicia, who was listening in on the call unbeknownst to Tino, testified that Tino sounded "kind of hurt, crying kind of, upset."
According to Alicia, Tino explained the following to Jason on the call: He was in the driver's seat of his van with David in the front passenger seat, while his friend Letta C. was in the second row and Ardoin, her twenty-year-old son, was in the third row. As they were driving around, Ardoin brought up the topic of Roshelle F.-Ardoin's deceased cousin and godsister-and asked David about the rumors that David was somehow involved in her death. David said he had nothing to do with Roshelle's death and tried to change the subject. The next minute, Tino heard four shots from the back of the van. Ardoin had shot David. Ardoin then opened the van door and jumped out. As he exited, he knocked over his mother's purse, which he picked up and took. Tino and Letta were left driving around Richmond with David's body. They eventually decided to take his body to Bay Point. Afterwards, they drove to Vallejo, where Letta caught a taxi home. On the call, Tino also told Jason there were drugs in the van, and that he had a gun with him. Jason convinced Tino to talk to David's family.
Soon after this call, Alicia and David's father spoke with Sergeant Michael Meth. Alicia relayed to Meth the conversation she heard between Jason and Tino, including that Tino identified Ardoin as the one who killed David. She passed along the other information she learned from the conversation. In addition, Alicia told officers that she had overheard that Letta was scared when she and Tino arrived in Vallejo and hid behind a dumpster. Letta had been threatened and asked Tino and Jason not to kill her.
2. The Next Day
The morning of April 15, 2016, approximately 100 family and friends gathered at David's mother's house in Hercules. It was an emotionally charged atmosphere. They wanted to understand what had happened to David.
Early into the gathering, Meth, Officer Amanda Sears, and a Sergeant Aldritt appeared at the house. After the officers arrived, Tino and Jason showed up. Meth wanted to take Tino into custody immediately, but he allowed David's father to speak with Tino first.
When David's father approached Tino, whom he had known for 30 years, Tino began explaining that he had "nothing to do with it" and that he did not know Ardoin was going to shoot David. According to David's father, Tino explained that he was driving around Richmond with David, Letta, and Ardoin when Ardoin brought up Roshelle's death and David denied any involvement. Tino said Ardoin then shot David multiple times from the back of the van, and Tino yelled," 'What are you doing?'" Ardoin directed Tino to stop the van and, when Tino continued to drive, Ardoin shot again and hit the dashboard. At that point, Tino braked. Ardoin opened the van door and scooped up his mother's purse which had fallen. Nervous and at a loss for what to do, Tino resumed driving around Richmond for a while, and eventually he and Letta took David's body out to Pittsburg. Tino told David's father," 'I wasn't just taking him out to leave him. . . I made sure when I put his body out, a car was passing so that someone could call for help.' "
After David's father and Tino spoke, the officers took Tino into custody. Even though Tino appeared to be in a lot of distress, he was cooperative. As the officers were leaving with Tino, Jason expressed his displeasure that the detectives wanted to talk to Tino by yelling, making threatening remarks, and generally causing a scene as he saw Tino being transported away.
3. Tino's Police Interviews
The officers took Tino to a field operations building for an initial interview, which was video and audio recorded. Meth described Tino as "emotionally upset" but still amenable to speaking; he did not refuse to answer their questions. According to Meth, Tino told the officers that he was driving the vehicle David was killed in and generally described the events as he told them to Jason over the phone. He identified Ardoin as the shooter and identified him in a photo lineup.
After Tino explained where the shooting occurred in Richmond, the officers drove him to the location. There, Tino told the officers that the shooting took place while the car was still in motion, right before a stop light. Ardoin shot David 4 to 5 times in the back of his head and then fired another round in Tino's direction, which ended up striking the van's instrument panel.
At this point in the interview, Tino told the officers that, after Ardoin shot David, Ardoin held them captive and ordered Tino to drive to Bay Point. They went to an unknown street and Ardoin removed David's body from the van and left him. They got back into the van and, after driving a short distance, Ardoin jumped out somewhere in Bay Point. He and Letta returned to Vallejo and left the van on a street close to his mother's house. After the interview, the officers detained Tino in jail.
A few days later, on April 18, 2016, Meth interviewed Tino a second time while he was still in custody. Meth confronted Tino about inconsistencies in his statements regarding Ardoin's departure from the van, and Tino admitted he lied. He said that after Ardoin shot David while they were in Richmond, he told Tino to stop the van and then immediately jumped out and took his mother's purse with him. Letta was upset and screaming and yelling the entire time. She told Tino that Ardoin was on drugs and had been away for a couple of days. At some point, Tino and Letta discussed Roshelle as the possible reason Ardoin shot David. They drove to Bay Point with David's body in the passenger seat, and Tino removed David's body from the van. They made their way back to Vallejo. Letta wandered off, and the following morning texted Tino that she had made it home.
In this second interview, Tino said he did not call the police or go to the hospital because he did not want to go to jail for a crime he did not commit. He denied having a gun but acknowledged they had marijuana and cocaine in the van and Letta had methamphetamine in her pocket. Tino noted that Ardoin had a cast on his left hand. Tino acknowledged cleaning up the van, too. He did not say he took money from David in the aftermath of the killing. This interview was also video and audio recorded.
4. Letta's Police Interview
On April 18, 2016, Meth arrested Letta and interviewed her. Meth never told Letta what Tino had told him. Letta told Meth her son Ardoin shot David. According to Meth, Letta's account of events matched Tino's for the most part, including details such as Ardoin's invocation of Roshelle's name, the number of shots he fired, and his taking of her purse. She also recounted that Ardoin used his right hand to shoot, as his other hand had was in a cast. One of Letta's statements, however, did not match what Meth had heard previously. At first Letta said she left the van after the shooting in Richmond but then acknowledged she rode with Tino to Bay Point to remove David's body.
During the course of the interview, Letta stated that she had been using drugs in the days before meeting with Tino. She added that Ardoin "had been out for a few days" and that he, too, was using methamphetamine. She never saw Tino with a gun that day. Nor did she ever waiver or change her description of Ardoin as the person that shot David. After's David's death, Letta had received threats in retaliation which caused her to fear for her safety.
Towards the end of the interview, the officers spoke with Letta about locating her son. Letta was receptive and asked to call her mother. On the call, which was observed by officers outside of the interview room, Letta was crying and very upset. She told her mother she was going to jail and would be charged as an accessory, so "she might as well kill herself." She asked her mother to contact Ardoin and have him turn himself in. She also remarked on her disbelief that Ardoin "had left her there to die." Letta's interview was video and audio recorded.
5. Additional Evidence
David's autopsy was conducted on April 18, 2016. According to the forensic pathologist, the cause of death was "multiple[/]two gunshot wounds." David had two gunshot wounds in the head area. The first gunshot wound entered closer to the front of David's face, "traveled back to front . . . right to left, and then sharply downward," and the bullet lodged in the jawbone on the left side of his face. The second gunshot wound appeared on the back of the head. The bullet entered on the right side of the back of the head, fractured the skull, perforated the brain, and then exited beneath the top of the head. There were no signs of powder burn or soot that would have indicated the shots were fired from within close range. The pathologist opined that the firearm was discharged above and behind David from beyond 18 inches.
Besides the gunshot wounds, David also had four scalp lacerations and another laceration on his jawline, indicating a second pattern of injuries apart from the gunshot wounds. The lacerations looked similar, so the pathologist opined that they were likely caused by the same instrument. The pathologist offered two theories for these injuries. The first was a possible pistol-whipping, whereby he was hit in the head with the butt of a gun. The second theory was that the lacerations could have come from shattered glass hitting his face and cutting him. The wounds had blood which appeared to be "pre-mortem blood," meaning that David was alive when they were inflicted.
Tino's van was located parked on the street in Vallejo, where it was examined. Cigarette butts, cartridge cases, bullets and bullet fragments were collected from the van. There was apparent bullet damage to the speedometer that seemed to have come from the rear of the vehicle, since there was no damage on the exterior of the car indicating penetration from the outside. "[G]reen vegetated debris" was found in the area of the front passenger seat. The front passenger window was down when the van was found, but the technician could not say whether the window still existed. There was no blood or blood splatter in the van.
6. Ardoin's Arrest and Gun Discovery in Dixon
In early May 2016, Ardoin was arrested. He was apprehended in Dixon at an apartment building leased to one of Ardoin's relatives. Officers searched the apartment for a gun but did not find one.
Several months later, maintenance workers for the apartment building discovered a gun in the unit where Ardoin had stayed while removing the washer/dryer unit for the new tenant. Upon pulling out the machines, one of the maintenance workers noticed a bag behind the dryer vent. When he pulled the bag out, he felt an object he believed to be a gun. After removing it from the apartment and investigating further, he saw there was a gun, which had been wrapped in two plastic bags. The apartment building notified police, and Meth collected the weapon.
7. Crime Lab's Processing of the Evidence
Criminalists from the county crime lab processed the evidence.
DNA evidence from the van yielded matches to David and Letta. The major male DNA profile developed from a cigarette butt removed from the passenger front cup holder matched David's DNA profile. The DNA profile developed from a cigarette butt taken from the floor in the second row passenger area matched Letta's DNA profile. The DNA profiles pulled from swabs of the interior passenger rear door handle and the passenger side middle armrest also matched Letta's. No DNA profiles could be generated from DNA samples taken from the steering wheel, interior driver-side rear door handle, or the passenger-side second row armrest.
The gun found in the Dixon apartment building had no retrievable fingerprints. However, the two plastic bags in which the gun had been wrapped yielded prints that matched Ardoin's prints. In addition, there was a mixture of DNA from at least three contributors found on the back and right grip of the gun. There was one major male contributor for which criminalists were able to develop a partial DNA profile. Ardoin's DNA profile was included in the partial profile. There was no other identifiable contributor of DNA found on the gun.
In addition, a criminalist in the crime lab's firearms unit determined at least two of the casings found in the van were fired by the gun. The bullet fragments were not suitable for comparison because they were too small for a meaningful comparison. Although bullets from the autopsy lacked sufficient markings for a definitive match, they could not be eliminated from having been fired from that same gun.
8. Tino and Letta's Trial Testimony
At trial, Tino testified pursuant to a subpoena. He was a reluctant and occasionally hostile witness who was upset throughout his testimony. At one point, he said that "[t]hey got me on . . . meds. I'm all fucked up."
He could not remember much of what occurred on the day of David's death and the days that followed. Regarding that day, he stated, "I barely remember. I was out of it. [¶] Discombobulated and all screwed up." In response to most questions about events those days, he repeatedly stated, "I don't remember," "I don't know," "It's all a big blur," or something to that effect. At one point, he noted, "Everything is missing pieces, man," and "I blanked out. Completely blanked out." Tino denied knowing Letta, did not remember whether there was anyone in his van that day, and asked the prosecutor why he was asking "dumb ass questions" when he already "kn[ew] the story." He did not remember seeing a photo lineup. He remarked, "I was out of it, man," and "To this day, I still think I don't remember." He did not remember ever speaking to police.
However, Tino did testify to the following: He described David as his "little brother," remarking that he "loved him to death" and thought about him every day. He called David his "heart and soul" and his "favorite dude." Tino also testified that the last time he saw David was in his car, where he died. That day, he got off work sometime after 2 p.m. and went to David's house. When he picked up David, there was no one else with him. He was driving the car and David was in the passenger seat. He was approaching a stop sign then heard shots and saw David was shot. He stated, "I heard shots. That's it. Everything went black for me. All I heard was ringing. . . I fuckin' freaked out." Asked if he ever looked back to see Ardoin shooting, he responded, "I was ducked down. I was ducked down. All I heard was shots." But he continued, "I had nothing to do with it. You know, they know, and everybody else know." The day after David's death, he was arrested and went to jail.
When asked why he didn't take David to the hospital after he had been shot, he replied, "I can't answer that question, man. . . . You supposed to take somebody to the hospital. . . . It eats me up every day . . . . And my mistake what I did, don't a day go pass." It was" 'a huge mistake'" and he "panicked, freaked out."
Asked if he drove David's body to Bay Point, Tino responded, "I did it but I don't remember none of that stuff, man." He repeated that he did not remember dumping David's body but said pulling David out of the car was "[t]he worse mistake" he ever made in his life. He "freaked out" and was "selfish trying not to get [himself] in trouble" because he had a strike and panicked. He greatly regretted handling David's body the way he did.
He denied that Jason ever told him to talk to David's family, but added that the day after David died he went to David's mother's house on his own because that was the right thing to do. He went to the house to tell them David was gone. David's family was like family to him. Over the years, David's father had asked him to look out for David. When David died, he felt like he had failed David. Tino had an excellent relationship with David's father. Had he talked to David's father, he would not have lied to him. Nor would he have lied to Alicia or Jason if either had asked him questions about David's death.
He knew Roshelle, the family friend who had been killed in 2008. In the past, he told David's father that David had said he knew nothing about what happened to Roshelle and was not involved in her death. Tino did not believe any of the rumors about David's involvement in Roshelle's death to be true. He never took any action against David because of the rumors because he knew David had nothing do with her death.
He understood that Ardoin was charged with killing David. He repeated that he had nothing to do with David's death. He did not do anything to physically hurt David the day he died or anything else that resulted in David's death. He had no ill will towards David and still loved him.
During his cross-examination, Tino's criminal history was probed. In 1993, he was convicted for possessing cocaine for sale. In 2008, around the time of Roshelle's death, he was arrested for being a felon in possession of a gun and for possession of cocaine for sale. He understood that as a convicted felon, he should not have a gun or bullets. He denied pulling David out of the van, dragging him along the dirt, or leaving him on the side of the road. He denied leaving him lying with his arms above his head. He denied going through David's pockets and pickpocketing him. He denied calling his friends or that they came to aid him. He also denied cleaning the van, or disposing of his bloody clothes. He denied that he was upset with David for making more money than he was making. When the defense suggested he got rid of his van because he was the one who killed David, he responded, "Bitch, are you crazy? Why would you say stuff like that? No, I did not do that."
Letta's trial testimony also differed in many respects from the responses she gave in her interview with Meth a few days after David's death and from her April 2017 preliminary hearing testimony. Letta testified that on the day David died Tino picked her up from her grandmother's house in Richmond around 6:30 p.m. It was her birthday and she had been drinking and was high when she joined Tino. She wanted Tino to drive her to the car lot so she could buy herself a car.
Tino drove, while David sat in the passenger seat, she sat in the row behind David, and her son sat behind her. They smoked in the van and were having a good time. They stopped at a store, where she bought liquor. About an hour and a half later, as it was getting dark, David was shot. She got down, screamed, and turned her head. She heard six shots. Initially, she thought the shots came from outside but soon realized it was Tino shooting at David. He had stopped driving and was shooting David from the driver's seat, while she remained on the ground and Ardoin stayed behind her. She did not see the hand Tino used to shoot.
Before the shooting, there had been no indication of tension or conflict in the van. She did not recall seeing Tino assaulting or hitting David with the gun before shooting him. She had heard no argument over drugs. The day of the shooting, she did not see Ardoin use any drugs, and did not recall telling police that he had used marijuana. She never told Tino that Ardoin shot David because he was high on drugs.
Letta further testified that, besides David, no one else and nothing else in the van was hit. She did not recall telling police that one of the bullets had struck the dashboard. Ardoin never had a gun and never shot a gun in the van. She denied telling the police that her son was the shooter. She denied telling police that Ardoin had used his cast-free hand to shoot David, or that she ever identified her soon as the shooter. She did not recall saying in her initial interview that she had not seen Tino with a gun. She had identified Tino as the shooter to police.
Letta further testified that after Tino stopped shooting he began to drive. Meanwhile, she and her son urged Tino to let them go. When Tino "kind of slowed down," Ardoin was able to get out. In the process, her purse fell out of the van. During her attempt to leave and retrieve her purse, Tino sped up causing her to almost fall out of the car but she was not able to get out or reclaim her purse. At that point, she was left with Tino, who would not let her out. She thought Tino was going to hurt or kill her. Tino drove them to Bay Point. They did not discuss anything. She denied telling police that she had a conversation with Tino in the car speculating that Ardoin had killed David because of Roshelle.
Around 9:30 p.m., Tino pulled David's body out of the van, while she stayed in the vehicle. She presumed Tino laid David's body on the ground but was not looking. Before removing David's body from the van, she saw Tino go through David's clothing and rifle through his stuff. When Tino returned to the van, she saw he had money and a bag of marijuana.
Around 10 p.m., they reached Vallejo. After locating her phone, Tino handed it to her and let her go. He gave her their location, and Letta called her father to pick her up. Back at her house, she remained scared of Tino, especially because she had witnessed him shoot David, and she continued to perceive him to be a threat to her safety, especially because he knew where she lived. When she returned home, she received threats and was told not to say anything. She denied texting Tino the following morning that she was home.
Days later, after she was questioned by police, officers told her that she was going to be arrested for being an accessory. She asked to call her mother, which officers permitted. She denied that she asked her mother to contact Ardoin and tell him to come forward.
On cross-examination, Letta filled in additional details about the night's events. She said she begged Tino to take David to the hospital after he was shot but Tino told her to be quiet and stay in the back and that he did not want to get in trouble. When they reached Vallejo after their stop in Bay Point, she saw other cars and three to four others came to meet Tino. She thought they were there to kill her, so she ran out of the van and hid behind a nearby dumpster. Jason was among them; he pulled out a gun and pointed it at her, threatened her and her family, and told her to lie and blame her son for David's death. To live, she agreed. Meanwhile, Tino cleaned out the van, removing bags from the vehicle and wiping away blood. He went into a house to take off his bloody clothes and came back out wearing fresh ones. After she promised to falsely blame her son, she called her father to pick her up. Tino gave her money and told her to leave.
Once she got home, she was still scared. She hid in the bathroom because she thought people were watching her house, and she saw people in the backyard. She received calls telling her to keep her mouth shut and threatening to kill her and her mother. In the following days, she continued to consume drugs-methamphetamine, cocaine, marijuana, and alcohol. When she initially spoke to police, she acknowledged that she had told officers that Ardoin had shot David but only did so because she had been threatened with death.
B. Defense Case
Richmond Police Lieutenant Stina Johnson testified she interviewed Tino in February 2008 at a Richmond hospital. Tino told her Roshelle was his godsister and Roshelle's mother was his godmother. Roshelle had been killed a few days before they spoke, and he was "still crying, still grieving" over her loss. At some point, she shared that law enforcement wanted to know who was responsible for Roshelle's death. Tino never mentioned David's name to Johnson in connection with Roshelle's death.
Kristin D'Souza, a law school graduate working at the Contra Costa County Alternate Defender's Office with Ardoin's counsel, testified that she had accompanied defense counsel to the coroner's office when counsel spoke with the pathologist who performed David's autopsy. In the meeting, the pathologist said that the wounds on David's scalp were "potentially caused by pistol-whipping" and never mentioned that they could have come from shattered glass.
The defense also recalled a criminalist who had been at the Bay Point crime scene where David's body was found and who had testified for the prosecution. When she arrived at the crime scene, she observed David lying on his back with his front pockets pulled out. There was also a five-foot drag mark in the dirt that ended at David's feet. She did not find any drugs or money at the scene, nor did she note any shattered glass.
Daniel Wedemeyer, Senior Inspector in the Contra Costa County District Attorney's Office, detailed two conversations with David's sister Alicia in May 2018. Alicia told him that she had seen David the day he died to drop off lunch for him. When she asked her brother for money for the lunch, she saw he had about $4,000 in cash. Alicia also told him she had visited Jason's house the morning after David's murder in order to find out what happened. On the call between Jason and Tino that she overheard, Alicia heard there were drugs all over the van after the shooting. Jason returned David's marijuana to the family, but the family never got any money back.
The defense called Jason, who appeared in court in physical restraints. He plead the Fifth Amendment and refused to answer any questions.
Alicia was also recalled as a witness. She agreed that she had gone to Jason's house in Richmond the morning after hearing of his death in order to find out what happened to her brother, but repeated that Jason never directly told her that he had gone to Vallejo the night before to harm Letta, nor did she ever tell officers that Jason said he went to Letta and was going to kill her. Jason never told her that when he saw Letta in Vallejo she was scared and ran behind a dumpster or that he pointed his gun at her. Alicia explained that those were all rumors which she had heard within a few hours of learning David had died and which she passed along to Meth.
Sergeant Meth was recalled as a witness, as well. When he spoke with Alicia the day after David's death, Alicia never told him that she was repeating rumors or that Jason did not go to Vallejo. In addition to sharing what she had overheard on the speakerphone conversation between Jason and Tino, she also repeated information Jason told her, including that Jason had gone to Vallejo the night before and had brandished a gun at Letta. She also reported to Meth that Jason had told her he was going to kill Letta. However, Letta apologized, said her son was wrong, and convinced Jason not to kill her, so he allowed her to live.
Lieutenant Ian Gibson, who was a patrol sergeant for the Contra Costa County Sheriff's Department in April 2016, testified that he was dispatched to the Bay Point location where David's body had been left. He told the criminalists on the scene that David had been found on his back with his front pockets pulled out.
The defense recalled Wedemeyer who confirmed that during one of his calls with Alicia, she told him that Jason had gone to Vallejo to kill Letta but did not. She never described this information to Wedemeyer as rumor or word on the street.
Ardoin did not testify.
C. Stipulated Evidence
The parties stipulated that Tino was convicted of the following felonies in the years noted: possession of cocaine for sale (1993); evading the police (2006); possession of cocaine for sale (2008); felon in possession of a firearm (2008); attempted robbery (2014); felon in possession of a firearm (2015). They further stipulated that Jason was convicted of the following felonies: carjacking (1994); voluntary manslaughter (1996); felon in possession of a firearm (2012); and evading the police (2017).
D. Verdict, Sentencing, and Appeal
The jury found Ardoin guilty of murder in the first degree and the firearm enhancement true. The court denied Ardoin's motion for a new trial. On count 1, the court sentenced Ardoin to 25 years to life and struck the firearm enhancement. This appeal followed.
Discussion
A. Batson/Wheeler
Ardoin, who is African-American, contends the prosecutor improperly exercised a peremptory challenge against A.C., an African-American prospective juror, on the basis of race and thus denied him a representative jury. He argues the trial court erred when it denied his Batson/Wheeler objection to the peremptory challenge.
In his opening brief, Ardoin suggests the prosecutor improperly excused multiple African-American jurors from the jury. However, his argument concerns only the peremptory challenge to one prospective African-American juror, A.C., which is the sole focus of this analysis. In reply, Ardoin notes that prospective African-American juror D.L. was challenged before A.C. Given the lack of any argument regarding D.L., we do not consider his removal in our analysis.
1. Applicable Law
Both the state and federal Constitutions prohibit the use of peremptory challenges intended to remove prospective jurors on the basis of group bias. (People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79, 88 (Batson).) The now familiar Batson/Wheeler inquiry consists of three distinct steps. First, the opponent of the strike must make out a prima face case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose in the exercise of peremptory challenges. Second, if the prima facie case has been made, the burden shifts to the proponent of the strike to adequately explain the basis for excusing the juror by offering permissible, nondiscriminatory justifications. Third, if the party has offered a nondiscriminatory reason, the trial court must decide whether the opponent of the strike has proven purposeful discrimination. (Johnson v. California (2005) 545 U.S. 162, 168.)" 'The ultimate burden of persuasion regarding [discriminatory] motivation rests with, and never shifts from, the [defendant].'" (People v. Manibusan (2013) 58 Cal.4th 40, 75.)
"Review of a trial court's denial of a [Batson/Wheeler] motion is deferential, examining only whether substantial evidence supports its conclusions." (People v. Lenix (2008) 44 Cal.4th 602, 613; see People v. Crittenden (1994) 9 Cal.4th 83, 117 ["' "Because Wheeler motions call upon trial judges' personal observations, we view their rulings with 'considerable deference' on appeal."' ")
2. Voir Dire
On her juror questionnaire, prospective juror A.C. indicated she had a relative who had been convicted. In response to the trial court's questions, A.C. explained her brother was found guilty of sexual assault following a jury trial in which he was represented by a public defender. She attended some of the court proceedings, and he remained incarcerated. The following exchange occurred:
"[The Court]: [D]o you have an impression or a feeling that he was treated fairly or unfairly?
"[A.C.]: I do believe that he was treated unfairly based on where he was.
"[The Court]: Based on?
"[A.C.]: Where he - the location of the - this was in Redding. . . [¶] . . . So I just feel like it was unfair. He wasn't fairly treated where he was. I feel like if he was in the Bay Area, he would have received fair treatment.
During the prosecutor's questioning, A.C. stated that she was close to her brother and his trial occurred 15 years earlier. She blamed the Redding mindset for mistreating her brother, not the criminal justice system. A.C. agreed with the prosecutor that "in terms of how he was treated by the system where it happened, that sounds like that's still kind of - it has left some feelings for you." She further agreed that her feeling of unfairness derived from where the crime or prosecution took place, and suggested Redding's "one type of demographic" led to her brother's mistreatment.
The prosecutor expressed his concern that jurors are "not allowed to make a systemic judgment. You're not to look and say, well, there are things that are wrong that the way the system works and my vote as a juror needs to correct some systemic wrong . . . be that demographics, be that politics or political slant of where this is being tried." To A.C., the prosecutor commented, "I have concerns that either consciously or unconsciously your experience might affect how you look at Mr. Ardoin." A.C. responded, "You don't need to be concerned about that. I've lived in this area for over 25 years and I feel that the system in this area because it's such a melting pot that fairness is possible. So I don't need to feel that protection over the defendant."
A.C. further shared that she had family members out-of-state who had also been involved with the criminal justice system based on a range of offenses, including assault, domestic violence, and robbery. However, their contacts with the system did not affect her view of Ardoin's case because they were long ago and she had little contact with those family members and they had been treated fairly.
In response to defense counsel's questioning, A.C. repeated that what happened to her brother would not impact her performance as a juror in any way. She would be "fair and impartial."
The prosecutor excused A.C. with a peremptory challenge. Defense counsel asserted a Batson/Wheeler objection to the peremptory challenge: "I understand that initially [A.C.] had made some comments about . . . how her brother had been charged with a sexual assault while in Redding. However, she explained that it had happened 15 years ago and the reason why she had believed that he had been treated unfairly was because of the area that he was in which is out of this county in Redding. She had, I believe, rehabilitated herself when she was answering [the prosecutor's] questions. She said that it wouldn't happen in the Bay Area, it's more diverse here. And, in fact, I think she knew exactly what [the prosecutor] was asking when she said . . . something to the effect of you don't have to feel concern for me or for her feelings . . . [of] being overly protective of this defendant because Mr. Ardoin is African-American. She didn't say that but I believe that's the context of why she said that."
The court overruled Ardoin's objection, explaining that suspicion of the criminal justice system or a feeling that people were treated unfairly by the criminal justice system provides sufficient justification for a peremptory challenge. The court declined to find a prima facie case and thus did not ask the prosecutor to put his reasons for the challenge on the record but gave him the opportunity to do so.
In response, the prosecutor stated that the remoteness of A.C.'s brother's prosecution was unimportant because he remained incarcerated. The prosecutor observed that A.C.'s reaction was not the usual reaction he experienced from jurors with a family member convicted of a sex crime, which usually was one of disbelief or a "he got what he deserved" reaction. He added that it concerned him that appellant looked to be in the same age bracket as A.C's brother when he was convicted and "note[d] also that . . . [m]y impression of her was she was also giving very clipped answers" in response to his questions. The prosecutor agreed that when A.C. started to understand why he asked the questions he did, she "immediately jump[ed] to the issue" to rehabilitate herself. He surmised that such an effort "may be enough that it would not satisfy a challenge for cause but, based on that, I do believe it did create a sufficient ground where I would be entitled to excuse her."
The parties agree that there had been a total of six prospective African-American jurors. One was jointly challenged for cause. Two were seated on the jury, and another was the first alternate. The other two prospective African-American jurors, which included A.C., were the subject of peremptory challenges by the prosecutor.
3. Analysis
We agree with the trial court's conclusion that Ardoin failed to make a prima facie showing that A.C. was excused because she was African-American.
"A prima facie case of racial discrimination in the use of peremptory challenges is established if the totality of the relevant facts' "gives rise to an inference of discriminatory purpose." '" (People v. Scott (2015) 61 Cal.4th 363, 384.) "Although the question at the first stage concerning the existence of a prima facie case depends on consideration of the entire record of voir dire as of the time the motion was made [citation], we have observed that certain types of evidence may prove particularly relevant. [Citation.] Among these are that a party has struck most or all of the members of the identified group from the venire, that a party has used a disproportionate number of strikes against the group, that the party has failed to engage these jurors in more than desultory voir dire, that the defendant is a member of the identified group, and that the victim is a member of the group to which the majority of the remaining jurors belong. [Citation.] A court may also consider nondiscriminatory reasons for a peremptory challenge that are apparent from and 'clearly established' in the record [citations] and that necessarily dispel any inference of bias." (Ibid.)
The record before us contains sufficient grounds for the court's finding of no prima facie case of racial discrimination under current law. As the trial court correctly observed, having a family member in the criminal justice system has been recognized as valid grounds for a peremptory challenge. (People v. Lomax (2010) 49 Cal.4th 530, 573 ["The arrest of a . . . close relative is an accepted race-neutral reason for exclusion."]; People v. Smith (2019) 32 Cal.App.5th 860, 878 [current caselaw has repeatedly held that a negative experience by a close relative of juror with the criminal justice system is a bona fide, genuine, and race-neutral reason to excuse the juror].) A.C. stated her brother, with whom she was close, had received unfair treatment in a criminal proceeding in Redding and was still serving a long term of incarceration. Other members of A.C.'s family also had substantial contacts with the criminal justice system. These provided legitimate, race-neutral grounds for excusing A.C. under current law. Further, the record shows that the prosecution did not strike most or all African-American prospective jurors. Of the six African-Americans in the jury pool, two were jurors and one served as an alternate. Under the totality of the circumstances, there were nondiscriminatory reasons to excuse A.C. that dispelled an inference of racial bias.
Ardoin argues that A.C's response regarding her brother's experience with the criminal justice system was not race-neutral as having family members in the criminal justice system "is common for many cognizable groups, and the use of such association as a justification has had a disproportionate impact." Even if we recognize the disproportionate impact of such purportedly race-neutral reasons, we must adhere to current law which still allows a prosecutor to challenge a potential juror based on her or her family's contact with the criminal justice system without giving rise to an inference of discrimination. (See Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455 [decisions of Supreme Court must be followed by all the state courts of California].)
Ardoin cites extensively to Assembly Bill 3070 ("AB 3070"), the legislation signed by the Governor in September 2020, which will add section 231.7 to the Code of Civil Procedure and impose new limits on peremptory challenges in criminal cases. (Code Civ. Proc., § 231.7, added by Stats. 2020, ch. 318, § 2.) Among other things, it amends the Batson/Wheeler analysis such that, instead of requiring that a party objecting to a peremptory challenge establish a prima facie case (the current first step of the Batson/Wheeler analysis), the party whose exercise of a peremptory challenge has been challenged must state its reasons for exercising the challenge. (Id., § 231.7, subd. (c).). The court evaluates the reasons given, and if it "determines there is a substantial likelihood that an objectively reasonable person would view race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, as a factor in the use of the peremptory challenge, then the objection shall be sustained." (Id., § 231.7, subd. (d)(1).) If the objection is sustained, the court may take certain actions including but not limited to seating the challenged juror or restarting jury selection. (Id., § 231.7, subds. (d)(1), (h)(1)-(5).)
In addition, the statute identifies a number of reasons for exercising a peremptory challenge that are "presumed to be invalid unless the party exercising the peremptory challenge can show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror's race [or other protected class], and that the reasons articulated bear on the prospective juror's ability to be fair and impartial in the case[.]" (Code Civ. Proc., § 231.7, subd. (e).) These presumably invalid reasons include "[e]xpressing a distrust of or having a negative experience with law enforcement or the criminal legal system" and "[h]aving a close relationship with people who have been stopped, arrested, or convicted of a crime." (Id., § 231.7, subd. (e)(1), (3).) While we are mindful of the concerns driving the adoption of AB 3070, the statute, however, applies only to trials in which jury selection begins on or after January 1, 2022. (Id., § 231.7, subd. (i).)
Even though AB 3070 is not available until 2022, Ardoin contends that "the listing of presumptively invalid justifications does not restrict courts from finding such excuses presumptively invalid in current, pending cases under current, valid constitutional law." He says we can invalidate such excuses now under the Fourteenth Amendment's equal protection clause akin to the Washington Supreme Court, which modified the standard for appellate review of Batson challenges in State v. Jefferson (Wash., 2018) 192 Wash.2d 225 (Jefferson).
Since jury selection was completed in this case in November 2018, we are precluded from applying the terms of AB 3070 to our analysis. Consistent with the California Supreme Court's decision in People v. Battle (2021) 11 Cal.5th 749, we decline Ardoin's invitation to utilize the passage of AB 3070 to circumvent the application of existing Batson/Wheeler jurisprudence. (Id. at p. 776, fn. 9 [declining invitation to overturn Batson/Wheeler case law based on recent passage of AB 3070 given law has yet to take effect].)
Nor can we apply Jefferson. There, the prosecution exercised a peremptory challenge to remove the last African-American from the jury pool. (Jefferson, supra, 192 Wash.2d at p. 230.) The reasons stated for the dismissal were that the juror thought voir dire was a "waste of time," was very enthusiastic about the movie 12 Angry Men, and brought irrelevant outside discussions into jury deliberations in a prior trial. (Id. at p. 233.) The Jefferson court concluded that, under the current Batson test, the trial court's ruling that the state did not exercise purposeful racial discrimination was not erroneous but noted that the prosecution's reasons appeared to be a pretext for intentional race discrimination when comparing the prosecution's disparate responses to other jurors' answers. (Id. at pp. 231-239.)
The Jefferson court proceeded to apply a modified Batson test to decide the issue. (Jefferson, supra, 192 Wash.2d at p. 230 at pp. 239-251.) Under its modification, the Washington Supreme Court changed the third step of the Batson test as follows: "If a Batson challenge to a peremptory strike of a juror proceeds to [the] third step . . ., then the trial court must ask whether an objective observer could view race or ethnicity as a factor in the use of the peremptory strike. If so, then the strike must be denied and the challenge to that strike must be accepted." (Id. at p. 229.) In addition, the modified test applies an objective standard, so the trial court's decision is reviewed de novo, not deferentially. (Id. at p. 250.) Applying this standard, the court concluded that the prosecution's proffered, racially neutral reasons for exercising the peremptory strike against the last African-American juror were not supported by the record and reflected differential treatment that could support an inference of implicit bias. (Id. at pp. 250-251.) Again, while we are mindful of the concerns driving the Jefferson court's adoption of a modified Batson test, it is out-of-state authority that does not control our review. In addition, the record here does not portray a comparable picture of race as a motivating factor in the prosecution's decision to excuse A.C. as it was in Jefferson.
B. Evidentiary Issues
Ardoin contends three of the trial court's evidentiary rulings were erroneous and deprived him of a fair trial. We consider each of Ardoin's evidentiary arguments in turn.
1. Evidence Related to a 2008 Drive-By Shooting
In a pretrial motion made pursuant to Evidence Code section 1101, subsection (b), Ardoin moved in limine to introduce evidence of the facts underlying Tino's 2015 convictions for possession of cocaine for sale (Health & Safety Code, § 11351.5) and for being a felon in possession of a firearm (§ 12021). As explained by Ardoin, the police report of the underlying incident which occurred in 2008 stated that an officer saw someone from a van shoot at a person standing in the street. The officer also saw what appeared to be the long barrel of a gun sticking out from the van, which was occupied by several passengers. When the officer stopped the van, Tino fled. Another officer thought Tino was going to shoot at them, so he shot Tino in the leg. A gun was found close to where Tino was apprehended. At the hospital, paramedics observed "what appeared to be drugs hidden in [Tino's] buttocks." One of the van's passengers told police he saw Tino shoot out of the van. Tino later admitted that he shot out of the van and ran to get rid of the gun. He also explained that his godsister Roshelle had recently been killed and he was comforting Roshelle's sister, who was a passenger in the van. In describing this incident, the prosecution noted that Tino had been a passenger in the van and he fired shots from the van when he saw someone brandishing a rifle at him and his fellow passengers.
In response the motion, the court noted that defense counsel's objective was to prove the person who shot David was Tino, the van's driver, and that defense counsel sought to admit evidence of the 2008 incident to show" 'the pattern and characteristics of [Tino's] crimes [were] so unusual and distinctive as to be like a signature.'" The court, however, did not find the circumstances between the 2008 incident and the incident before the court to be "identical like a signature." The court told the defense: "You have plenty of evidence to cross-examine [Tino] in terms of whether or not he could be a third party perpetrator so you have all that. But getting into the facts of the 2008 incident, I don't think is appropriate in this case but you have a lot." The court denied Ardoin's request to present this evidence to the jury. However, it allowed the facts of the criminal conviction to be used for impeachment purposes. Accordingly, at trial evidence regarding Tino's drive-by van shooting episode was limited to his resulting firearm conviction and possession of cocaine conviction arising from the incident.
Ardoin contends the trial court erred in excluding this evidence of the 2008 "drug-dealing van-shooting" incident in which Tino fired a gun from a van despite the presence of multiple parties. He argues that the evidence was relevant to "impeachment, motive, common-plan-or scheme" and that it showed Tino's willingness to shoot someone despite other passengers who could serve as witnesses, and his use of other people as dupes. He further contends the "third-party culpability exclusionary rule" did not preclude the introduction of such evidence. He says the court's exclusion of this evidence deprived him of evidence to impeach Tino's account of events that it was Ardoin who shot David from the back of the van. He further asserts the admission of such evidence would not have been unduly burdensome or confusing to the jury.
Even though we typically review a court's exclusion of evidence for abuse of discretion, Ardoin argues our review should be de novo because the court's ruling restricted his ability to cross-examine witnesses and thus violated the confrontation clause. (See People v. Waidla (2000) 22 Cal.4th 690, 717 ["[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence."].) We do not decide that issue because we would affirm the trial court's ruling under either standard. Even if we assume the facts underlying Tino's 2015 conviction were relevant, the trial court acted within its discretion to exclude the evidence whether offered for impeachment or to prove third party liability.
Under Evidence Code section 1101, subdivision (a), evidence the defendant committed a prior crime is generally inadmissible to prove a defendant likely committed a later crime. (Evid. Code, § 1101, subd. (a).) However, subdivision (b) states: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . . .) other than his or her disposition to commit such an act." (Id., § 1101, subd. (b).) Evidence Code section 352 states: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Id., § 352.) Evidence admitted pursuant to Evidence Code section 1101, subdivision (b) must further be evaluated under Evidence Code section 352. (People v. Ewoldt (1994) 7 Cal.4th 380, 404.)
Here, the probative value of the 2008 drive-by shooting incident was substantially outweighed by the probability of creating undue prejudice. Ardoin says the evidence was relevant to "motive" and "common-plan or scheme." The defense theory of the case was that David was killed in botched conspiracy designed to rob him, but there is no indication the 2008 drive-by shooting involved any such robbery. Even if we consider the alleged motive proffered by the prosecution-that David was killed to avenge Roshelle's murder-Ardoin does not explain how the 2008 incident was probative of this motive. While the incident occurred around the time of Roshelle's murder and the police report noted Tino's acknowledgment that he was comforting Roshelle's sister in the van, there is no indication that the 2008 incident was at all related to Roshelle's death. According to the prosecutor's supplemental description of the event, which Ardoin does not dispute, Tino opened fire from the van only when he saw someone brandish a rifle at the van. That suggests self-defense, not revenge for Roshelle.
The proffered evidence was also not probative of the identity of the shooter or a common plan or scheme. "For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] 'The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.'" (Ewoldt, supra, 7 Cal.4th at p. 403.) The two shootings were fundamentally different. The 2008 incident involved shots fired outside the van towards an unnamed individual under a claim of self-defense, while the 2016 incident occurred inside the van in a targeted killing of one of its known passengers.
Moreover, the evidence was also prejudicial. Absent any legitimate reason to introduce the evidence for motive or identity, the evidence would have been used for the inadmissible purpose of demonstrating Tino's disposition for gun violence. (See People v. Elliott (2012) 53 Cal.4th 535, 580 ["Evidence of a third party's prior crimes is inadmissible to establish the third party's criminal propensity."].) Given the danger of undue prejudice, the trial court did not abuse of discretion in excluding it.
Finally, even if the court erred in refusing to admit the evidence of the 2008 drive-by shooting, the error was harmless. Evidentiary error, if any, is harmless if it is not reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (People v. Marks (2003) 31 Cal.4th 197, 226-227.) Ardoin references this reasonable probability standard several times in his argument, but also appears to suggest that the standard of review is the stricter "harmless beyond a reasonable doubt" under Chapman v. California (1967) 386 U.S. 18, 24. We shall not decide this issue either because we would find the error harmless under either standard.
Ardoin was permitted to impeach Tino by eliciting testimony about Tino's felony convictions that resulted from the 2008 drive-by shooting. Additionally, Ardoin was able to cross-examine Tino at length about the defense theory of the case (botched robbery) and his connection to Roshelle to determine if he had a stronger motive to avenge Roshelle's death. The exclusion of the drive-by shooting evidence did not preclude the defense from presenting to the jury its third party culpability defense. Further, we agree with the trial court's assessment that "the evidence [was] overwhelming that the defendant did it." The only two eyewitnesses, which included Ardoin's own mother, told the police that Ardoin killed David. Those statements were corroborated by DNA evidence taken from the weapon that had been concealed in Ardoin's apartment. Accordingly, any error in the trial court's ruling would have been harmless under any standard.
In light of our conclusion that the evidence underlying Tino's 2015 convictions was more prejudicial than probative, we need not address the other issues raised on appeal, including the People's contention that Ardoin forfeited the claim and the parties' arguments on third-party culpability evidence and whether the proffered evidence would have confused or misled the jury, or consumed an undue amount of time.
3. Evidence of Tino's Displeasure with People Not Working Hard
Next, Ardoin argues the trial court erroneously excluded a statement Tino made purportedly expressing his unhappiness with David for his failure to "put in work," an apparent reference to his alleged lack of diligence to earn money from drug sales.
During hearings on the limine motions, defense counsel discussed examples of evidence supporting its third party culpability theory that Tino shot David, noting, "There's evidence that [Tino] had been angry at [David] before the shooting for not putting in enough work." That evidence was a statement Tino made to David-and which David later shared with his sister Alicia-that people were not putting in work for him. The prosecutor challenged the admissibility of such evidence, on the record, as irrelevant and hearsay. The prosecutor explained, "[T]hat statement attributed to [Tino] was made to [David] obviously, before his death, and [David] made a comment about that statement to his sister, Alicia . . . . before his death. So this was not a direct statement from [Tino] to someone who's testified. There's an intervening layer of hearsay." Having reviewed the witness transcripts, he further noted that the "statement was a more generic statement attributed to [Tino] by [David] to the effect of people, not specific to [David], but people weren't putting in work for [him] . . . . "
Defense counsel, who also reviewed the witness transcripts off record, responded with more context for the statement and explained they came from a conversation between David and his sister Alicia. Defense counsel further noted, however, that David's statement to Alicia "about [Tino] complaining about people - and he referred to those people as using the N word, N * * * * * - 'not putting in work' was part of a larger conversation that [David] had with his sister in regard to Tino being upset about N word people not putting in enough work which went into the fact that Tino is usually broke and that he would make statements that David . . . had money."
Defense counsel argued the evidence was relevant because it refuted the notion that Tino harbored no ill will towards David and may have even been upset with him. Defense counsel also argued the statements were non-hearsay because they reflected David's state of mind regarding Tino noting, "[W]e can infer that he had a fearful state of mind of Tino, that he was not trustful of Tino…"
The court excluded the statement as irrelevant and hearsay. Ardoin contends the court's decision deprived him of evidence "consistent with the defense theory . . . that the motive for the homicide was robbery, not revenge, and evidence tending in reasons to impeach [Tino's] testimony that his relationship with [David] was nothing but harmonious." He says excluding the evidence of their "business discord" portrayed Tino and David's relationship in a false light. He further adds that the evidence was admissible under various hearsay exceptions. We need not address most of these contentions, because the statement from Tino he sought to admit regarding the purported "drug-business discord" was irrelevant.
"Only relevant evidence is admissible at trial. (Citation.) . . . . [R]elevant evidence is evidence 'having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' Evidence is relevant if it tends '" 'logically, naturally, and by reasonable inference' to establish material facts such as identity, intent, or motive."' (Citation.)' "The trial court has considerable discretion in determining the relevance of evidence." '" (People v. Ka Yang (2021) 67 Cal.App.5th 1, 32.)
Here, Ardoin asserts that Tino's statement showed he "was unhappy with [David] for failing to 'put in work'" and sought to include such evidence to show there was "drug-business discord" between Tino and David which gave Tino a motive to kill David and disproved Tino's contentions the two had a close relationship. The record, however, does not support these claims. While arguing this in limine motion, both parties off the record reviewed Alicia's witness transcripts which relayed the instant conversation between Tino and David. The prosecutor clarified that Tino had made a "generic" statement about how "people" were not putting in work for him, without any specific reference to David not putting in work. Defense counsel did not dispute the prosecutor's characterization of the conversation and essentially agreed with it. In her rendition, she noted that Tino said he was "upset about N word people not putting in enough work . . ." Based on counsels' collective descriptions, nothing in Alicia's witness statement indicates Tino's comments were directed at David specifically, or that he ever referenced David by name as the one not working enough. Rather, Tino asserted only that unnamed people were not working enough. Moreover, there is nothing in the record indicating that David even worked for Tino, which further undermines Ardoin's assertion of business discord between the two specifically. Because the proffered evidence was not relevant, the trial court did not abuse its discretion in excluding it.
Ardoin disputes that Tino's statement was a generalized statement about others not putting in work. He says David's name was part of the statement, since it had been "part of a larger conversation revolving around the fact that [David] usually 'had money,' but [Tino] was 'usually broke.'" He says the conversation was "very illuminating" regarding the relationship between the two men, explained David got into the van that day to work, and contradicted Tino's trial testimony that there was no conflict between the two. We disagree. Nothing about the "larger conversation" indicated Tino's frustration at David specifically for a lack of diligence. David's connection to the conversation concerned only how much money he had, not his work ethic. Further, that Tino perceived David to always have money, while he did not, appears to counter Ardoin's argument that Tino believed David was not working hard enough, assuming those funds had been earned from selling drugs.
In any event, even if we assume the evidence was relevant and the trial court erred in excluding it, the error was harmless for the same reasons discussed above. (See ante.) In light of our conclusion that such evidence was not relevant, we need not address the other issues raised on appeal, such as Ardoin's contention that such evidence was not hearsay or the People's arguments that such evidence would have been confusing and misleading to the jury.
In addition to the exception to the hearsay rule Ardoin argued at trial, he argues for the first time on appeal for the admissibility of Tino's statements under additional exceptions to the hearsay rule. Like Ardoin's other arguments against hearsay, we do not address these given our conclusion the proffered evidence was not relevant. In addition, these particular claims are forfeited because they were not raised during trial. (See People v. Jones (2012) 54 Cal.4th 1, 61 [failure to make specific objection at trial forfeited claim on appeal].)
3. Roshelle Rumor Evidence
The last evidentiary ruling Ardoin challenges is the trial court's decision to allow the "Roshelle 'rumor' evidence" which Ardoin contends was "irrelevant and prejudicial hearsay [that] should not have been admitted in the instant case."
The prosecution's theory was that David was killed because of rumors that he had something to do with Ardoin's cousin Roshelle's killing eight years earlier, in 2008. During in limine proceedings, the prosecution stated it intended to introduce rumor evidence that David was responsible for the 2008 killing of Roshelle. According to the prosecution, the evidence showed there had been ongoing tension between Ardoin's family and David's family because of the persistence of the rumor of David's involvement in her death. The prosecution sought to introduce the rumor evidence to prove that David's purported involvement in Roshelle's death was well known within these families. Ardoin objected to the evidence as inadmissible hearsay and because he was 12 years old when Roshelle was killed and there was no evidence that he had known or been told Roshelle had been murdered. The court allowed the evidence.
At trial, Tino, David's father, David's sister Alicia, and Letta all testified they were aware of the rumor that David killed Roshelle. Tino stated that he never took any action against David because the rumors were untrue. David's father acknowledged he was aware of the rumor but professed not to believe it because David had told him he had nothing to do with. He also testified that Tino told him Ardoin referenced Roshelle before he shot his son. Alicia said that she had heard the rumor that a lot of people, including David, were responsible for Roshelle's death. Letta, too, acknowledged her awareness of the rumor. Meth also testified that both Tino and Letta told him shortly after David's murder that Ardoin may have shot him because he believed the rumor that David was involved in Roshelle's death. When Tino and Letta testified, however, they denied that they told police officers that they were discussing Roshelle before David's murder.
Ardoin argues the rumor evidence that David killed Roshelle was irrelevant and prejudicial hearsay that should not have been allowed. He says "acceptance of this evidence as motive was confusing and distracted jurors from their task of sorting out how motive played into the instant homicide." Ardoin further asserts this error cumulated with other errors to deprive him of a fair trial. We disagree.
As an initial matter, the Roshelle rumor evidence was not hearsay. "Hearsay is an out-of-court statement that is offered for the truth of the matter asserted, and is generally inadmissible." (People v. McCurdy (2014) 59 Cal.4th 1063, 1108.) Here, the rumor evidence was not hearsay because there is no indication that the prosecution sought to introduce it to prove that David had actually been involved in Roshelle's death.
We also reject Ardoin's assertion that the Roshelle rumor evidence was irrelevant. "Motive is always relevant in a criminal prosecution." (People v. Perez (1974) 42 Cal.App.3d 760, 767.) The Roshelle rumor evidence tended to establish the prosecution's theory that Ardoin killed David for his purported role in Roshelle's death. Ardoin contends that the rumor evidence "should have been placed on an equal footing" with Tino's "money complaints," which he says was "evidence that [Tino] was jealous of [David's] wealth" and which tended to establish the defense theory that David was killed as part of a conspiracy to rob him. Not so. There was eyewitness evidence that Ardoin invoked Roshelle's name prior to shooting David, conferring particular probative value on the rumor evidence. In contrast, as noted above, Tino's money complaints were not aimed at David specifically for his personal failure to work hard.
People v. McKinnon (2011) 52 Cal.4th 610 (McKinnon) is instructive as to the admissibility of the rumor evidence. In McKinnon, the prosecution's theory of the case was the defendant was a member of the Crips street gang and killed the victim, Martin, who was purportedly a member of the rival Bloods gang in retaliation for a Blood having killed a purported Crip named Scotty Ware more than a year before Martin's murder. (Id. at p. 653.) The prosecution was allowed to introduce gang-related evidence as motivation for the killing. One witness, a former gang member, testified that" 'the word out on the street was Scotty Ware was killed by a Blood'" and that he had spoken with both Bloods and Crips about Ware's death. (Id. at p. 654.) Another witness testified that "Ware was 'killed at a party, supposedly by a member of the Blood[s] gang.'" (Id. at pp. 654-655.) In response to the defendant's objection that there was no adequate foundation for the statements which were also inadmissible hearsay, the Supreme Court responded, "It is true that the information supplied by [the witnesses] about Ware's murder, and its gang implications, was apparently based on rumor and gossip. But the purpose of testimony about the 'word on the street' concerning the murder of 'Scotty Ware' was not to establish that this street gossip was true. [Citation.] Instead, this evidence was properly admissible for the relevant nonhearsay purpose of showing defendant had heard information about Ware's murder and its gang implications 'on the street,' that defendant believed what he had heard, and that he thus had reason, in his own mind, to kill Martin 'for Scotty.'" (Id. at p. 656.)
The Supreme Court's reasoning in McKinnon applies here as well. The prosecutor did not seek to admit the rumor evidence to prove the rumor that David was involved in Roshelle's death was true. Rather, it was introduced to show that Ardoin had heard and was aware of the rumor, which provided a motive for him to kill David. For this nonhearsay purpose, the evidence was properly admitted.
Ardoin seeks to distinguish McKinnon based on its gang context. In his view, the "word-on-the-street evidence" in McKinnon is only permissible where "a gang member is aware of such rumor, and likely motivated by it in that a gang-killing promotes a gang purpose." He refers to the ample other evidence in McKinnon which provided his gang identity and association with gang members. We are not persuaded that McKinnon is limited to gang cases. The Court observed that based on the witnesses' awareness of rumors that Ware (a Crip) had been killed by a Blood, "the jury could readily infer defendant's familiarity with the information about Ware was circulating 'on the street.'" (McKinnon, supra, 52 Cal.4th at p. 656.) Thus, it was used to help establish the McKinnon defendant's motive to kill Martin just as the prosecution sought to use the Roshelle rumor evidence to establish Ardoin's motive for killing David. While the rumor in McKinnon involved purported gang members, nothing in McKinnon's reasoning limited the admission of such rumor evidence to the gang context.
We also reject Ardoin's argument that the Roshelle rumor evidence misled and distracted jurors. The theory that Ardoin killed David because he believed David was involved in Roshelle's death was straightforward. Four separate witnesses were able to succinctly express their awareness of the rumor. It did not mislead, confuse, or distract the jurors.
In addition, even if we assume the trial court erroneously admitted the Roshelle rumor evidence, the error was harmless for the same reasons discussed above. (See ante.)
C. Instructional Error
Ardoin argues the trial court erred in refusing to give his requested pinpoint jury instruction supporting the defense theory of the case that someone else shot David.
"As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor." (Mathews v. United States (1988) 485 U.S. 58, 63.)" '[I]n appropriate circumstances' a trial court may be required to give a requested jury instruction that pinpoints a defense theory of the case by, among other things, relating the reasonable doubt standard of proof to particular elements of the crime charged. [Citations.] But a trial court need not give a pinpoint instruction if it is argumentative [citation], merely duplicates other instructions [citation], or is not supported by substantial evidence [citation]. An instruction that does no more than affirm that the prosecution must prove a particular element of a charged offense beyond a reasonable doubt merely duplicates the standard instructions defining the charged offense and explaining the prosecution's burden to prove guilt beyond a reasonable doubt." (People v. Bolden (2002) 29 Cal.4th 515, 558-559.) We review a trial court's decision not to give a pinpoint instruction for an abuse of discretion. (People v. Mora and Rangel (2018) 5 Cal.5th 442, 497.) "The failure to instruct the jury on an appropriate pinpoint instruction on the defense's theory of the case is reviewed for harmless error under People v. Watson (1956) 46 Cal.2d 818, 836." (People v. Earp (1999) 20 Cal.4th 826, 887 (Earp).)
Ardoin requested the following pinpoint instruction for his third party culpability defense: "You have heard evidence suggesting that [Tino] may have committed the offenses charged against Marshon Ardoin in this case. The defense is not required to prove [Tino's] guilt. It is the prosecution that has the burden of proving each defendant in this trial guilty beyond a reasonable doubt. Evidence that another person committed the charged offenses may by itself leave you with a reasonable doubt as to the defendant's guilt. After considering all the evidence, including any evidence that another person committed the offenses, you have a reasonable doubt that the defendant committed the offense, you must find him not guilty." The instruction was not given.
Ardoin argues the pinpoint instruction should have been given because it was the defense theory of the case and supported by substantial evidence.
Our Supreme Court's decision in People v. Hartsch (2010) 49 Cal.4th 472 (Hartsch) is instructive. There, the defendant proposed two instructions related to third party culpability. The first instruction stated, in pertinent part:" 'If the evidence presented in this case convinces you beyond a reasonable doubt that the defendant is guilty, you should so find, even though you may believe that one or more other persons are also guilty. [¶] On the other hand, if you entertain a reasonable doubt of the defendant's guilt after an impartial consideration of the evidence presented in the case, including any evidence of the guilt of another person or persons, it is your duty to find the defendant not guilty.'" (Id. at p. 504.) The second proposed instruction stated:" 'Evidence has been presented during the course of this trial indicating or tending to prove that someone other than the defendant committed, or may have had a motive and opportunity to commit, the offense(s) charged. In this regard, it is not required that defendant prove this fact beyond a reasonable doubt. [¶] The weight and significance of such evidence are matters for your determination. If after consideration of all of the evidence presented, you have a reasonable doubt that the defendant committed the offense(s) charged, you must give the defendant the benefit of the doubt and find him not guilty.'" (Ibid.)
The Court explained, "We have noted that similar instructions add little to the standard instruction on reasonable doubt. [Citation.] We have also held that even if such instructions properly pinpoint the theory of third party liability, their omission is not prejudicial because the reasonable doubt instructions give defendants ample opportunity to impress upon the jury that evidence of another party's liability must be considered in weighing whether the prosecution has met its burden of proof." (Hartsch, supra, 49 Cal.4th at p. 504.) It observed that the first proposed instruction simply restated the reasonable doubt standard in connection with the possibility that one or more others might be guilty parties, and the second one was unduly argumentative. (Ibid.) The Court concluded there was no prejudicial error in refusing to give the requested instructions. (Id. at pp. 500-504.)
So, too, here. The trial court gave several instructions which explained the prosecution's burden of proof and enabled the jury to evaluate Ardoin's third-party culpability theory. It gave the CALCRIM 220 instruction which advised jurors of the presumption of innocence and the prosecutor's burden of proving guilt beyond a reasonable doubt. It also gave CALCRIM Nos. 355 and 359, which reiterated the prosecution's burden of proving Ardoin's guilt beyond a reasonable doubt. CALCRIM No. 334, also given, advised jurors, "Before you may consider the statements or testimony of [Tino] as evidence against the defendant Marshon Ardoin regarding the crime of murder, you must decide whether [Tino] was an accomplice to that crime . . . . If you decide that a declarant or witness was an accomplice, then you may not convict the defendant of murder based on his or her statement or testimony alone." Ardoin's proposed pinpoint instruction added little to these instructions, which sufficiently allowed Ardoin the opportunity to impress upon jurors that the evidence of another person's culpability must be considered in weighing whether the prosecution has met its burden of proof. As the proposed instruction only restated the reasonable doubt standard in connection with this possibility that someone else, namely Tino, might have been the shooter, there is no reasonable likelihood that giving the instruction would have produced a verdict more favorable to Ardoin.
Ardoin argues that his proposed instruction was not a simple restatement of the CALCRIM 220 reasonable doubt standard. He asserts, "[I]t directed jurors to the issue of who it was that fired the shots killing [David] and informed jurors that the burden of proving who it was that fired the shots was on the prosecution to show beyond reasonable doubt." In his view, the requested instruction directed jurors to identification "[e]vidence that another person committed the charged offenses" which left reasonable doubt as to Ardoin's guilt. Even if the court's given instructions did not expressly articulate Ardoin's defense theory, they sufficiently set forth the beyond-a-reasonable doubt standard of proof. (See Bolden, supra, 29 Cal.4th at p. 559; Hartsch, supra, 49 Cal.4th at p. 504 ["the reasonable doubt instructions give defendants ample opportunity to impress upon the jury that evidence of another party's liability must be considered in weighing whether the prosecution has met its burden of proof"].)
Ardoin's effort to distinguish Hartsch is also unavailing. He contends that the Supreme Court decided Hartsch because the instructions there were argumentative, but his requested instruction was not. We disagree. Ardoin disregards Hartsch's full reasoning, which considered the redundancy of both instructions. (Id. at p. 504 ["We have noted that similar instructions add little to the standard instruction on reasonable doubt."].)
Even if the trial court erred in refusing to provide Ardoin's requested pinpoint instruction, such error would have been harmless. In cases where the standard instruction on reasonable doubt is given and the defense was allowed to argue that a third party was culpable, the presumed error in omitting a pinpoint instruction has been considered harmless. (See, e.g., Hartsch, supra, 49 Cal.4th at p. 504; Earp, supra, 20 Cal.4th at p. 887 [the defendant suffered no prejudice from the trial court's refusal to give third party culpability instruction because the jury was instructed on the prosecution's burden of proof and the jury knew from defense counsel's argument the defense theory was someone other than the defendant committed the crimes].) As the Supreme Court noted, "It is hardly a difficult concept for the jury to grasp that acquittal is required if there is reasonable doubt as to whether someone else committed the charged crimes." (Hartsch, supra, 49 Cal.4th at p. 504.) Here, as explained, the standard reasonable doubt instruction was given and the defense counsel presented Ardoin's theory of third party culpability at length. The omission of the pinpoint instruction, if error, could not have affected the verdict.
D. Prosecutorial Error
Ardoin argues the prosecutor committed misconduct during closing argument by misstating the presumption of innocence and diluting the burden of proof to the jury. He claims the prosecutor misled jurors by suggesting that they could compare the parties' competing theories and then pick the one that seemed the most reasonable.
Prosecutorial "error occurs when a prosecutor misstates the law . . . For such remarks to constitute error, however, it is not enough that the remarks could be construed as improper." (People v. Potts (2019) 6 Cal.5th 1012, 1036.) A prosecutor's misconduct violates due process if it infects a trial with unfairness. (People v. Harrison (2005) 35 Cal.4th 208, 242.) Less egregious conduct may nonetheless constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to attempt to persuade the court or jury. (Ibid.) If a prosecutorial misconduct claim is based on the prosecutor's arguments to the jury, we consider how the statement would, or could, have been understood by a reasonable juror in the context of the entire argument and determine whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. (People v. Dennis (1998) 17 Cal.4th 468, 522.) "When attacking the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.'" (People v. Centeno (2014) 60 Cal.4th 659, 667 (Centeno).)
We review de novo a defendant's claim of prosecutorial misconduct. (People v. Uribe (2011) 199 Cal.App.4th 836, 860.) "Even where a defendant shows prosecutorial misconduct occurred, reversal is not required unless the defendant can show he suffered prejudice. [Citation.] Error with respect to prosecutorial misconduct is evaluated under Chapman v. California (1967) 386 U.S. 18, to the extent federal constitutional rights are implicated, and People v. Watson (1956) 46 Cal.2d 818, if only state law issues were involved. [Citation.] Chapman is implicated if the prosecutor's conduct renders the trial so fundamentally unfair that due process is violated. [Citations.] Watson applies where the prosecutor uses '" '" 'deceptive or reprehensible methods to attempt to persuade either the court or the jury.'" '" '" (People v. Fernandez (2013) 216 Cal.App.4th 540, 564.)
During closing argument, the prosecutor addressed Ardoin's defense theory that Tino was the shooter: "I expect that the defense will make certain arguments. One is . . . they will ask you to believe that [Tino] is the person who did this[, ] not the defendant." The prosecutor then explained: "There's [a] concept that says that if you have two different competing explanations for something and one of them requires you to assume and assume and assume and conjecture about things for which there's no evidence, the more you have to make those assumptions, the more likely it is you're getting away from the true and correct explanation. This is referred to [as] Occam's razor and it's sometimes simplified or oversimplified as the simplest explanation tends to be the right one. And this is not just something that is the province of philosophers and mathematicians. One of the things that you may have heard of . . . was this phrase used by doctors in emergency rooms 'When you hear hoofbeats, think of horses not zebras.' Again, use your common sense to separate a logical, if mundane, explanation from a fanciful one that requires certain leaps of logic." The prosecutor asserted the jurors should look upon the following as "zebras:" the idea that Tino had a motive to kill David; the money Alicia saw that was not found meant Tino stole it; the theory that David was pistol-whipped; that Ardoin himself had no motive to kill David; that Letta was kidnapped and intimidated into lying about her son's involvement. Invoking Occam's razor, the prosecutor continued, "So, using Occam's razor, using your common sense, either all of these happened . . . [¶ . . . [¶] . . . or the defendant shot and killed [David] from the back of the van, . . . got out with the gun, hid the gun, was arrested, and then the gun was found with his DNA, and then his prints on the bag."
Ardoin argues that the "comparative methodology" presented by the prosecution "amounts to the more-likely-than-not standard and is inaccurate and misleading when used to explain the beyond reasonable-doubt standard," which he contends was diluted by the argument. He also says the prosecution's argument "think horses, not zebras" was a "far cry from the beyond-reasonable-doubt standard." In addition, Ardoin views the prosecution's reference to Occam's razor as improper, stating it "is a form of investigative analysis . . . not proof." Overall, Ardoin contends the "prosecutor . . . left the jury with the impression that so long as her interpretation of the evidence was reasonable, the People had met their burden." We disagree.
The prosecutor did not engage in any misconduct in his closing argument. The prosecutor's argument was simply a counterpoint to the defense argument that Tino shot David. By invoking the competing theories of the case, the prosecution did not urge the jury to convict Ardoin only if it found the prosecution's theory more convincing than the defense theory, nor did the prosecution muddle the standard of review. As an initial matter, the prosecutor expressly invoked the proof beyond a reasonable doubt standard in summation, not a lesser burden.
Further, in telling jurors to "think horses, not zebras" when they hear hoofbeats, the prosecutor was merely conveying that the jurors should use their common sense to determine the facts, which is entirely permissible. (See CALCRIM No. 226 ["In deciding whether testimony is true and accurate, use your common sense and experience."].) The reference to Occam's razor was simply used to illustrate that the defense theory was less than reasonable. It was invoked in the context of a fairly standard argument seeking to undermine the credibility and reasonableness of the defense version of events, which is also entirely permissible. (See Centeno, supra, 60 Cal.4th at p. 672 ["It is permissible to argue that the jury may reject impossible or unreasonable interpretations of the evidence and to so characterize a defense theory."].)
Even if we assume the prosecutor's argument erroneously misstated the presumption of innocence and diluted the burden of proof, the error would have been harmless under either the Chapman or Watson standard. His argument did not render the trial so fundamentally unfair that it triggered the Chapman standard, nor is it reasonably probable that a more favorable result would have been reached absent alleged objectionable argument. The jury was given the following instruction by the trial court: "You must follow the law as I explain it to you even if you disagree with it. If you believe that the attorneys comments on the law conflict with my instructions, you must follow my instructions." As noted earlier, the trial court also instructed the jury with the standard CALCRIM 220 instruction. Accordingly, the jury was clearly instructed that Ardoin was presumed innocent and that the People bore the burden to prove Ardoin's guilt beyond a reasonable doubt, and we presume that the jury followed the court's instructions. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)
E. Cumulative Error
Lastly, Ardoin contends there he was deprived of a fair trial due to the "cumulative effect of evidentiary and instructional error." "Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.)" '[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.'" (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) "Under the 'cumulative error' doctrine, we reverse the judgment if there is a 'reasonable possibility' that the jury would have reached a result more favorable to defendant absent a combination of errors. [Citations.] 'The "litmus test" for cumulative error "is whether defendant received due process and a fair trial." '" (People v. Poletti (2015) 240 Cal.App.4th 1191, 1216- 1217.) We reject Ardoin's contention that a "cumulation of errors deprived [him] of a fair trial as to whether he was, in fact, the person who shot [David], and whether proof was provided." We have considered each of Ardoin's arguments and have found no errors that individually or collectively deprived him of a fair trial.
Disposition
The judgment is affirmed.
WE CONCUR: Tucher, P.J., Rodríguez, J.