Opinion
D073852
10-10-2018
THE PEOPLE, Plaintiff and Respondent, v. RUBEN ARRIOLA, Defendant and Appellant.
Jamie L. Popper, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting, Peter Quon, Jr. and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. FSB 1302203) APPEAL from a judgment of the Superior Court of San Bernardino County, Steve C. Malone, Judge. Sentenced vacated; remanded for resentencing. Jamie L. Popper, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steven T. Oetting, Peter Quon, Jr. and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant Ruben Arriola appeals from a judgment of conviction and sentence after a jury trial. Arriola was convicted of one count of second degree murder, one count of assault with a firearm as to a second victim, and kidnapping and making criminal threats to a third victim, as a result of a series of incidents that occurred on May 23, 2013.
On appeal, Arriola contends (1) that the trial court erred in failing to instruct the jury that a principal witness's testimony required corroboration if the jury determined that she was an accomplice rather than a victim; (2) that the trial court erred in failing to instruct the jury that an in-custody informant's testimony could not be corroborated by an accomplice's testimony; (3) that defense counsel rendered ineffective assistance in failing to adequately impeach a witness with evidence that the witness had a conviction for carrying a firearm; (4) that the trial court erred and violated Arriola's federal constitutional right to confront witnesses by precluding the admission of evidence to the effect that a prosecution witness may have believed, generally, that providing information leading to a conviction could result in a reward; (5) that the prosecutor committed misconduct during rebuttal argument by referring to facts not in evidence; (6) that even if each identified error was not prejudicial on its own, the cumulative effect of the errors requires reversal, and (7) that he is entitled to resentencing pursuant to Senate Bill No. 620, which allows a trial court to exercise discretion to strike or dismiss firearm enhancements.
We conclude that Arriola's contentions are without merit, with the exception of his contention pertaining to his entitlement to resentencing under Senate Bill No. 620. The People concede, and we agree, that Arriola is entitled to have his sentence vacated and to have his case remanded for resentencing to allow the trial court to exercise its discretion to strike or dismiss the firearm enhancements pursuant to a recent statutory change. We therefore vacate Arriola's sentence and remand to the trial court for resentencing. In all other respects we affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. Events prior to May 23, 2013
In May 2013, Arriola lived with his wife and children in a residence located at 444 East Norman Road. On the Saturday before May 23, 2013, Arriola's wife and children moved out. Arriola's parents and sister helped his wife and children move out. In the process, they loaded a U-Haul truck with furniture. Arriola argued with his father in the yard, and at one point could be heard yelling, "You're not taking my girls." Arriola's neighbor, J. Morales, saw Arriola standing on Arriola's porch that day and on the following day, as well.
2. The events of May 23, 2013
In the early morning of May 23, 2013, around 3:30 a.m., Fernando Navarrette called his daughter C. Navarrette and asked her to come see him at the residence that he was remodeling, at 464 East Norman Road. C. had been partying and had consumed a lot of alcohol, but she got a ride from a friend to visit her father. Upon arriving, C. called her father from the friend's parked car. Navarrette came outside and walked toward the car, accompanied by Arriola. Arriola appeared angry and was talking with Navarrette. C. believed that Arriola's anger was directed at her father. C. also thought that something was wrong because Navarrette looked stressed and was not smiling as he typically did. C. sensed that Arriola was going through a tough time and told him, "Remember, God loves you."
This property apparently had multiple buildings on it, as well as some trailers, a car dealership, and even some tents; various witnesses described a number of structures, housing units, and trailers being present on the property.
After Arriola left, C. accompanied Navarrette to the unit that he was remodeling. Navarrette showed C. that he was in the process of scraping off the tile floor in order to install new tile.
Later that morning, J. Morales left his residence with his five-year-old son to walk to a convenience store to get something to drink. Arriola was standing in his own yard by the front gate. Arriola called for Morales to come over, indicating that he wanted to speak with Morales. Arriola opened the gate and led Morales and his son to a shed. They entered the shed, and Morales sat down. Arriola pulled out a .38 caliber revolver with a six-inch barrel, cocked the hammer back and pointed it at Morales's face. Arriola told Morales's son to step out of the shed. When the child did so, Arriola closed the door. Arriola continued to point the gun at Morales and asked, "Where's my wife and kids at?" Morales responded, "I don't know." Arriola moved the gun closer to Morales's face and said, "You know something." Morales told Arriola that he did not know anything.
Arriola continued to point the gun at Morales and said something about devil worshipers living next door. Arriola "kept looking like he was getting madder and madder," so Morales attempted to talk with him "like a real friend." Morales told Arriola that Arriola needed help and expressed his concern that Arriola would "kill [him] for no reason." Morales repeated to Arriola that he did not know where Arriola's wife and children were. He said that all he knew was that a number of days prior to this incident, he had seen Arriola's wife and children take furniture in a U-Haul truck. Arriola began to cry and put the gun down.
Arriola asked Morales to help him find his wife and children, and indicated that he believed that they were somewhere in the neighborhood because he could "hear them yelling." Arriola also told Morales that "he knows about this guy being a rapist and a child killer and stuff like that." Morales tried to tell Arriola that "there's nobody like that around here," but Arriola "kept thinking that."
At some point, Arriola picked up the revolver again, cocked the hammer back, and set it on his lap while he continued to question Morales. Morales told Arriola that he would return to talk with Arriola later that day after attending church. Arriola broke down crying. He tried to give Morales some money, and when Morales balked at accepting it, Arriola told him that if he did not take the money, Arriola would think that Morales had something to do with Arriola's wife and children leaving. The two men then walked out of the shed, and Arriola said to Morales, "I'm sorry, man. I'm sorry. Are you all right?"
Morales stood with Arriola in the yard for approximately ten minutes. He left when Morales's girlfriend and their daughter approached. Arriola thought that Morales's crying daughter was his own daughter until Morales called his girlfriend and daughter over to show Arriola that the girl was not Arriola's daughter. Arriola then turned around and walked toward his porch. Morales said that he would check next door for information for Arriola regarding his wife and children. Morales went next door, where he spoke with J. Perez. Morales told Perez to "lock the doors and don't come out 'cause [Arriola] is — he was — he was trippin'." He also asked Perez whether he had seen Arriola's wife and children or knew why they had left. Perez had not seen Arriola's wife and children.
After this conversation, Morales and his family went to a nearby worksite and then proceeded to a local church that provided sack lunches to area residents, in order to eat lunch there. Morales's uncle, Navarrette, was at the church for the lunch; Navarrette played with Morales's daughter. Navarrette stayed at the church after Morales left to return to work. Navarrette's sister, N. Watts, and his brother L. Navarrette, were also at the church for lunch.
At approximately noon, F. Aragonez was walking toward where Navarrette was staying. Arriola, who had been standing in his yard, asked Aragonez to "come here." Aragonez walked to Arriola's property and the two entered his home. Arriola sat on a couch and packed a pipe with methamphetamine. Arriola then handed the pipe and a lighter to Aragonez, and she took a hit. It was hot that day, and she asked Arriola whether he had something to drink. Arriola went to the kitchen, and Aragonez took a second hit on the pipe. Arriola returned with a bottle of light beer, which he gave to Aragonez. At some point, Aragonez handed the pipe and lighter to Arriola and said that she had to leave.
Aragonez walked out the door, and Arriola came outside. Aragonez said, "Look, homeboy, whatever you're going through just pray." Arriola went back inside his home, and returned holding a Bible. He said, "Okay. Can we get [a] prayer?" Arriola handed Aragonez the Bible and guided her to a gated area on the property of the residence next door. Arriola led Aragonez to a trailer where R. Shalosky lived. Shalosky declined to pray with Aragonez and Arriola when Aragonez asked if he would pray with them. Aragonez asked him whether he had seen Navarrette, but he had not.
Arriola and Aragonez then went to the residence that Navarrette was remodeling. Aragonez looked inside and saw Navarrette sitting on a chair; he was looking at the floor. Aragonez announced her presence and told Navarrette that Arriola was "having some troubles." She indicated that Shalosky would not pray with them, and Navarrette said that he would pray. Aragonez had the Bible in her hand and stepped in front of Navarrette. Arriola then entered the residence and told Aragonez to read a scripture verse from the Bible. Aragonez said that she thought they were going to pray, and Arriola said, "Then just pray." Arriola had his hands inside the sweatshirt that he was wearing.
Aragonez concluded the prayer, and Arriola and Navarrette said, "Amen." Arriola then moved closer to Navarrette, lifted up his hand, pointed a revolver and fired a single shot at Navarrette's left temple. Aragonez saw Navarrette's eyes roll back; she panicked, and her legs began shaking. Arriola pointed the gun at her and said, "Come on. Let's go."
Arriola and Aragonez left the residence and ran to a gate and fence. Arriola told Aragonez to jump, but then pulled her over the fence. In the process of going over the fence, Aragonez scraped her leg and one of her sandals got stuck in the fence. Arriola pulled Aragonez by her shirt across a field to his residence. Aragonez was having trouble seeing because her "eyes were real blurry from crying." Arriola pulled Aragonez inside his residence. He told Aragonez to put down the Bible and stop crying. Aragonez sat down and wiped her tears. Arriola placed the gun and some bullets in her hands.
A short time later, a gray or silver station wagon or SUV parked in front of Arriola's residence. Arriola took the gun and bullets from Aragonez's hands and "vanishe[d] and c[a]me[ ] back." Arriola's mother, sister and the sister's boyfriend got out of the vehicle and entered the residence. Arriola's sister told him, "[O]kay, we're going to take you to some kind of rehab." Aragonez inferred that this had been planned earlier because Arriola "already had his bags packed." Arriola and his family members took his belongings and started putting things in the vehicle. They appeared to be rushing. Arriola told his mother that Aragonez was going with them; Arriola's mother noticed that Aragonez had only one shoe. After everyone was in the car and they were driving away, someone said, "We left just in the nick of time." Aragonez noticed police cars, an ambulance and other people arriving at the scene of the shooting. The family stopped at a liquor store, and Arriola's mother told Aragonez to get out of the vehicle. Aragonez followed Arriola's family members into the store. After purchasing something, possibly cigarettes, the family got back into the vehicle. Arriola handed Aragonez three cigarettes. He told her that "if [she] were to say anything, that he would find [her] and get ahold of [her] and kill [her.]" He then said, "Tell Cyclone I said to take care of you." Arriola got back into the car and he and the others drove off, leaving Aragonez in front of the liquor store. Aragonez was scared and did not know whether Arriola was watching her, so she "rushed to" her aunt's house, which was approximately three blocks away, and "hid behind a bush" in a nearby yard. She eventually boarded a bus to travel back to "[her] area," where she climbed into the attic of an abandoned house and stayed for three days.
When she emerged, Aragonez called 9-1-1. Aragonez spoke with a detective, and, among other things, told the detective that during the ride to the liquor store, Arriola told his mother that Navarrette had molested and raped children in the residence that he was remodeling.
After the shooting, a man who owns a car dealership located at the back of 464 East Norman Road walked by the residence that Navarrette had been remodeling. The man's daughter owned the residence. The man entered the residence and saw Navarrette sitting on a chair with blood flowing out of the left side of his head. The man also saw blood on the wall. A mechanic from the car dealership also entered the residence, and he checked on Navarrette. Navarrette's eyes were closed, and there was a hole in his left temple. The back of Navarrette's head was touching the wall. He was breathing very fast but was not speaking. The mechanic called 9-1-1.
The mechanic walked to a nearby trailer and woke up J. Perez, who is the son of the mechanic's girlfriend. The mechanic wanted Perez to translate for him on his call with the 9-1-1- dispatcher. While Perez was on the phone with the dispatcher, he followed the mechanic back to where Navarrette was. Perez entered the residence and saw Navarrette sitting on a chair, leaning to his left and bleeding from his head. Perez described what he saw to the dispatcher, and the police arrived approximately five minutes later.
After paramedics left with Navarrette, police officers entered the residence to investigate and saw blood on the wall and blood and brain matter on the floor. Navarrette's cell phone was on the floor and his wallet and identification were on the kitchen counter. There was nothing inside the wallet.
A police officer drove to Arriola's parents' home to look for him. While in the area of their home, the officer saw someone matching Arriola's description wearing a "blue muscle shirt and dark shorts or pants," walking near a man and a woman. The man who matched Arriola's description had his hand in his pocket, which "raised [the officer's] awareness." As the officer made a U-turn, he lost sight of the man as a black car drove by. The officer backed up his patrol car and asked the man and woman whether they knew the other man who had been with them. The woman responded that the man was her son, Ruben Arriola. She also indicated that Arriola "was upset about something." The officer drove away. A short time later, he spotted the black car stopped at a traffic light. He pulled up next to the car and looked into the car. The sole occupant of the car was a woman. The officer then looked in his rearview mirror and saw Arriola walking over a bridge at a park; the officer watched as Arriola took off his shirt and appeared to throw something off of the bridge.
Arriola later told the officer that he had thrown away a cigarette.
The officer parked his patrol car, got out and drew his weapon. He ordered Arriola to get down on the ground and placed him under arrest.
3. The testimony of in-custody informant Michael Lopez
After Arriola was arrested, he met Michael Lopez in the Administrative Segregation unit at the West Valley Detention Center. Arriola and Lopez were in adjacent cells. Lopez testified that during their time in adjacent cells, Arriola told Lopez that he had murdered Navarrette by shooting him in the head with a .38 caliber gun. Arriola described going to the location of the murder with a woman named, "Fabiola," and shooting Navarrette on the left side of his head. Lopez testified that Arriola told him, "She set him up. She set [Navarrette] up so [Arriola] could murder him." Arriola told Lopez that Navarrette was sitting down in the kitchen reading the newspaper when Arriola shot him a single time. Arriola told Lopez that he searched Navarrette's pockets, took out his wallet, went through it, and left it on the kitchen counter. Arriola then left. He placed some .38 caliber bullets underneath a couch in his home; Arriola told Lopez that the police had recovered these bullets. Arriola said that he murdered Navarrette because Navarrette was "going around burning people in his neighborhood," which Lopez took to mean "not paying for drugs or something" or having "bad debts," and also because Arriola believed that Navarrette was a sex offender.
"Fabiola" is not Aragonez's first name, although her name does begin with an "F."
At trial, Lopez also testified that he had met Aragonez on a correctional bus while being transported. According to Lopez, while he was on the bus, he and Aragonez had a conversation in which "[s]he said that she felt bad for setting up her uncle, and that if I could help her get out by getting up here and lying against [Arriola]." Lopez testified, "She said that she set him up. She was there, she set him up. She was there when [Arriola] shot him." Lopez said that Aragonez told him that Arriola had shot Navarrette "over drugs." Lopez added that he had written a letter to the District Attorney about his conversation with Aragonez hours after he spoke with her.
The prosecutor elicited that Lopez had attempted to speak to the district attorney's office regarding at least 14 other individuals, to provide information about their purported criminal activities. Lopez also conceded that he had been convicted of a third strike residential burglary offense and that it would "be fair to say [he is] a very desperate man."
4. Autopsy evidence
The forensic pathologist who conducted Navarrette's autopsy recovered a .38 caliber bullet fragment from the right rear side of his head. The entry wound was on the left side of Navarrette's head, above his left ear. The bullet traveled in a slightly downward direction, which was consistent with Arriola having been standing while shooting Navarrette while he was seated. B. Procedural background
The San Bernardino County District Attorney charged Arriola with the murder of Navarrette (Pen. Code, § 187, subd. (a); count 1); assault with a firearm as to Morales (§ 245, subd. (a)(2); count 2); kidnapping Aragonez (§ 207, subd. (a); count 3); and making criminal threats to Aragonez (§ 422; count 4). It was further alleged with respect to count 1 that Arriola personally and intentionally discharged a firearm (§ 12022.53, subds. (b), (c) & (d)). With respect to counts 2, 3 and 4, the information alleged that Arriola had personally used a firearm in the commission of those offenses (count 2: § 12022.5, subds. (a) & (d); count 3: § 12022.53, subd. (b); count 4: §§ 1203.06, subd. (a)(1) & 12022.5, subd. (a)).
Further statutory references are to the Penal Code unless otherwise indicated.
A jury found Arriola guilty of second degree murder, a lesser included offense of the charge in count 1. The jury also found Arriola guilty of assault with a firearm as to Morales, and kidnapping and making criminal threats to Aragonez.
The jury found true that Arriola personally used and intentionally discharged a firearm in committing the second degree murder of Navarrette, and that he personally used a firearm in the assault against Morales. The jury found not true the allegation that Arriola personally used a firearm with respect to the kidnapping and criminal threats counts.
The trial court sentenced Arriola to an aggregate prison term of nine years plus consecutive indeterminate terms of 15 years to life and 25 years to life.
Arriola filed a timely notice of appeal.
III.
DISCUSSION
A. The trial court was not required to instruct the jury that Aragonez's testimony required corroboration
Although Arriola did not request that the trial court instruct the jury with an accomplice instruction with respect to Aragonez, on appeal he contends that the trial court prejudicially erred by not sua sponte instructing that if Aragonez was an accomplice, the jury was not to consider her testimony unless it was corroborated. Arriola bases his appellate contention on the fact that in-custody informant Lopez testified to the effect "that Aragonez set up [Navarrette] so Arriola could shoot him." We conclude that Arriola's contention is without merit because the evidence did not warrant the giving of CALCRIM No. 334, regarding corroboration of accomplice testimony. Further, even if such an instruction were required, there was sufficient corroborating evidence of Aragonez's testimony such that any presumed failure to provide the instruction would be harmless.
1. Legal Standards
Section 1111 establishes that "[a] conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." The requirement that accomplice testimony be corroborated is an exception to the substantial evidence rule. (People v. Romero and Self (2015) 62 Cal.4th 1, 32.) " ' "Whether someone is an accomplice is ordinarily a question of fact for the jury; only if there is no reasonable dispute as to the facts or the inferences to be drawn from the facts may a trial court instruct a jury that a witness is an accomplice as a matter of law." ' [Citation.] When a person is not an accomplice as a matter of law, a defendant has the burden of proving by a preponderance of the evidence that a witness was an accomplice in the crime charged against the defendant" before corroboration is required under section 1111. (People v. Rangel (2016) 62 Cal.4th 1192, 1222 (Rangel), italics added.)
The corroboration requirement of section 1111 has "no bearing on the prosecution's proof of any element of the charged crime" and "there is no constitutional impediment to placing on a defendant the burden of proving, by a preponderance of the evidence, a witnesses' status as an accomplice." (People v. Frye (1998) 18 Cal.4th 894, 968.) "Courts have uniformly held that it is proper to allocate to the defendant the burden of proving that a witness is an accomplice." (Id. at p. 969.)
"If sufficient evidence is presented at trial to justify the conclusion that a witness is an accomplice, the trial court must so instruct the jury, even in the absence of a request." (People v. Brown (2003) 31 Cal.4th 518, 555.) "Because the omitted instruction is based on section 1111, the asserted error is one of state law, subject to the reasonable probability standard of harmless error under People v. Watson (1956) 46 Cal.2d 818, 836-837." (People v. Whisenhunt (2008) 44 Cal.4th 174, 214 (Whisenhunt); see also People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 304.)
2. Analysis
Aragonez was named as the victim with respect to the kidnapping and criminal threats charged in counts 3 and 4. An accomplice is "one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." (§ 1111.) "This definition encompasses all principals to the crime [citation], including aiders and abettors and coconspirators." (People v. Stankewitz (1990) 51 Cal.3d 72, 90.) "[A]n aider and abettor [must] act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense." (People v. Beeman (1984) 35 Cal.3d 547, 560.) "An accomplice must act 'with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.' [Citation.]" (People v. Clark (2016) 63 Cal.4th 522, 606.)
Arriola contends that Lopez's testimony is evidence from which one could infer that Aragonez was an accomplice. For example, after Lopez testified that Arriola told him that he shot Navarrette on the left side of Navarrette's head, the following exchange took place:
"Q: Okay. What did [Arriola] tell -- how did he describe that happening?
"A: He told me that he went there with a female named Fabiola. I think he called her Fabiola. She set [Navarrette] up. She set Navarrette up so [Arriola] could murder him.
"Q: What did he tell you [he] did?
"A: He said he went into the house with her. They had a confrontation. He walked up to him and just shot him in the head while he was reading the paper."
Lopez's testimony that Arriola told him that Aragonez "set up" Navarrette does not constitute evidence that Aragonez was an accomplice. Specifically, Lopez's statement about Arriola's comments fails to establish that Aragonez knew that Arriola was going to shoot Navarrette and that she shared his intent. When considered in isolation, Lopez's statement about what Aragonez purportedly said to him—i.e., "that Aragonez set up [Navarrette] so Arriola could murder him"—could be taken to mean that Aragonez knew what Arriola intended to do and intentionally set up Navarrette to be killed. However, Arriola did not present any evidence that the statement could or should be understood in this way, and other evidence suggests that if Aragonez did say something to this effect to Lopez, her comments did not indicate that she actually shared Arriola's intent to kill Navarrette. For example, Lopez also testified that during the trial in this case, he was transported on a bus on which Aragonez was also being transported. According to Lopez, while he was on the bus, he and Aragonez had a conversation in which "[s]he said that she felt bad for setting up her uncle, and that if I could help her get out by getting up here and lying against [Arriola]." Lopez later testified, "She said that she set him up. She was there, she set him up. She was there when [Arriola] shot him." Lopez did not clarify, however, what he meant by the phrase "set up," and specifically did not say that Aragonez indicated in any way that she knew that Arriola intended to shoot Navarrette. Aragonez's comments could have meant any number of things, including that she felt guilt or remorse for having provided Arriola with access to Navarrette, whom she considered to be her "uncle," or that she had "set up" Navarrette for a drug deal. Indeed, during other portions of his testimony, Lopez indicated that Aragonez had told him only that she had been present when Arriola shot Navarrette.
Aragonez testified that Navarrette was her "uncle," but other members of Navarrette's family testified that although they had previously believed Aragonez was related to their family, they later "found out she wasn't."
Lopez made references in his testimony to it being a "dope deal," that it involved "an eight ball" of "weed or dope," and that Navarrette was "only selling" drugs, not doing them.
Further, the vast majority of the evidence regarding Aragonez demonstrated that she was a victim of Arriola's, not an accomplice. For example, at trial, the detective who interviewed Aragonez testified that Aragonez had stated that she was afraid of Arriola and had said that she could not understand why Arriola would do something like that to her "uncle." Aragonez told the detective that she asked Arriola why he had shot Navarrette, but Arriola never provided an explanation; instead, he looked at her with rage. Further, Aragonez testified that it was immediately after she finished her prayer, and both Arriola and Navarrette had said, "amen," that Arriola pulled out a gun and shot Navarrette in the left temple.
Lopez's testimony does not indicate that Aragonez knew or should have known that Arriola intended to shoot Navarrette after the group prayed. Further, given the lack of clarity in Lopez's comments about what Aragonez said, Lopez's testimony simply was not sufficient to support a determination that it was more likely than not that Aragonez was an accomplice, particularly in light of all of the other evidence that demonstrated that Aragonez was in fact a victim.
Even if we were to assume for purposes of argument that an accomplice instruction was required, Arriola cannot demonstrate that he suffered prejudice from the lack of such an instruction because there is sufficient corroborative evidence to support Aragonez's testimony. (See People v. Williams (2008) 43 Cal.4th 584, 636-637 (Williams) [even if trial court erred in not instructing jury that witness was accomplice as a matter of law, error was harmless because record demonstrated existence of sufficient corroborating evidence]; see also People v. Valdez (2012) 55 Cal.4th 82, 147 ["A trial court's error in instructing on accomplice liability under section 1111 is harmless if the record contains 'sufficient corroborating evidence' "].) " 'Corroborating evidence may be slight [and] may be entirely circumstantial' [citation], and although that evidence must implicate the defendant in the crime and relate to proof of an element of the crime, it need not be sufficient to establish all the elements of the crime. [Citation]." (Williams, supra, 43 Cal.4th at p. 638.)
Most importantly, the physical evidence recovered at the scene corroborated Aragonez's testimony. Aragonez told a detective that Arriola had used a revolver that was possibly a .38 caliber firearm. The bullet recovered from the back of Navarrette's skull was a .38 caliber bullet.
Aragonez further testified that Arriola fired one shot to Navarrette's left temple. She had told the detective that Arriola was standing to Navarrette's left when Arriola shot him. One of the witnesses who found Navarrette saw that he had an injury to his left temple upon arriving at the scene. Further, the forensic pathologist who conducted the autopsy observed a bullet entry wound to the left side of Navarrette's head, above his left ear. At trial, Aragonez testified that Navarrette was sitting in a chair when Arriola shot him. Aragonez also had told a detective that Arriola was standing when he shot Navarrette, who was seated. The car dealership owner who came upon Navarrette after Navarrette had been shot saw him sitting in a chair, and saw that he had blood flowing from the left side of his head. Police officers responding to the scene also witnessed Navarrette sitting in a white plastic chair in the kitchen. In addition, the forensic pathologist testified that the bullet traveled from Navarrette's left side to his right side, slightly front to back and downward, which was consistent with Aragonez's statements.
Aragonez also testified that she scraped her leg when Arriola pulled her over a fence after the shooting. When Aragonez was interviewed by the detective, she showed him the laceration on her right shin; the laceration was photographed.
On this record, there was sufficient corroborating direct and circumstantial evidence to support Aragonez's testimony that Arriola shot Navarrette. Accordingly, any presumed error in the trial court's failure to give an accomplice instruction would be harmless. B. The trial court was not required to instruct that an accomplice's testimony is inadequate to corroborate the testimony of an in-custody informant
Arriola contends that the trial court should have instructed the jury that the testimony of the in-custody informant, Lopez, required corroboration and could not be corroborated by Aragonez's testimony if the jury determined that she was an accomplice. Essentially, Arriola posits that an in-custody informant's testimony must be corroborated by evidence other than the testimony of a defendant's accomplice in order for the jury to use that testimony to convict a defendant.
1. Additional background
The trial court instructed the jury with CALCRIM No. 336, which informed the jury that in-custody informant testimony is to be viewed with caution. Specifically, the trial court instructed the jury as follows:
"View the statement and testimony of an in-custody informant against the defendant with caution and close scrutiny. In evaluating such a statement or testimony, you should consider the extent to which it may have been influenced by the receipt of, or expectation of, any benefits. This does not mean that you may arbitrarily disregard such statement or testimony, but you should give it the weight to which you find it to be entitled in the light of all the evidence in the case.
"You may use the statement or testimony of an in-custody informant only if:
"1. The statement or testimony is supported by other evidence that you believe;
"2. That supporting evidence is independent of the statement or testimony;
"AND
"3. That supporting evidence connects the defendant to the commission of the crimes. The supporting evidence is not sufficient if it merely shows that the charged crime was committed.
"Supporting evidence, however, may be slight. It does not need to be enough, by itself, to prove that the defendant is guilty of the charged crime, and it does not need to support every fact mentioned by the accomplice in the statement or about which the witness testified. On the other hand, it is not enough if the supporting evidence merely shows that a crime was committed or the
circumstances of its commission. The supporting evidence must tend to connect the defendant to the commission of the crime.
"A percipient witness is someone who personally perceived the matter that he or she testified about.
"Michael Zamora Lopez is an in-custody informant.
"West Valley Detention Center is a correctional institution."
Arriola did not request, and the trial court did not include the following portion of the standard instruction, which is to be provided to the jury when multiple in-custody informants testify, in order to clarify that one in-custody informant's testimony may not be corroborated by another in-custody informant's testimony unless the jury believes that it is more likely than not that the two informants did not communicate with one another regarding the subject matter of their testimony: "[Do not use the (statement/ [or] testimony) of an in-custody informant to support the (statement/ [or] testimony) of another in-custody informant unless you are convinced that __________ <insert name of party calling in-custody informant as witness> has proven it is more likely than not that the in-custody informant has not communicated with another in-custody informant on the subject of the testimony]."
2. Analysis
Arriola contends that an in-custody informant's testimony may not be corroborated by the testimony of an accomplice, and that the trial court erred in failing to instruct the jury that if it found that Aragonez was an accomplice, it could not use Aragonez's testimony to corroborate Lopez's testimony, unless the condition in the bracketed portion of CALCRIM No. 336, was met. According to Arriola, accomplices and in-custody informants may not supply cross-corroboration because both types of witnesses are highly unreliable. We reject Arriola's contention, for a number of reasons.
As an initial matter, Arriola did not request this instruction in the trial court, and, as a result, he has forfeited the contention. (See People v. Moore (2011) 51 Cal.4th 1104, 1144.) Arriola asserts that this issue should not be considered to have been forfeited because any request in the trial court would have been futile, given the authority of People v. Huggins (2015) 235 Cal.App.4th 715 (Huggins), in which the court concluded that accomplice testimony may be corroborated by in-custody informant testimony, and in-custody informant testimony may be corroborated by accomplice testimony. However, even on the merits the contention fails, for multiple reasons.
a. No modified instruction regarding in-custody informant corroboration is required
Arriola contends that "an accomplice and an in-custody informant cannot corroborate one another, given the case law regarding accomplices and the comparable concerns about self-serving accomplices and self-serving in-custody informants." He asserts that because the Penal Code requires "stronger corroboration for the testimony of an informant than an accomplice," it follows that "the combination of an accomplice and an in-custody informant is as suspect as the combination of two accomplices, and their testimony too should not corroborate each other, at least where they communicate."
Arriola acknowledges that this issue has already been decided against him by the court in Huggins, supra, 235 Cal.App.4th 715, which held that an accomplice may corroborate the testimony of an in-custody witness. (Id. at p. 719.) Arriola maintains that Huggins was incorrectly decided. We disagree with Arriola's contention and agree with the Huggins court that the relevant statutory language does not preclude an accomplice from providing the necessary corroboration of an in-custody informant's testimony, and that there is no need to create a judicial rule to prohibit such corroboration. (See ibid.)
Section 1111.5, subdivision (a) considers the use of in-custody informant testimony, and provides: "A jury or judge may not convict a defendant . . . based on the uncorroborated testimony of an in-custody informant. The testimony of an in-custody informant shall be corroborated by other evidence that connects the defendant with the commission of the offense, . . . to which the in-custody informant testifies. Corroboration is not sufficient if it merely shows the commission of the offense . . . . Corroboration of an in-custody informant shall not be provided by the testimony of another in-custody informant unless the party calling the in-custody informant as a witness establishes by a preponderance of the evidence that the in-custody informant has not communicated with another in-custody informant on the subject of the testimony." (Italics added.)
Also relevant to the consideration of in-custody informant testimony is section 1127a, subdivision (b), which requires a specific instruction when in-custody informant testimony is used at trial. Section 1127a, subdivision (b) provides: "In any criminal trial or proceeding in which an in-custody informant testifies as a witness, upon the request of a party, the court shall instruct the jury as follows: [¶] 'The testimony of an in-custody informant should be viewed with caution and close scrutiny. In evaluating such testimony, you should consider the extent to which it may have been influenced by the receipt of, or expectation of, any benefits from the party calling that witness. This does not mean that you may arbitrarily disregard such testimony, but you should give it the weight to which you find it to be entitled in the light of all the evidence in the case.' "
Further, as discussed in part III.A, ante, section 1111 makes clear that the testimony of an accomplice, like that of an in-custody informant, must be corroborated. (§ 1111; People v. Tobias (2001) 25 Cal.4th 327, 331.) In addition, there is a limitation on the type of evidence that may provide the requisite corroboration, in that another accomplice may not be the source of the corroboration. (People v. Davis (2005) 36 Cal.4th 510, 543 (Davis).)
The plain language of section 1111 is unambiguous; it precludes only the use of other accomplice testimony for corroboration purposes, and does not preclude the use of in-custody informant testimony to corroborate accomplice testimony.
Section 1111.5 provides that the testimony of an in-custody informant must be corroborated. Like section 1111, section 1111.5 places a limitation on what type of evidence may be used as corroborating evidence: corroboration for in-custody informant testimony "shall not be provided by the testimony of another in-custody informant" unless the proponent of the testimony can establish by a preponderance of the evidence that the two did not communicate with each other on the subject of the testimony. (§ 1111.5, subd. (a).) It is clear that, as defined, an individual who is an "in-custody informant" is not an accomplice: "[An] 'in-custody informant' means a person, other than a codefendant, percipient witness, accomplice, or coconspirator, whose testimony is based on statements allegedly made by the defendant while both the defendant and the informant were held within a city or county jail, state penal institution, or correctional institution." (§ 1111.5, subd. (b).) Thus, by its language, section 1111.5 does not preclude the use of accomplice testimony to corroborate an in-custody informant's testimony.
When the Legislature enacted section 1111.5, it could have easily included a prohibition on the use of accomplice testimony to corroborate the testimony of an in-custody informant if it had believed that there was a need to do so. That the Legislature prohibited corroboration by another in-custody informant except under certain circumstances but declined to prohibit corroboration by an accomplice, suggests that the Legislature did not intend to prohibit the use of accomplice testimony to corroborate in-custody informant testimony. (Huggins, supra, 235 Cal.App.4th at p. 719, citing People v. Guzman (2005) 35 Cal.4th 577, 588.)
Given that the Supreme Court implicitly rejected an argument parallel to Arriola's on this point, prior to the enactment of section 1111.5, by concluding that an in-custody informant could corroborate an accomplice's testimony (see People v. Williams (1997) 16 Cal.4th 153, 201, 246), we decline to depart from the legislatively-defined rules regarding what evidence may provide corroboration for in-custody witness testimony, to impose a judicially-created rule prohibiting the use of accomplice testimony for this purpose.
In light of the statutory language and our agreement with the Huggins court's conclusion regarding the use of accomplice testimony to corroborate in-custody informant testimony, we conclude that the trial court had no duty to instruct the jury that accomplice testimony cannot provide corroboration of an in-custody informant's testimony.
b. Even if such an instruction were required generally, no such instruction would have been required here
As we concluded in section III.A.2, ante, the trial court was not required to instruct the jury that Aragonez's testimony had to be corroborated if the jury determined that she was an accomplice, because there was insufficient evidence to support a finding, by a preponderance of the evidence, that she was an accomplice. (See Rangel, supra, 62 Cal.4th at p. 1222.) As a result, even if Arriola were correct that the testimony of an in-custody informant must be corroborated by evidence other than testimony from an accomplice, there would be no need for such an instruction to inform the jury of that in this case. Aragonez's testimony could thus validly provide corroboration for Lopez's testimony against Arriola regarding the murder.
Arriola's contention on appeal is that Lopez's testimony regarding Arriola's role in Navarrette's killing is suspect and cannot be believed due to Lopez's status as an in-custody informant; however, Arriola also contends on appeal that Lopez's testimony regarding Aragonez's role in the incident should be wholly believed, such that Aragonez should be considered to have been an accomplice in Navarrette's murder.
c. Even if such an instruction were required generally and had been required in this case, Arriola cannot demonstrate prejudice as a result of the lack of such an instruction because other evidence corroborated Lopez's testimony
Even if we were to conclude that the trial court was required to give a modified version of the bracketed portion of the instruction to guard against the use of accomplice testimony to corroborate the testimony of an in-custody informant, any error in not providing such an instruction in this case would be harmless.
A reviewing court "may reverse the judgment only if [the court is] able to say [that] it is reasonably probable the jury would have reached a result more favorable to defendant if the trial court had instructed that before the jury could convict defendant based solely on the testimony of [the] in-custody informant, there must be evidence that corroborates that testimony, i.e., that connects defendant to the commission of the crime." (People v. Davis (2013) 217 Cal.App.4th 1484, 1490.) The corroborating evidence may be slight, but it must connect the defendant with the commission of the offense without aid of the witness's testimony. (§§ 1111, 1111.5; Davis, supra, 36 Cal.4th 510, 543.)
In this case, there was evidence that corroborated Lopez's testimony. For example, Lopez testified that Arriola told him that after he shot Navarrette, Arriola took Navarrette's wallet out of one of his pockets and left it on the kitchen counter. Lopez also testified that Arriola indicated that he had used a .38 caliber pistol to shoot Navarrette in the side of the head while Navarrette was sitting down in the kitchen of the residence where Arriola and Aragonez had gone to see him. Law enforcement officers testified that they found an empty wallet on a countertop in the kitchen. In addition, a forensic pathologist testified that Navarrette had suffered an entry wound on the left side of his head, above the ear, and that a .38 caliber bullet was lodged in the back of his head, on the right side. The bullet traveled in a slightly downward direction, indicating that the shooter had been standing, and that Navarrette had been seated at the time he was shot. In addition, Lopez testified that Arriola told him that he had thrown .38 caliber bullets underneath a couch in his home. Law enforcement officers found 19 unexpended .38 caliber bullets under the center seat of a couch in Arriola's living room.
This supporting evidence connects Arriola to Navarrette's killing. Lopez's testimony as to how Arriola shot Navarrette was thus corroborated. We therefore cannot conclude that there is a reasonable probability that the jury would have reached a more favorable result for Arriola even if the court had instructed the jury regarding the corroboration of in-custody informant testimony, as Arriola suggests on appeal. C. Arriola cannot establish that trial counsel was ineffective in handling the issue of attempting to impeach Morales with evidence that he had a conviction for carrying a firearm
Again, we reject the notion that the trial court was required to provide the instruction at issue; we simply point out that even if it had been, Arriola cannot demonstrate that he was prejudiced by the failure to do so.
Arriola contends that his trial counsel rendered ineffective assistance by failing to impeach Morales with evidence that Morales had been convicted of a misdemeanor for carrying a firearm. According to Arriola, his attorney "had no strategic justification, and there was no rational strategic justification" (some capitalization omitted) for failing to question Morales about his conviction for violating section 12031.
1. Additional background
During defense counsel's cross-examination of Morales, the following exchange occurred:
"Q: Are you allowed to own a gun?
"A: No, I'm not.
"[The prosecutor]: Objection relevance.
"THE COURT: Sustained at this point.
"Q: BY [defense counsel]: You're a truthful person; right, Mr. Morales?
"[The prosecutor]: Objection. Argumentative and relevan[ce].
"THE COURT: Overruled.
"THE WITNESS: Yes.
"Q. BY [defense counsel]: And you're trying to be truthful with us here today?
"A: Yes.
"Q: But you've been convicted of gun charges before; correct?
"A: That's incorrect.
"[The prosecutor]: Objection. Moral turpitude. Improper impeachment.
"THE COURT: Was it a felony conviction?
"[The prosecutor]: Can we approach?
"THE COURT: What is the answer to that question?
"THE WITNESS: No.
"THE COURT: All right. Approach.
Outside the presence of the jury, the court asked the prosecutor whether Morales had a "conviction regarding a firearm." The prosecutor indicated that she "d[id] not see any convictions involving any firearms," but that "[Morales] [did] have prior felony convictions." The court then stated that its records indicated that Morales had also been convicted of carrying a firearm in a public place, a misdemeanor, in violation of section 12031, subdivision (a)(1). However, the court recalled that defense counsel had asked Morales whether he was allowed to own a gun, and not whether he had been convicted of carrying a firearm in a public place. The court further stated that because Morales had two other felony convictions, "[he] is not authorized to own a firearm." The court then indicated that defense counsel would be permitted to "inquire into both of these [felony] convictions as it goes to crimes of moral turpitude and truth and veracity. And I don't see the harm of saying that. He says he doesn't own a gun. And one of the reasons why is because he has prior convictions, which would come in any ways [sic] if she impeaches him." The court then suggested to defense counsel, "Perhaps you should do that part first and get it on the record the part about crimes of moral turpitude."
Morales's felony convictions were for assault with force likely to cause great bodily injury (§ 245, subd. (a)(1)) and unlawful driving or taking of a vehicle (Veh. Code, § 10851).
The trial court stated that "[Morales] has already said, I don't own any guns, and the question was asked. The cat's already out of the bag. I'm going to allow to ask [sic] that one question. But have you to put to the impeachment one first [sic]."
The jury was brought back into the courtroom, and defense counsel proceeded to question Morales. The following colloquy occurred:
"Q. BY [defense counsel]: Mr. Morales, you have two felony convictions; correct?
"A. Correct.
"Q. And those felony convictions prevented you from owning a gun; correct?
"A. Correct.
"Q. And one of those convictions was for theft; yes?
"A. Correct.
"Q. And one was for violation [sic]; correct?
"A. Correct.
"Q. And after those two convictions in your life you went ahead and owned a gun any[ ]way; correct?
"MS. MASONEK: Objection. Speculation hearsay and relevance.
"THE COURT: Sustained as to relevance. The answer is stricken. You are not to consider the question or answer. Disregard that."
At that point, defense counsel moved on to question Morales on a different topic.
2. Legal standards
To establish a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was deficient in that it "fell below an objective standard of reasonableness," evaluated "under prevailing professional norms." (Strickland v. Washington (1984) 466 U.S. 668, 688 (Strickland); accord, People v. Ledesma (1987) 43 Cal.3d 171, 216 (Ledesma).) "When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." (People v. Mai (2013) 57 Cal.4th 986, 1009.) Thus, "[w]hen the record on direct appeal sheds no light on why counsel failed to act in the manner [the defendant asserts counsel should have acted], defendant must show that there was ' " 'no conceivable tactical purpose' " for counsel's act or omission.' " (People v. Centeno (2014) 60 Cal.4th 659, 675.) " '[T]he decision facing counsel in the midst of trial over whether to object to comments made by the prosecutor in closing argument is a highly tactical one . . . .' [citation], and 'a mere failure to object to evidence or argument seldom establishes counsel's incompetence.' " (Ibid.)
If counsel's performance has been shown to be deficient, the defendant is entitled to relief only if he can also establish that he was prejudiced by counsel's ineffectiveness. (Strickland, supra, 466 U.S. at pp. 691-692; accord, Ledesma, supra, 43 Cal.3d at p. 217.)
3. Analysis
Arriola contends that his attorney "acted unreasonably in not introducing evidence that Morales in fact suffered a prior [misdemeanor] conviction for . . . carrying a firearm."
The People argue on appeal that the misdemeanor offense of carrying a loaded firearm, in violation of former section 12031, subd. (a)(2)(G), is not a crime of moral turpitude, and that Morales's conviction for a violation of that section therefore could not be used as impeachment evidence. Misdemeanor convictions may be used to impeach a witness; however, the threshold inquiry is whether the prior conduct has some logical bearing on the witness's veracity. (People v. Wheeler (1992) 4 Cal.4th 284, 295.) In determining whether the prior conduct has some logical bearing on the witness's veracity, courts must ascertain whether the conduct underlying the offense involves moral turpitude. (Id. at p. 296)
Section 12031 was repealed as of January 1, 2012, and reenacted without substantive change as section 25850. (Stats. 2010, ch. 711, §§ 4, 6.)
Arriola contends in his reply brief that the People fail to address his contention on appeal, which is not simply that his attorney could have impeached Morales with evidence of his prior misdemeanor conduct, but that his attorney should have questioned Morales about his prior firearm conviction because Morales had responded, "That's incorrect," when asked whether he had been convicted of a gun charge, and this response was false. Specifically, Arriola argues that "counsel was ineffective for not introducing evidence of Morales' firearm conviction after Morales testified he had not been convicted of gun charges . . . ." (Some capitalization omitted.) Arriola thus argues that his attorney could have directly impeached Morales's credibility by demonstrating that he had testified falsely when he stated that defense counsel's assertion that he had been convicted of a gun charge was "incorrect."
It is possible that if Morales had been asked to clarify his answer, he may have provided additional information to demonstrate that he was not intentionally making a false statement about whether he had suffered a firearm conviction. However, his answer, without further qualification, appears to be untrue, given that the trial court found a record of a misdemeanor firearm conviction on Morales's record.
Arriola does not argue that the underlying conduct of possessing a firearm, despite being prohibited from doing so, was admissible as impeachment evidence.
We see no deficiency in counsel's performance related to this issue. Specifically, Arriola's counsel attempted to question Morales about the misdemeanor conviction; counsel thus essentially did try to impeach Morales with the firearm conviction in order to demonstrate that he had not been truthful in his testimony. After the attorneys and the trial court discussed whether defense counsel should be permitted to do so, counsel again attempted to inquire about the matter, asking Morales, "And after those two convictions in your life you went ahead and owned a gun any way; correct?" This question was obviously in reference to Morales's misdemeanor conviction, and was counsel's attempt to raise the issue of that conviction yet again. However, at that point, the trial court sustained the prosecutor's objection to the question.
Rather than attempting to continue to pursue this line of questioning after it became clear that the trial court was not going to allow counsel to inquire further about Morales's possession of a firearm, defense counsel decide to move on. We cannot conclude that this was an unreasonable decision. Whether to object to the admission of evidence or to request the admission of evidence are generally tactical decisions that are accorded substantial deference, and the failure to object to or request the admission of evidence seldom provides grounds for counsel's incompetence. (See People v. Hayes (1990) 52 Cal.3d 577, 621.) It goes without saying that an attorney's decisions with respect to how to question a witness also involve tactical decisions that must be accorded substantial deference, such that whether to impeach a witness is a matter of trial tactics that normally will not support a claim of ineffective assistance of counsel. (See People v. Barnett (1998) 17 Cal.4th 1044, 1140 [" 'The failure to impeach a witness or to object to evidence are matters which usually involve tactical decisions on counsel's part and seldom establish a counsel's incompetence' " because " ' " '[i]n the heat of a trial, defendant's counsel is best able to determine proper tactics in the light of the jury's apparent reaction to the proceedings' " ' "].) In this case, it is possible that counsel decided that attempting to further attack Morales's credibility would have been viewed unfavorably by the jury, or that pursuing such a line of questioning would have provided little real benefit. Further, given the trial court's immediate decision to sustain the prosecutor's objection, defense counsel may have reasonably concluded that it would have been futile to continue to try to elicit testimony about Morales's misdemeanor firearm conviction. Such decision-making should be given great deference. We see no reason to second-guess counsel's decision-making with respect to his questioning of Morales. We therefore reject Arriola's claim of ineffective assistance of counsel. D. The court did not err in excluding evidence purporting to demonstrate that Morales believed that he could receive a reward for providing information leading to a conviction
Although at one point in his briefing, Arriola posits that the "court seemed to expressly permit introduction of the firearm conviction," he concedes in a footnote that the "discussion left some question of whether the court was indicating counsel could question about the firearm conviction or about his prohibition from owning firearms." We agree with that portion of Arriola's brief that suggests that it was not clear whether the court did, in fact, rule that defense counsel would be permitted to question Morales about his misdemeanor firearm conviction. It appears that the court never specifically addressed that issue in its remarks about what information defense counsel could use to impeach Morales.
When defense counsel attempted to question Morales about his possession of firearms after he was prohibited from possessing them, a question that could have led to Morales having to admit or be confronted with the fact that he had suffered a misdemeanor conviction for carrying a firearm, the trial court effectively shut down this line of questioning by sustaining the prosecutor's objection to defense counsel' question.
Arriola does not challenge the trial court's ruling as to the question about whether Morales owned a gun after having been convicted of two felonies and having been prohibited from possessing a gun, and we make no determination as to whether the trial court's evidentiary ruling with respect to defense counsel's question was correct or not.
Arriola contends that the trial court erred in excluding evidence that indicated that Morales may have believed that he would be monetarily rewarded if he provided police with information that led to a conviction. Arriola contends that the trial court's exclusion of this evidence was an abuse of discretion under state law evidentiary standards, and also violated his federal constitutional rights to present a defense and to confront witnesses.
1. Additional background
During defense counsel's questioning of Morales on cross-examination, Morales acknowledged that Arriola had helped him "[a] little" financially, and specifically, had helped him to provide food for his children. After this testimony, the following exchange occurred:
"Q: BY [defense counsel]: You mentioned that you and [Arriola] were friends; correct?
"A: Correct.
"Q: And were you friends because of his generosity to you; was that not part of the friendship?
"[The prosecutor]: Objection. Relevance. Improper.
"THE COURT: Let me talk to the attorneys at the bench. (Whereupon a sidebar conference off the record.)
"THE COURT: Go ahead, [defense counsel].
"Q: BY [defense counsel]: At some time when you were living in San Bernardino [C]ounty, isn't it true that you became a witness in another murder case?
"[The prosecutor]: Objection. Relevance. And request to approach.
"THE COURT: All right. I'll ask the jury to step outside the courtroom, please."
Outside the presence of the jury, the trial court asked defense counsel why she intended to question Morales on the topic of his having been a witness in another murder case. Defense counsel indicated that Morales had had a conversation with Arriola about Morales having found a body on a bike trail, but Morales had not had enough information to lead to an arrest or conviction in the case. Counsel proffered that Morales had told Arriola that people who provide law enforcement with information that leads to an arrest or conviction could get up to $10,000. Counsel argued that this evidence was relevant to demonstrate that Morales had a bias and motive for testifying against Arriola. The court asked counsel whether she had any information that anyone had offered Morales a reward in this case. Defense counsel responded that it was her understanding that Morales believed that "this is a policy," although Morales was "not under the impression . . . that there needs to be a reward per case."
The prosecutor argued that the proffer failed to demonstrate that the evidence would be relevant because any information that Morales had with respect to any other murder was not relevant to this case. The prosecutor indicated that her understanding regarding the circumstances of that other case was that it involved Morales riding a bicycle when he saw a woman's body under a blanket under a bridge, and he contacted a police officer. The prosecutor further argued that Arriola's self-serving statement concerning Morales's purported statement about a reward lacked foundation and did not establish bias.
The trial court concluded that eliciting testimony regarding Morales's purported statement about a reward with respect to an unrelated case would necessitate "an undue consumption of time" because, in this case, Morales had not found the victim's body, and he was not present when the murder happened—i.e., he was not a witness at all to the murder with which Arriola was charged. Rather, Morales was testifying only about the earlier crime of Arriola pointing a revolver at him, for which Arriola was being tried at the same time as he was being tried for the murder. The trial court stated: "So under Evidence Code Section 352, I believe that any relevance that it might have is very slight, if any, since he's not the one who found the body. And I think it is an undue consumption of time to go into all the surrounding facts regarding that [other] incident. It doesn't seem to be related. He was not offered a reward in this case. I'm going to exclude it under Evidence Code Section 352."
After the trial court made its ruling, defense counsel indicated that she wanted to question Morales about his inconsistent statements. The trial court responded: "You can cross-examine him about any inconsistencies under the normal traditional ways that that is handled with prior inconsistent statements. But him riding a bicycle at a time prior to this happening by a dead body, if there is any relevance it's extremely slight. And under Evidence Code section 352, it is completely an undue consumption of time to go down that path and I'm going to exclude it."
2. Analysis
a. The trial court did not abuse its discretion under state law
Only relevant evidence is admissible. (Evid. Code, § 350.) "[A]ll relevant evidence is admissible unless excluded under the federal or California Constitution or by statute." (People v. Carter (2005) 36 Cal.4th 1114, 1166 (Carter); Evid. Code, § 351.) "Relevant evidence is defined in Evidence Code section 210 as evidence 'having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' " (Carter, supra, 36 Cal.4th at p. 1166.) "The test of relevance is whether the evidence tends ' "logically, naturally, and by reasonable inference" to establish material facts such as identity, intent, or motive.' " (Ibid.) "The trial court has broad discretion in determining the relevance of evidence . . . ." (People v. Cowan (2010) 50 Cal.4th 401, 482.)
However, even if evidence is relevant, the trial court in its discretion may exclude it "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." (Evid. Code, § 352.) We review a trial court's exclusion of evidence under Evidence Code section 352 for an abuse of discretion. (People v. Peoples (2016) 62 Cal.4th 718, 743.) Specifically, "[a] trial court's ruling to admit or exclude evidence offered for impeachment is reviewed for abuse of discretion and will be upheld unless the trial court 'exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' " (People v. Ledesma (2006) 39 Cal.4th 641, 705.)
The proffered evidence that Morales may have generally believed that he could obtain reward money by providing information leading to a conviction or arrest was only marginally relevant to the issues to be decided by the jury. Further, there was no evidence that Morales was offered, sought, or received a reward for providing any information related to this case. Thus, it is entirely speculative to suggest that the prospect of a reward provided Morales with an incentive to testify against Arriola, or that Morales had a bias or a motive to lie. The trial court did not abuse its discretion in precluding this line of questioning by defense counsel.
b. The trial court's exclusion of this evidence did not amount to a federal constitutional violation
In a supplemental brief filed subsequent to the filing of his opening brief, Arriola argues that the trial court's ruling excluding evidence that Morales believed that he could get a reward for providing information leading to a conviction violated Arriola's federal constitutional right to confrontation. This contention is without merit for both procedural and substantive reasons.
First, the record does not disclose that defense counsel raised a confrontation clause objection in the trial court. Specifically, during the sidebar discussion regarding why defense counsel wanted to question Morales about being "a witness in another murder case," defense counsel discussed the relevance of the proffered evidence, but did not raise the federal confrontation clause issue, and Arriola does not suggest that a confrontation clause claim was presented to the trial court. The failure to raise an objection based on the confrontation clause forfeits the argument on appeal. (See People v. Redd (2010) 48 Cal.4th 691, 730 [The defendant "did not raise an objection below based upon the confrontation clause, and therefore has forfeited this claim"]; People v. Tafoya (2007) 42 Cal.4th 147, 166.)
Even if this claim were not forfeited, we would reject the argument on its merits. A defendant has a due process right "to present all relevant evidence of significant probative value to his defense." (People v. Babbitt (1988) 45 Cal.3d 660, 684.) However, "[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's right to present a defense." (People v. Hall (1986) 41 Cal.3d 826, 834.)
A " 'trial court's limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted.' [Citation.]" (Whisenhunt, supra, 44 Cal.4th at p. 208.) The confrontation clause " 'guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.' [Citations.]" (People v. Clair (1992) 2 Cal.4th 629, 656, fn. 3.) "The confrontation clause allows 'trial judges . . . wide latitude . . . to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.' [Citation.]" (Ibid.)
As we have already concluded, the proffered evidence that Morales may have at one point believed, generally, that he could receive a reward by providing information leading to a conviction was only marginally relevant to the issues to be decided by the jury. Further, it was entirely speculative with respect to attempting to show that Morales had bias or a motive to lie because there was no evidence that Morales sought, was offered, or received, a reward for providing information in this case. Indeed, as the trial court concluded, the presentation of Morales's purported statement about a reward would necessitate "an undue consumption of time" given the lack of any indication that Morales had sought or been offered a reward in this case. Given the speculative nature of this line of inquiry and its minimal relevance, we conclude that an inquiry into Morales's purported statement that someone who provided information that could lead to an arrest or conviction would receive a reward was not likely to give the jury a "significantly different impression of" Morales's "credibility." (People v. Quartermain (1997) 16 Cal.4th 600, 624.) We therefore reject the contention that the trial court's exclusion of this evidence violated the confrontation clause. E. The prosecutor did not commit misconduct during rebuttal
Arriola contends that the prosecutor committed misconduct during rebuttal argument by "testifying to facts not in evidence that [Arriola's] family did not give police the bags of clothes brought to his family's car." (Capitalization omitted.) According to Arriola, this misconduct violated his federal constitutional rights to due process and confrontation.
1. Additional background
During closing argument, defense counsel attacked Aragonez's credibility by arguing the following:
"She told Detective Munoz the shooter would have been covered in blood. She didn't look at any of her prior testimony she said when she came here. She just gave the second interview a year later. And only in 2015 is the sweatshirt produced for her to look at and it has no rips in it. So she says, oh, not the same sweatshirt, but the police searched both [Arriola's and Arriola's parents'] houses. It was the only Raiders sweatshirt. Had there been two or three or four, they would have taken them all.
"And she told you that she saw the sweatshirt on the couch. Now, use your common sense. It's a hot day, the end of May, 2 o'clock in the afternoon. Ruben is leaving with his family. [Aragonez] goes with him. Is Ruben going to put a sweatshirt back on on a hot day at 2:00 in the afternoon? Highly unlikely. And Sergeant Kokesh told you he saw him directly after that in a blue tank top. But [Aragonez] told you at the market, she noticed the rip in the sweatshirt. That rip is supposed to make you believe all the fence jumping stuff."
In rebuttal, the prosecutor made the following comments:
"The defendant hid evidence. We know that. He took off his sweatshirt, packed his bags. He wiped off his hands. He was caught wearing a different shirt, not only did we have . . . Aragonez testify about him wearing a gray sweatshirt with the Raiders logo on it. She also saw him take it off, and then he was observed wearing a blue muscle shirt hours later.
"[¶] . . . [¶]
"In this particular case, back on May 26th, 2013, [C.] Navarrette described a gray sweatshirt with the Raider's logo. The shirt you have in the bag is black. It's not the same shirt. That shirt, by the way, with the so-called helpful family members, that was the shirt that the defendant's family gave to law enforcement. That was not the shirt the defendant was wearing.
"In fact, wouldn't it have been even more helpful if the family had said, Oh, and by the way, here are those plastic bags that we helped load up into our car right as we were fleeing the area when we saw law enforcement coming in. Wouldn't that actually have been helpful? It sure would have, but they didn't do that."
Defense counsel objected to this portion of the prosecutor's argument, stating, "this is addressing facts not in evidence." The trial court concluded otherwise, stating: "It addresses not only the facts, but arguments that were made by the other side, so go ahead, [prosecutor]."
2. Legal standards
"A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury." (People v. Morales (2001) 25 Cal.4th 34, 44.)
Although the standard for prosecutorial error under state law—" ' " 'the use of deceptive or reprehensible methods' " ' "—suggests that a prosecutor must act in bad faith, in People v. Hill (1998) 17 Cal.4th 800, 822-823 (Hill), the Supreme Court made it clear that bad faith on the part of the prosecutor is not required for a successful claim of prosecutorial error. The Hill court relied on the above standards in assessing the claims of prosecutorial error in that case, despite the implication that bad faith might be required. (Id. at p. 819.)
Absent a fundamentally unfair trial under the federal Constitution, prosecutorial misconduct or error does not require reversal of the judgment unless it was prejudicial under state law, i.e., it is reasonably probable that the defendant would have obtained a more favorable verdict absent the misconduct or error. (People v. Bell (1989) 49 Cal.3d 502, 534, 542; People v. Castillo (2008) 168 Cal.App.4th 364, 386 (Castillo); People v. Crew (2003) 31 Cal.4th 822, 839.) If the prosecutorial misconduct or error renders the defendant's trial fundamentally unfair under the federal Constitution, reversal of the judgment is required unless the misconduct or error is harmless beyond a reasonable doubt. (Castillo, supra, 168 Cal.App.4th at pp. 386-387, fn. 9.)
In making a closing argument, "[p]rosecutors may make vigorous arguments and fairly comment on the evidence; they have broad discretion to argue inferences and deductions from the evidence to the jury. [Citation.]" (People v. Reyes (2016) 246 Cal.App.4th 62, 74, italics added.) In addition, on rebuttal, a prosecutor has a right to meet the issues within the scope of the record as well as defense counsel's argument. (People v. Hill (1967) 66 Cal.2d 536, 564.) This is because "[r]ebuttal argument must permit the prosecutor to fairly respond to arguments by defense counsel [citation] . . . ." (People v. Bryden (1998) 63 Cal.App.4th 159, 184.) There is no misconduct "where the remarks are responsive to defense counsel's argument and do not go beyond the record. [Citation.]" (People v. Hill, supra, 66 Cal.2d at p. 562.)
In a situation in which a prosecutor's comments rise to the level of constituting prosecutorial misconduct, reviewing courts nevertheless evaluate " ' "whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." ' " (People v. Friend (2009) 47 Cal.4th 1, 29.) Moreover, a prosecutor's statements must be evaluated in context to determine whether there is a substantial risk the jury would consider the comments to be based on facts not in evidence. (People v. Lopez (2008) 42 Cal.4th 960, 971.)
3. Analysis
The prosecutor's argument was based on a fair inference that one could draw from facts that were in evidence. Aragonez told Detective Munoz that on the day of the murder, Arriola was wearing a gray Raiders sweatshirt with pockets on the front. She also testified that, after the shooting, she saw Arriola's family members place already packed bags in their vehicle. Navarrette's sister also saw people with bags of clothes in their arms exiting Arriola's home that day. She saw Arriola walk from his yard and throw bags into a vehicle.
When Arriola, his family members and Aragonez left the residence in a gray SUV, the bags were piled up beside Aragonez in the back seat. Aragonez testified that while they were at the liquor store, she noticed that Arriola's Raiders sweatshirt had a rip or tear.
Arriola's parents later provided police with a black Raiders sweatshirt during a search of their home.
Based on this testimony, one could reasonably infer that Arriola's family members assisted him in disposing of bags of clothing, one or more of which may have contained the sweatshirt that Aragonez said Arriola was wearing at the time of the shooting, which is essentially what the prosecutor was arguing in rebuttal. Both sides argued that certain inferences could be drawn from the evidence. Our review of the record does not indicate that the prosecutor's rebuttal argument about what inferences could be drawn rose to the level of " ' " 'deceptive or reprehensible methods.' " ' ") (People v. O'Malley (2016) 62 Cal.4th 944, 1010.) We therefore conclude that the prosecutor's rebuttal argument addressed defense counsel's closing argument and was a fair comment regarding an alternative inference based on the evidence; neither constitutional error nor state law error has been demonstrated. F. There is no cumulative error
Arriola contends that the cumulative effect of the errors that he alleges requires reversal. "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.)
We have concluded that Arriola has established no error at trial. Accordingly, there is no cumulative error that requires reversal of the judgment. (See People v. Rountree (2013) 56 Cal.4th 823, 860 [no cumulative error where "there was no error to accumulate"].) G. Arriola is entitled to resentencing
In a supplemental brief, Arriola argues that pursuant to Senate Bill No. 620, his case should be remanded to the trial court to allow the court to exercise its discretion to strike or dismiss the firearm enhancements for which he was sentenced. The People agree that Arriola is entitled to have his case remanded for resentencing.
The trial court sentenced Arriola on May 31, 2016. In sentencing Arriola with respect to count 1, second degree murder, the court imposed a consecutive mandatory indeterminate term of 25 years to life pursuant to section 12022.53, subdivision (d), based on the jury's true finding that Arriola personally used a firearm. The court also imposed, but stayed pursuant to section 654, an additional term of 10 years under subdivision (b), and a term of 20 years under subdivision (c).
Effective as of January 1, 2018, Senate Bill No. 620 (2017-2018 Reg. Sess.) amends sections 12022.5 and 12022.53 to give trial courts retroactive discretionary authority to strike a defendant's firearm enhancement as alleged under these statutes. (See Cal. Const., art. IV, § 8, subd. (c).)
Although it is generally the case that amendments to the Penal Code are not applied retroactively, one recognized exception to this rule is for amendments that reduce the punishment for a specific crime. (See In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada); accord, People v. Brown (2012) 54 Cal.4th 314, 323-324.) The Estrada court explained that when the Legislature has reduced a crime's punishment, it has "expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act." (Estrada, supra, 63 Cal.2d at p. 745.) The Estrada court determined that "the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply." (Ibid.) To "hold otherwise," the court concluded, "would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology." (Ibid.)
In the wake of Estrada, the Supreme Court has extended Estrada's reasoning to legislative amendments that give the trial court discretion to impose a lesser sentence. (People v. Francis (1969) 71 Cal.2d 66, 75-76; see also People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307-308.) Arriola contends that under this authority, he should receive the benefit of Senate Bill No. 620's grant of discretion to the trial court to strike a defendant's firearm enhancement.
The People concede that Arriola's contention with respect to Supreme Court precedent is correct, and agree that the matter should be remanded to allow the trial court to exercise its discretion as to whether to strike or dismiss the firearm enhancements. We accept the People's concession. We therefore vacate Arriola's sentence and remand the matter to the trial court for resentencing to allow the trial court to exercise its discretion with respect to whether to strike the firearm enhancements.
IV.
DISPOSITION
Arriola's sentence is vacated. The case is remanded for resentencing, so that the trial court may exercise its discretion with respect to whether to strike the firearm enhancements. In all other respects, the judgment is affirmed.
AARON, J. WE CONCUR: HALLER, Acting P. J. O'ROURKE, J.