People v. Baca

Full title: THE PEOPLE, Plaintiff and Respondent, v. JOHNNY BACA, Defendant and…

Court: California Court of Appeals, Fourth District, Second Division

Date published: Sep 20, 2022

No. E074376 (Cal. Ct. App. Sep. 20, 2022)

Opinion

E074376

09-20-2022

THE PEOPLE, Plaintiff and Respondent, v. JOHNNY BACA, Defendant and Appellant.

Jean Matulis, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.

McKINSTER Acting P. J.

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County. No. INF035028 Samuel Diaz, Jr., Judge. Affirmed in part; reversed in part with directions.

Jean Matulis, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

McKINSTER Acting P. J.

I. INTRODUCTION

In 1995, defendant and appellant Johnny Baca shot and killed John Jack Adair¹and John Mix and stole their car. Defendant was charged with, and a jury convicted him of, two counts of first degree murder. (Pen. Code,² § 187.) (People v. Baca (Sept. 28, 1999, E021093) [nonpub. opn.].) His convictions were reversed due to ineffective assistance of counsel. (People v. Baca, supra, E021093.)

1 Because more than one individual with the Adair surname is involved in this case, we refer to Adair family members by their first name to avoid confusion. No disrespect is intended. (Estate of O'Connor (2018) 26 Cal.App.5th 871, 875, fn. 2.) However, since most people referred to John Jack as Jack, we do the same.

2 Further statutory references are to the Penal code unless otherwise stated.

On remand, the Riverside County District Attorney filed a new felony complaint, and in 2002 a jury again convicted defendant of two counts of first degree murder. (People v. Baca (Dec. 2, 2004, E032929) [nonpub. opn.].)³ We upheld the judgment, and defendant sought relief in the federal courts, asserting prosecution testimony falsely bolstered the informant's credibility. During the appellate proceedings, the parties agreed "to reverse the judgment of the district court and remand, with directions to issue a conditional grant of the writ, requiring that [defendant] be released or, in the alternative, retried within a reasonable time."

3 On July 29, 2021, this court took judicial notice of its record in defendant's prior appeal in People v. Baca, supra, E032929.

Defendant was retried, and on December 16, 2019, a jury again convicted him of two counts of first degree murder.⁴ He was sentenced to state prison for a total term of 55 years four months to life.

4 The jury also found true two personal gun use enhancements (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8)).

In this appeal, defendant contends: (1) the trial court erred in refusing to dismiss the case based on (a) prosecutorial misconduct in his prior jury trials or (b) the prosecution's destruction, loss, or delayed disclosure of evidence; (2) the trial court abused its discretion in (a) admitting Jack's statements to the first-responding officers, which identified defendant as the assailant and (b) excluding the transcript of Jack's 911 call; (3) the trial court erred by instructing the jury with CALCRIM No. 315 relating to eyewitness identification testimony; (4) imposition of $10,000 in victim restitution was unauthorized; and (5) defense counsel was ineffective for not seeking dismissal based on double jeopardy. Except for the victim restitution order we affirm.

II. PROCEDURAL BACKGROUND AND FACTS

A. The Prosecution's Case.

In 1995, Jack and Mix (the victims) were living together as a couple in Rancho Mirage. They also shared an apartment in Los Angeles. Jack was "well off," owning numerous properties and several nice vehicles. According to a friend, Valerie Milot, Jack owned high-end vehicles, including a gray BMW that was registered in her name because he had a DUI on his record and no driver's license.

Jack raised Tom Moroney as a foster child and adopted him as an adult, changing his name to Tom Adair. Tom was "kind of rough around the edges" and had "inconsistent" employment, but Jack provided him with housing and money as needed. Tom lived in Desert Hot Springs in a house paid for by Jack. Milot's daughter, Angela, dated Tom in 1989 and 1990 for six months to a year. Tom told Angela that he did not like Mix because he began controlling Jack's "purse strings," which reduced Tom's "cash flow." Because Tom was mad at Jack, he would call him "queer, faggot, or fat drunk." Tom carried a ".38 special" in his car "for protection."

Jack had a will, which left 75 percent of the residue of his estate in a trust to the benefit of Tom. Jack's condo was to go to Tom, but the Rancho Mirage residence was to go to Mix, unless Mix predeceased Jack, then it would go to Tom. Additionally, Jack had numerous life insurance policies, which listed Tom as a beneficiary. The relationship between Jack and Tom became strained when Jack began to feel like he was "being used." Deciding to decrease Tom's inheritance, in or around July 1995, Jack drafted a codicil to his will which left Tom with just "enough money to provide him with education and maturing, so that he could learn how to get a job and be self-sufficient." Jack also changed the locks at his home to prevent Tom's access, and he wanted to remove Tom as a beneficiary of his life insurance policies.

Around the time that Jack was changing his estate plan, Tom met defendant, who was working at a Chinese restaurant, and the two became friends. Shortly thereafter, Tom arranged for defendant to move in with the victims, where defendant would live rent free in exchange for taking care of the pool and the yard.

At first, Jack believed that defendant was a "good guy." However, a couple of weeks prior to the victims' murders, Jack grew "fearful" and "anxious" of defendant. Jack had Milot call defendant at the restaurant and tell him that Jack "wanted [defendant] out of [the] house and not to come back." Milot then went into defendant's room and packed up his belongings. While packing, she found paperwork (licenses and I.D. cards) and information about other people's addresses and phone numbers, and she told Jack to write it all down as "evidence in case [defendant] comes back." They also wrote down defendant's personal information. After talking to defendant, Milot received a call from Tom, who sounded angry and threatening, and he told her she had "no right" to help Jack remove defendant from the house. The next day, defendant returned to the house after contacting the sheriff, who informed Jack that he could not evict defendant without doing so legally.

On August 6, 1995, Milot picked up Mix from the Palm Springs airport, took him home, and left the house around 3:00 or 3:30 p.m. At approximately 8:45 p.m., Jack called 911, and Riverside County Sheriff's Sergeant Walker and Deputy Moore were dispatched to the residence. Looking through a sliding door in the back of the house, they saw a man (later identified as Jack) leaning over a kitchen counter and holding a towel to his face. They went inside and saw another man (later identified as Mix) on the ground; he was not conscious and did not appear to be alive. Jack was frantic, pacing back and forth and saying, "'Help me,'" and "'Oh, my God.'" Sergeant Walker tried to calm Jack down, and she asked him his name and the name of the person on the ground. Jack identified both as being named John.

As Deputy Moore went to clear the house. Sergeant Walker asked Jack, "'Who did this to you?'" Jack replied, "'-aca.'" Walker repeated, "'-aca,'" three times, and then she heard Jack say, "'Baca.'" So Walker asked Jack, "'Baca?,'" and there was "clearly an affirmative yes, that's what he's saying." Walker did not know the victims or defendant, and the first time she heard the name "Baca" was from Jack. Moore stepped out briefly and returned with paramedics. When he returned, he heard Walker questioning Jack, and when Jack's answer did not register with Walker, he asked Jack to spell it. Jack spelled out, "'B-a-c-a,'" identified the shooter as "'Johnny Baca,'" and directed them to a piece of paper with defendant's information. The deputies also saw a handgun on the floor.

Deputy Tesinski also responded to the scene. He asked Jack if he knew who had done this to him, and he said, "'Baca.'" Tesinski testified that Jack kept repeating the name, "'Baca.'" When Tesinski repeated the name back to Jack, he spelled it, "'B-a-c-a.'" Tesinski's report did not reflect that Jack successfully spelled defendant's name. According to Tesinski, Jack directed the deputies to get a yellow notebook paper in a bedroom closet with defendant's information on it. Tesinski spoke to Tom, who provided a description of defendant and told the deputy that Jack's BMW was missing.

Deputy Woody responded to the scene at approximately 9:05 p.m. He first thought that Jack had been using a bloody towel to apply pressure on Mix's wounds; however, when Jack spoke, Woody noticed that it sounded as if there was water in Jack's mouth until the deputy realized that Jack had also been hurt. As Woody looked at Jack, he tried to say, "'Balk, balk.'" Woody asked, "'Balk?,'" and Jack shook his head indicating no and tried to say it again. Then Woody asked, "'Balk, did Balk shoot you?,'" and Jack shook his head, swallowed, and said, "'Baca.'" Woody acknowledged that prior to his testimony in 1997, he had spoken to Sergeant Walker, Deputy Moore, and Deputy Tesinski, and they discussed their observations about particular events. The deputies used Jack's identification of defendant to issue an "all-points bulletin."

When Tom arrived at the scene, he provided information about Jack's missing BMW and indicated some familiarity with defendant. At approximately 10:30 p.m., Deputy Shields transported Tom to the hospital. Upon arrival, Tom made a phone call and asked someone if he or she knew defendant's location. Shields instructed Tom to stop looking for defendant because it would possibly warn him. Tom made another call, allegedly to family, and started yelling loudly saying he wanted to know defendant's location. When Shields prevented Tom from making any further calls because he would interfere with the investigation, Tom started yelling and tried to leave. The two got into another argument and Shields arrested Tom for interfering with the investigation. Shields transported Tom back to the scene, turned him over to the investigators, and unarrested him. At the house, Tom took possession of Jack's valuables, including his wallet, ring, and watch.

The next day, Milot learned about the shooting and went to the hospital. She described Jack as conscious, agitated, and unable to talk. However, he communicated to her by squeezing her hand. After the killings, Tom was verbally abusive toward Milot because he "thought [she was] putting a nose in his business." She opined that Tom did not seem "terribly upset about his father's condition." Tom was the beneficiary of several life insurance policies with a total value of $162,880.

Detective Peters processed the scene. He found a .38-caliber revolver with six casings-four had been fired. Neither the gun nor the bullets contained any usable fingerprints. Tom's ex-girlfriend testified that the gun recovered from the scene looked like the same gun Tom used to carry.⁵ There was no evidence of a forced entry into the home. Law enforcement withheld certain information about the shooting from the public. Specifically, the public was not informed about the caliber of the firearm used, that it was left at the scene, or the location of the wounds on the victims' bodies.

5 The parties stipulated that Tom died in 2012 and was never charged in relation to the murders.

The parties stipulated that Mix died on August 6, 1995, at 11:30 p.m., and Jack died on August 16, 1995. They also stipulated that, on August 8, 1995, a Los Angeles County Sheriff's deputy recovered a gray 1985 BMW, license plate No. 2PHD373, parked and abandoned approximately 400 yards from Scott Park in the City of Carson. On August 15, 1995, another Los Angeles County Sheriff's deputy located defendant in the Scott Park area of Carson and placed him under arrest.

Daniel Melendez, a jailhouse informant, shared a cell with defendant; Melendez was also facing murder charges.⁶ The two knew each other from "the streets" when they both lived in Fullerton. Melendez described their relationship as "[l]ess than an acquaintance." While housed together in jail, defendant approached Melendez and reminded him of their past relationship. The two spent time together talking about family members and family issues with other people. During their conversations, defendant told Melendez about the murder of the victims. He described how he had been working at "China Jo's," and met the doctor's son who got him a job at the doctor's house, cleaning, cooking, and taking care of the house in exchange for living there. Defendant said that he learned that the victims were homosexual, and he "wasn't comfortable with it." Defendant expressed his disgust to the doctor's son who also "didn't like" the victims' relationship. Defendant credited the doctor's son with the plan to shoot the victims (making it "'look like a hate crime or three-way love triangle-type'" murder) and provided the .38-handgun. According to defendant, they killed the doctor for insurance money, and he (defendant) was to receive half.

6 The parties stipulated that the informant and defendant shared a cell at the Robert Presley Detention Center for three days from August 18 to 21, 1995.

Defendant told Melendez that he used the gun to carry out the plan, shooting both victims in the head while they were together at their home. When "one of them didn't die, [defendant] shot him again, and then the guy was screaming or crying . . . because he got shot, and [defendant] took off running." Defendant left the gun and fled to Carson where his sister was living. Afterwards, he spoke to the doctor's son who was mad and said, "'You fucked up. You left one alive.'" According to Melendez, defendant said that the doctor's son instructed him to "finish the job," but defendant refused.

Melendez knew details about the murders that were never released to the general public. When he spoke to the district attorney's investigator about his case, he mentioned defendant's name. Melendez provided information on defendant's case, hoping to get a benefit or less time in his own case. He also thought that he was helping defendant because he (Melendez) did not like the doctor's son getting away with murder. In February 1996, Melendez pled guilty to manslaughter; however, he remained in the county jail until 1998 so he could testify against defendant in 1997, and because he had not been sentenced. Melendez also testified against defendant in 2002 based on his belief that he would receive consideration for a lesser sentence; however, no one told him he would get time off his sentence for his testimony. Ultimately, he received a benefit for his testimony against defendant.

B. The Defense.

Defendant called several witnesses to attack the prosecution's case. They included: (1) his 11-year-old step-daughter, who testified that she did not "perceive any problems" between defendant and Jack; (2) several paramedics who responded to the scene and testified that Jack kept saying he could not breathe, and said Jack was unable to talk "very well" because he had been shot in the face; and (3) a retired sheriff's investigator who testified that Jack was unconscious when he was "brought to the hospital."

The defense theory was third-party culpability, placing the blame for the murders on Tom and two of his unidentified "cousins." In support of this theory, defendant presented testimony from witnesses who claimed that Tom knew he was going to be taken out of Jack's will and acted to prevent that from happening. Garland Lowe, an acquaintance of Tom, did not want to reveal what he knew about the murders because Tom had threatened Lowe and his girlfriend. Nonetheless, Lowe testified that, after the victims' murders, Tom asked and received Lowe's help in burglarizing Jack's home. Tom said he was looking for some paperwork, a will, and jewelry. They found an envelope full of paperwork, and after Tom confirmed that it was what he was looking for, they gathered the loot and left. When they returned to Tom's home, Lowe read the paperwork, and then Tom burned it. Lowe noticed it was Jack's "last will and testament," and Tom said it was what he was looking for because Jack was disinheriting him (Tom). Following the burglary, Tom left for Philadelphia and Lowe stayed at Tom's Desert Hot Springs residence. When Tom returned to pick up his stuff, he brought two "cousins,"⁷ who stated they "took care of the old man and his lover" and "were waiting for some money" from Tom. Lowe did not know the names of the "cousins" but stated that they both had guns and one was a "snubnose .38."

7 These two individuals are referred to as both friends and cousins.

From January through March 1997, Lowe was housed in the Riverside County jail; the parties stipulated that during this time, he shared a cell with defendant.⁸ During cross-examination, Lowe described defendant as a "scared rabbit" and opined that he either murdered the victims or knew about the murders. In further support of his theory, defendant offered the testimony of retired law enforcement officers/investigators who had interviewed Lowe and his girlfriend, at different times.

8 During the time Lowe shared a cell with defendant, Lowe spoke to his girlfriend, who was hysterical because Tom had threatened her and her two daughters. In response, in or about January 1997, Tom wrote a letter implicating Tom's "cousins" as the murderers.

III. DISCUSSION

A. Denial of Motions to Dismiss.

Defendant contends the trial court abused its discretion in refusing to grant either of his two separate motions to dismiss.

1. Motion to dismiss based on outrageous government conduct.

On October 26, 2016, defendant requested dismissal of all charges pending against him on the grounds that the "Riverside District Attorney's Office engaged in prosecutorial misconduct constituting outrageous governmental conduct." Specifically, in defendant's prior trials, the prosecution presented false testimony that Melendez (the informant) received nothing for testifying against defendant.

a. Further Background Information.

i. Defendant's first trial

During defendant's first trial in 1997, Deputy District Attorney (DDA) Paul Vinegrad called the informant's prosecutor, DDA Robert Spira, to testify about the informant's plea bargain to bolster his credibility. DDA Spira testified that the informant pleaded guilty to voluntary manslaughter with a firearm-use enhancement and was to receive a reduced sentence of 14 years and a housing recommendation for providing additional information about a coparticipant in his own case, but not for providing information about defendant. Although DDA Spira insisted that the informant's plea deal was not contingent on testifying against defendant, DDA Spira testified that the informant's sentencing hearing had been continued until after defendant's first trial because of the benefit of the bargain that he had entered was contingent upon his truthful testimony. When pressed on the issue, DDA Spira testified: "'I assume communications have been made to [the informant] as regards this case. I have not made those communications. I do not know what those communications are.'" (People v. Baca, supra, E032929.)

The informant testified that he had received no promises or consideration in exchange for his testimony against defendant; however, he had been told that he would get a recommendation letter from the prosecutor in defendant's case. Defendant was convicted and immediately appealed. On February 20, 1998, while defendant's appeal was pending, the informant was sentenced, and his counsel asked the trial court to unilaterally reduce the plea bargain "'primar[ily]'" because of the informant's testimony against defendant. Counsel claimed that the informant was given a reason to expect a reduction; however, the district attorney's office refused to agree to a reduction while defendant's case was on appeal. (People v. Baca, supra, E032929.)

DDA Spira confirmed their refusal to reduce the informant's plea bargain pending defendant's appeal and argued that the informant should not have expected a further reduction. The trial court appeared unconvinced. Recognizing it had no authority to reduce the informant's plea bargain without the prosecution's consent (see § 1192.5), the court asked prosecutors what they would do if it unilaterally reduced the plea. Although the prosecutors reiterated that they would not stipulate to a reduction "'because members of this office have made good faith representations to another judge and another jury, accurate representations from the knowledge that they had,'" they nonetheless indicated that they would not challenge a unilateral reduction by appeal or writ. The parties submitted the matter, and the court sentenced the informant to 11 years, thereby unilaterally reducing the plea bargain by three years. (People v. Baca, supra, E032929.)

After the informant was sentenced, we reversed defendant's convictions and remanded the matter for a new trial. (People v. Baca (Sept. 28, 1999, E021093) [nonpub. opn.].)⁹ In the months preceding defendant's second trial, there were two more hearings on the informant's sentence prompted by remands from the California Department of Corrections (CDC) to correct sentencing errors. DDA Spira represented the People at both hearings. (People v. Baca, supra, E032929.)

9 On the court's own motion, we take judicial notice of the record in defendant's prior appeal in People v. Baca, supra, E021093. (Evid. Code, §§ 452, 459; Cal. Rules of Court, rule 8.1115(b).)

ii. Defendant's second trial

Defendant's second trial began in October 2002, shortly after the modifications to the informant's sentence. DDA Spira testified again and generally repeated his prior testimony describing the informant's plea bargain. However, DDA Spira also asserted that during plea negotiations, they were working under the assumption that the informant would earn 50 percent good time credits and, thus, would only serve half of his sentence. DDA Spira claimed that the informant was sentenced in December 1997 to the agreed-upon 14 years, but the sentence was reduced to 11 years on February 20, 1998, after the department of corrections noted that he was only entitled to 33 percent credits. According to DDA Spira, the trial court picked the term of 11 years to approximate the same seven years of actual incarceration that the original 14-year sentence would have provided with 50 percent credits. (People v. Baca, supra, E032929.)

DDA Spira was asked: "'Bottom line, on February 20th, 1998, when [the trial court] reduced [the informant's] sentence from 14 years to 11 years, did that have anything at all [to] do with [the informant's] subsequent coming in to court and testifying in [defendant's] case?'" (People v. Baca, supra, E032929.) DDA Spira responded: "'No, it did not. It was referred back by the Department of Corrections. It did not come from the court here. It was a referral back from the state Department of Corrections for a clarification and amendment.'" (Ibid.) On cross-examination, DDA Spira further explained: "'I think probably the best way of putting it, in . . . the February 20, 1998, sentencing modification . . . [the trial judge] was essentially acting with the authority of the court in the sense that he knew what the intention was. And so it was his show, so to speak, in trying to roughly fashion implementation of that intent. [¶] So the bottom line is that while I was present . . ., as was [the informant's attorney], we really didn't have input, per se, as to what the judge did. He simply said, cutting to the chase, this is what I think needs to be done in order to affect what was intended.'" (Ibid.) DDA Spira also testified that the informant did not request any sentence reduction in exchange for cooperating against defendant. (Ibid.)

The informant similarly testified that he never provided information about defendant to help himself (informant). And, when asked whether he (or his counsel) had contacted anyone on the prosecution's side to try to get leniency in his case in exchange for information about defendant's case, the informant replied, "'No.'" (People v. Baca, supra, E032929.)

Following his conviction, defendant appealed, raising several challenges to his sentence, including DDA Spira's testimony that falsely bolstered the informant's credibility. (People v. Baca, supra, E032929.) We agreed that the prosecutor's testimony falsely bolstered the informant's credibility; however, we found no prejudice and affirmed the judgment. (Ibid.) Defendant filed a federal petition for a writ of habeas corpus, which was denied by the district court. He then appealed to the Ninth Circuit Court of Appeals. On January 30, 2015, the Ninth Circuit granted the unopposed motion of the Attorney General to summarily reverse the district court's judgment, and directed the court to enter an order granting a conditional writ of habeas corpus, releasing defendant from custody unless the state retried him within a reasonable period of time.

iii. Defendant's third trial

Prior to the start of his third trial, defendant moved to dismiss the case based on the prosecution's false testimony in his prior trials. Defendant argued that the prosecution had violated his rights and "if we set a precedent that passage of time can alleviate those wrongs, then that sets a precedent whereby somebody could mount false testimony, and then the District Attorney's Office could just fire that person and avoid the consequences thereafter." Acknowledging the "outrageous" act of the prosecutor, the trial court found there was "no showing that there's some sort of systemic corruption that existed at that time, or exists today," and the prosecutor's lie about the "three-year bargain that the informant received" made little difference to a jury evaluating the informant's truthfulness. The court, therefore, denied the motion, concluding that DDA Spira's false testimony did not merit dismissal, "the most severe of sanctions that could be granted." The third trial on the charges against defendant proceeded.

b. General Legal Principles.

"The power of a court to dismiss a criminal case for outrageous conduct arises from the due process clause of the United States Constitution." (Morrow v. Superior Court (1994) 30 Cal.App.4th 1252, 1259.) According to case law, when the prosecution's deliberate conduct interferes with a defendant's right to due process of law, such that the proceedings against him or her are rendered improper, dismissal is warranted. (See, e.g., People v. Velasco-Palacios (2015) 235 Cal.App.4th 439, 448-450 (Velasco-Palacios) [prosecutor's deliberate insertion of a confession into an interrogation transcript ultimately "severed the trust in defendant's attorney-client relationship, necessitated defendant waiving his attorney-client privilege, and led to the removal of counsel that defendant was comfortable with"]; Morrow, at p. 1261 ["prosecutor orchestrate[d] an eavesdropping upon a privileged attorney-client communication in the courtroom and acquire[d] confidential information"]; Boulas v. Superior Court (1986) 188 Cal.App.3d 422, 429, 433 ["authorities effectively short-circuited [defendant's] right to be assisted by counsel at a critical stage of the proceedings"]; People v. Moore (1976) 57 Cal.App.3d 437, 442-443 ["district attorney . . . undermined [defendant's] right to counsel, imperiled his life, overreached and lulled him with illusory promises, and caused substantial delays in his trial"].) Nonetheless, dismissal remains "an extraordinary remedy, . . . reserved for the few cases where conduct by the prosecution has completely eliminated the possibility of a fair retrial." (People v. Kasim (1997) 56 Cal.App.4th 1360, 1387; see People v. Guillen (2014) 227 Cal.App.4th 934, 1004-1005 ["'For a due process dismissal, the [g]overnment's conduct must be so grossly shocking and so outrageous as to violate the universal sense of justice. . . . [It] must be malum in se or amount to the engineering and direction of the criminal enterprise from start to finish.'"].) In other words, "a showing of prejudice to defendant's right to a fair trial [is] required and . . . the absence of such a showing preclude[s] dismissal as a sanction for prosecutorial misconduct." (People v. Uribe (2011) 199 Cal.App.4th 836, 841, 861 (Uribe) [prosecutor's "false testimony . . . in a peripheral hearing," while "a grave affront to the judicial system," did not justify dismissal since no prejudice to the defendant's right to a fair trial was shown].)

There is a split in authority as to the applicable standard of review. Some courts have applied the abuse of discretion or substantial evidence. (Boulas v. Superior Court, supra, 188 Cal.App.3d at p. 435; see Velasco-Palacios, supra, 235 Cal.App.4th at p. 445.) Others have independently reviewed "the trial court's finding that the governmental conduct was outrageous in violation of defendant's due process rights thereby warranting dismissal." (Uribe, supra, 199 Cal.App.4th at p. 858.) Here, the issue presented is a mixed question of law and fact that is predominantly legal. We, therefore, apply the de novo standard of review to the issue of whether due process precludes prosecution of the defendant under the circumstances here. (People v. Aguilera (2020) 50 Cal.App.5th 894, 908-909, 910 [de novo review is warranted where the underlying basis for the dismissal order is the trial court's interpretation of the right to due process because this interpretation is a legal matter].)

c. Analysis.

There is no dispute that egregious prosecutorial misconduct was committed in defendant's first and second trials. Rather, the dispute lies in whether it "constituted outrageous governmental conduct in violation of defendant's due process rights which justif[y] dismissal of the information." (Uribe, supra, 199 Cal.App.4th at p. 860.) Defendant argues that it does because the prosecutors intentionally committed misconduct to deprive him of an acquittal that they believed was likely to occur in the absence of their misconduct. (People v. Batts (2003) 30 Cal.4th 660, 695-696 [when prosecutorial misconduct results in a defendant moving for and obtaining a mistrial, retrial is barred (1) if the prosecutor intentionally committed misconduct to trigger a mistrial, or (2) if he or she, believing the defendant was likely to obtain an acquittal, knowingly and intentionally committed misconduct to thwart that acquittal].) We disagree.

According to defendant, the initial misconduct occurred as a direct result of trying to conceal the motivation of the informant to testify while defendant's first appeal was pending; and the second misconduct occurred during the second trial when DDA Spira lied about whether the informant had received a benefit to testify against defendant in order to prevent an acquittal. However, the record does not support defendant's interpretation of the gravity of the prosecution's misrepresentations or motivation. As the People point out, it makes little sense for a prosecutor to willfully lie about something that any competent defense attorney could effectively challenge with the public record from the informant's sentencing hearing-in this case, a three-year sentence reduction. Also, we note that the informant similarly testified that he never provided information about defendant in order to receive leniency in his case, and neither he nor his counsel contacted the prosecution to provide information about defendant's case in exchange for leniency in his. (People v. Baca, supra, E032929.) Moreover, each time the issue of prosecutorial misconduct was raised, defendant never asked for dismissal based on outrageous government conduct. Rather, he requested a retrial.

As we previously observed, and the record of defendant's third trial supports,¹⁰ the case against defendant was strong even without the informant's testimony. (People v. Baca, supra, E032929.) Jack clearly identified defendant as the shooter, and defendant was found near the last location of Jack's missing BMW. A three-year reduction from a 14-year plea bargain was unlikely to have much effect on the informant's credibility in the eyes of the jury. In other words, it is unlikely a jury would find a witness with a 14-year plea bargain credible, but not credible with an 11-year agreement. (Ibid.) The very nature of a jailhouse informant renders his testimony suspect even without any evidence of an explicit quid pro quo. Finally, some of the details recited by the informant could only have come from someone in possession of the intimate details of the murders, such as the references to a Chinese restaurant and a .38-caliber gun. Thus, the prosecution's representations, though egregious enough to warrant reversal of defendant's convictions, are insufficient to support a dismissal of the information.

10 The prior prosecutorial misconduct regarding the informant's plea bargain was not present in defendant's third trial. Instead, the prosecutor informed the jury about the benefits the informant received in exchange for his testimony against defendant, and defense counsel thoroughly cross-examined the informant about those benefits.

In sum, we remain unconvinced that this is one of "the few cases where conduct by the prosecution has completely eliminated the possibility of a fair []trial." (People v. Kasim, supra, 56 Cal.App.4th at p. 1387.) Accordingly, we find no error in the trial court's refusal to award the "extraordinary" sanction of dismissal. (Ibid.)¹¹

11 Because we reject defendant's contention that the trial court erred in refusing to dismiss the information based on the prosecution's false testimony, we likewise reject his contention (via supplemental briefing) that his counsel was ineffective for failing to move for dismissal based on double jeopardy. (People v. Batts, supra, 30 Cal.4th at pp. 695-696; U.S. v. Wallach (2d Cir. 1992) 979 F.2d 912, 915-916.) "'To establish ineffective assistance of counsel, a defendant must show that (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the defendant.' [Citation.] Defendant has not made this showing." (People v. Johnson (2015) 60 Cal.4th 966, 979-980.) For the reasons stated ante, we do not agree that the facts support a finding that retrial was barred by the prohibition against double jeopardy. Accordingly, defendant is unable to show that counsel's failure to argue double jeopardy was prejudicial.

2. Motions to dismiss based on failure to disclose/preserve exculpatory evidence.

In the dismissal motion filed on October 4, 2018, defendant charged the prosecution with failing to preserve "exculpatory evidence," to wit, the video recording of a burglary reenactment that law enforcement conducted with Lowe, who had assisted Tom in burglarizing the victims' home after their murders. (California v. Trombetta (1984) 467 U.S. 479 (Trombetta) and Arizona v. Youngblood (1988) 488 U.S. 51 (Youngblood).). In his dismissal motion filed on November 30, 2018, defendant accused the prosecution of violating the duty to disclose exculpatory evidence, to wit, Lowe's claim that Tom's "cousins" admitted to murdering the victims. (Brady v. Maryland (1963) 373 U.S. 83 (Brady).)

On appeal, defendant contends the trial court erred in finding that the prosecution did not intentionally, willfully, or in bad faith destroy the video reenactment of the burglary, and that Lowe's testimony was a sufficient alternative to the destroyed evidence.¹² He further faults the court for finding the prosecution's late production of the recordings of the burglary reenactment and interview of Lowe was due to negligence- not bad faith-which did not warrant the severe sanction of dismissal. We conclude defendant's claims are without merit.

12 Defendant also notes that, in addition to the video reenactment, Investigator Lopez prepared a written police report, also dated October 22, 1997; however, several pages of the report (pp. 15, 17, 18, and the pages following p. 19) were missing.

a. Additional Background.

Prior to defendant's first trial (May-July 1997), the defense identified Lowe as one of their witnesses. In response, DDA Vinegrad and District Attorney Investigator Manuel Lopez interviewed Lowe, who claimed that Tom threatened to kill Lowe because he knew too much. Lowe did not testify because he pled the Fifth Amendment. In July 1997, a jury convicted defendant of two counts of murder. Following defendant's conviction, the prosecution launched an investigation into Tom's role in the murders. Thus, in October 1997, Investigator Lopez interviewed Lowe, who confessed that he and Tom had burglarized Jack's home, took Jack's will, and burned it. Lowe was taken to Jack's home, and a reenactment of the burglary was videotaped. Lowe said that Tom threatened him and his girlfriend to keep them quiet.

On April 29, 2016, after this case had been remanded from the federal district court, defendant moved for immediate discovery of any investigative reports, and audio or video recordings, of witnesses interviewed in or out of custody. In August 2017, the prosecution provided the taped interview between Investigator Lopez and Lowe. Based on that evidence, on March 12, 2018, defendant again moved to compel production of discovery, specifically, all reports, audiotapes or videotapes of interviews with Lowe, any particulars of deals offered to Lowe, and the October 22, 1997, video reenactment of the burglary of Jack's home. On March 30, 2018, the prosecution disclosed handwritten notes pertaining to interviews of Lowe and other investigation reports concerning the murders.

The defense had possession of the transcript of Investigator Lopez's October 22, 1997, video interview of Lowe. In his interview, Lowe described their (Lowe & Tom) burglary of Jack's home, the discovery of Jack's last will and testament, and Tom's burning of the will. Lowe never mentioned Tom's "cousins." In another videotaped interview, Lowe reenacted the burglary at Jack's home.

On June 2, 2018, defense Investigator Victor Torres, interviewed Lowe regarding his January 1997 handwritten letter. According to the letter, Lowe suggested that Tom's "cousins" from Philadelphia made statements that they played a role in the murders of Jack and Mix. On October 4, 2018, defendant moved to dismiss the information based on the prosecution's destruction of Investigator Lopez's videotaped interviews of Lowe. On November 30, 2018, defendant filed another motion to dismiss based on exculpatory evidence-Lowe's declaration that Tom's "cousins" admitted to murdering the victims- and the prosecution's outrageous conduct in destroying the videotaped reenactment of Lowe and Tom's burglary of Jack's home. In support of his motions, defendant provided several exhibits, including a declaration from defense Investigator Torres who acknowledged that the defense had been provided with the prosecution's audiotaped interviews of Lowe from June 30 and July 10, 1997, and a videotaped interview from October 22, 1997. Also, included was a September 8, 2018 declaration from Lowe who claimed that he told Investigator Lopez about Tom's "cousins" during an audiotaped jail interview. In response, the prosecution pointed out in their 1997 interviews with Lowe that he never mentioned defendant's "cousins." Rather, the first time Lowe mentioned Tom's "cousins" was during his interview in June 2018 with Investigator Torres.

On May 2, 2019, defense counsel argued for dismissal of the information based on the prosecution's destruction of the videotaped interview of Lowe and the videotaped reenactment of the burglary. In response, the prosecutor acknowledged her belief that Tom had solicited the murders but argued the evidence was insufficient to prove it. She pointed out that the prosecution learned about Lowe in 1997 after reviewing defense counsel's trial witness list. When the prosecution first interviewed Lowe in or about March 1997, he gave "a statement about [his belief that] it was a murder-suicide and that [neither defendant] or Tom Adair were involved;" he did not implicate Tom and his "cousins."

The prosecutor noted that Lowe pled the Fifth Amendment and did not testify at defendant's first trial. However, after defendant was convicted in July 1997, Lowe agreed to be interviewed and participated in the burglary reenactment; Investigator Lopez videotaped the interview and reenactment in October 1997. During those interviews, Lowe never mentioned Tom's "cousins." Rather, when the prosecutor requested all reports that the defense had on Lowe, defense counsel produced Lowe's original January 1997 handwritten letter, which claimed the murders were committed by Tom's "cousins." Thus, the prosecutor argued that the only time Lowe mentioned Tom's "cousins" was in his handwritten letter, which was always in defense counsel's possession.

Regarding the loss of the videotaped burglary reenactment, the prosecutor explained that it was destroyed in the ordinary course of business; however, other recordings involving Lowe-including the videotaped interview conducted after the reenactment where they discussed what had taken place-were provided to the defense. The prosecutor clarified that there was a mix-up in case numbers-defendant's case was originally under an ICR number out of Indio; however, given the passage of years, the court stopped using ICR numbers and began using INF numbers. When the investigator interviewed Lowe, it was under a DAI number that was never connected with an ICR number. Thus, the prosecutor argued the destruction of the videotape was not done in bad faith, but in the ordinary course of business. Also, the prosecutor maintained that other recordings involving Lowe, including a videotaped interview wherein he discussed the reenactment, were provided to defense counsel, and Lowe and Investigator Lopez are still available to testify to everything Lowe said in his interviews.

The trial court conducted an evidentiary hearing, which included the testimony of Lowe, Investigator Lopez, and Investigator Torres. After taking the matter under submission, the court ruled in favor of the prosecution. The court explained: (1) defendant failed to show the loss of the videotape was done in bad faith, intentionally, or willfully; (2) defendant could obtain comparable evidence since Lowe was still available to testify; (3) any late discovery of a videotape of Lowe's interview was unintentional and not in bad faith; and (4) Lowe's handwritten note mentioning Tom's "cousins" was never in the prosecution's possession.

At trial, defense counsel called Lowe and Investigator Lopez as witnesses. Lowe testified about the burglary, the videotaped reenactment with law enforcement, and Tom's "cousins," who admitted to committing the murders, how they were waiting for Tom to give them money, and that they owned guns, including a "snubnose .38." Investigator Lopez testified about the videotaped reenactment of the burglary. Defendant also presented the testimony of two defense investigators who stated that Lowe had informed them about Tom's "cousins" claiming responsibility for the murders. During closing argument, defense counsel argued that Tom was the orchestrator of the murders; counsel focused on the burglary Tom committed with Lowe and the alleged culpability of Tom's "cousins."

b. General Legal Principles.

The due process clause of the United States Constitution requires the disclosure of material exculpatory evidence. (Brady, supra, 373 U.S. at p. 87.) "'[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to either guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.' [Citation.] Such evidence must be disclosed if it is material . . . ." (People v. Alvarez (2014) 229 Cal.App.4th 761, 771.) "On appeal, the defendant bears the burden to establish the components of a Brady violation. [Citation.] We independently review whether such a violation occurred but give 'great weight to any trial court findings of fact that are supported by substantial evidence.'" (People v. Jimenez (2019) 32 Cal.App.5th 409, 418.)

"'"Due process does not impose upon law enforcement 'an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution.'" [Citation.] At most, the state's obligation to preserve evidence extends to "evidence that might be expected to play a significant role in the suspect's defense."' [Citation.] Whether the loss of evidence rises to the level of a due process violation is governed by the principles set forth by the United States Supreme Court in Trombetta and Youngblood. [Citation.] Under Trombetta, law enforcement agencies must preserve evidence only if the evidence possesses exculpatory value that was apparent before it was destroyed and if the evidence is of a type not obtainable by other reasonably available means. [Citations.] As an alternative to establishing the apparent exculpatory value of the lost evidence, Youngblood provides that a defendant may show that '"'potentially useful'"' evidence was destroyed as a result of bad faith." (People v. Fultz (2021) 69 Cal.App.5th 395, 424-425.) "We review the trial court's decision on a Trombetta/Youngblood motion under the substantial evidence standard." (Fultz, at p. 424.)

c. Analysis.

i. Trombetta/Youngblood violation

Defendant contends the trial court erred in finding that the prosecution did not intentionally, willfully or in bad faith, destroy the video reenactment of the burglary because it was "indispensable as corroboration" that Lowe "clearly informed [Investigator] Lopez about the cousins and [their] admissions." We disagree.

First, the evidence must possess apparent exculpatory value. According to the prosecution, the videotaped reenactment contained only evidence of the reenactment of the burglary, not Lowe's statement identifying Tom's "cousins" as the murderers. The only evidence that Lowe actually made such a statement was his September 8, 2018 declaration. According to that declaration, Lowe told Investigator Lopez about Tom's "cousins" "[d]uring the two jail interviews," not the burglary reenactment. Immediately after the reenactment, Investigator Lopez transported Lowe to the district attorney's office and conducted a formal interview about the reenactment, and the information Lowe was providing. During this tape-recorded interview (played to the jury), Lowe stated his belief that defendant "either did it or knew about it"; however, he never mentioned Tom's "cousins." Thus, whether the videotaped reenactment of the burglary would have proven exculpatory is speculative.¹³ However, speculation about the exculpatory value of the evidence is inadequate to establish a due process violation. (People v. Alexander (2010) 49 Cal.4th 846, 878-879.) Thus, defendant has not met the standard of demonstrating the destroyed evidence "possess[ed] an exculpatory value that was apparent before the evidence was destroyed" (Trombetta, supra, 467 U.S. at p. 489) or the lesser standard under Youngblood that the destroyed evidence was "potentially useful" (Youngblood, supra, 488 U.S. at p. 58).

13 Since Investigator Lopez's written police report was prepared the same day as the videotaped reenactment and interview of Lowe, the same analysis applies to the missing pages. (See fn. 12, ante.)

Nonetheless, assuming, without deciding, that the videotaped reenactment meets the standard set forth in Youngblood as "potentially useful" to the defendant (Youngblood, supra, 488 U.S. at p. 58), defendant has failed to show that he was unable to obtain comparable evidence by other reasonably available means. (Trombetta, supra, 467 U.S. at pp. 488-489.) Here, Lowe was available to and did testify on defendant's behalf, discussing in detail his claim that Tom's "cousins" committed the murders. Defense counsel also offered the testimony of various retired law enforcement officers/investigators who had interviewed Lowe and his girlfriend at different times. Defense investigators Torres and Joseph Basha testified that when they interviewed Lowe, he informed them about Tom's "cousins" claiming responsibility for the murders. Moreover, the defense had Lowe's January 1997 handwritten note, which identified Tom's "cousins" as the murderers.¹⁴ Since comparable evidence was available, the videotaped reenactment of the burglary was not necessary to establish Lowe's identification of Tom's "cousins" as the murderers and, thus, no Trombetta violation occurred.

14 Defendant included Lowe as a witness in his first trial in 1997.

Defendant also argues the destruction of the video reenactment itself implies bad faith because it was destroyed while defendant's appeal was pending in the federal court, and the prosecutors involved had already shown a pattern of bad faith-manipulating Melendez's sentencing and providing false testimony. However, as the prosecutor explained, the videotape was destroyed in the ordinary course of business as the result of a mix-up in case numbers, i.e., the result of negligence.¹⁵ (People v. Flores (2020) 9 Cal.5th 371, 397 [It is settled that "negligence does not establish constitutional bad faith.".].) Given the record before this court, the evidence was sufficient for the trial court to conclude that the destruction of the video in the ordinary course of business was not outrageous enough to warrant a dismissal of all the charges against defendant. (People v. Kasim, supra, 56 Cal.App.4th at p. 1387 [dismissal of a criminal charge remains "an extraordinary remedy, . . . reserved for the few cases where conduct by the prosecution has completely eliminated the possibility of a fair retrial"].) Thus, the trial court did not err by denying the Trombetta motion.

15 The same analysis (mix-up in case numbers, i.e., the result of negligence) applies to the missing pages of Investigator Lopez's written police report.

ii. Brady violation

Defendant contends the trial court erred in refusing to find the prosecution's failure to timely disclose the video interview of Lowe at the district attorney's office constituted Brady error. While defendant admits that he received the videotape prior to his third trial, he argues that had it (including the videotaped reenactment of the burglary) been produced prior to his trial in 2002, it could have been used to conduct a fresh examination of Tom. We disagree.

"Evidence actually presented at trial is not considered suppressed for Brady purposes, even if that evidence had not been previously disclosed during discovery. [Citations.] In U.S. v. Devin [(1st Cir. 1990) 918 F.2d 280, 289] and U.S. v. Scarborough [(10th Cir. 1997) 128 F.3d 1373, 1376], the First and Tenth Circuit Courts of Appeals addressed an issue similar to the one presented here, explaining that when considering whether delayed disclosure rather than 'total nondisclosure' constitutes a Brady violation, 'the applicable test is whether defense counsel was "prevented by the delay from using the disclosed material effectively in preparing and presenting the defendant's case."' [Citations.] Both courts examined exculpatory evidence belatedly disclosed, ultimately finding no error arose from that delayed disclosure." (People v. Mora and Rangel (2018) 5 Cal.5th 442, 467.)

We similarly conclude that defendant was not prejudiced by the delayed disclosure of the videotape of Lowe's interview. Defendant used the video interview at his trial. Besides, as we previously noted, the videotaped interview of Lowe is void of his identification of Tom's "cousins" as the murderers, despite Lowe's declaration to the contrary. However, Lowe's January 1997 handwritten letter that first mentioned Tom's "cousins" was in defendant's possession, and Lowe was identified as a witness in defendant's first trial. Accordingly, no Brady error resulted.

Neither has defendant shown the trial court abused its discretion by declining to instruct the jury with CALCRIM No. 306¹⁶ pertaining to the untimely disclosure of evidence. While the court has discretion to give an instruction on untimely disclosure of evidence, it should not do so unless there is evidence of a prejudicial violation of the discovery statute. (See People v. Bell (2004) 118 Cal.App.4th 249, 256 ["The rationale behind California's discovery statute is that neither side should be allowed to engage in, or be subjected to, a trial by ambush."].) There was no such prejudicial violation here. As the prosecutor pointed out, neither she nor defense counsel knew what discovery was turned over prior to defendant's 2002 trial.¹⁷ And, she provided defense counsel with all discovery in her possession, two years prior to defendant's current trial. As a result, the delayed discovery instruction (and any mention of the untimely disclosure of the 1997 videotaped interview of Lowe) was properly denied.

16 CALCRIM No. 306 provides, in pertinent part: "Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. [¶] An attorney for the (People/defense) failed to disclose [specified evidence] [within the legal time period]. [¶] In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure."

17 In his reply brief, defendant discounts this claim, contending "[t]he party that respondent represents is the People of the State of California, who were represented all along by the Office of the District Attorney, and were, indeed involved in that trial." Defendant seems to argue that a DDA who retries a case that was tried nearly two decades earlier by another DDA should have the knowledge of, and be held responsible for, the actions taken by the DDA who first tried the case. We disagree. Too many years passed between defendant's second (2002) and third (2019) trials.

B. Alleged Evidentiary Errors.

Defendant asserts the trial court prejudicially erred and violated his constitutional rights by admitting Jack's statements-which identified defendant as the assailant-to the first-responding officers. He also contends the court abused its discretion in excluding the transcript of the 911 call to assist the jury.

1. Admission of Jack's statements to the first-responding officers.

a. Additional Background.

Before trial, the prosecution moved to admit the challenged evidence. The prosecutor argued the statements fell within the spontaneous declaration exception to the hearsay rule, and they were outside the scope of Crawford v. Washington (2004) 541 U.S. 36 (Crawford), and Davis v. Washington (2006) 547 U.S. 813 (Davis) because they were the result of questioning during an ongoing emergency. Defendant simultaneously moved, in limine, to exclude the statements as a testimonial and in violation of the Sixth Amendment. Defendant argued that law enforcement's prolonged questioning of Jack delayed his transfer to the hospital and contributed to his death.

At the hearing on the motions, the prosecutor explained there were four first-responding officers-Sergeant Walker, Deputy Moore, Deputy Woody, and Deputy Tesinski-who arrived at the scene within "minutes" of the shooting. The deputies quickly began clearing the house and attending to the victims; Mix was unconscious on the ground with a gunshot wound to his head, and Jack-who had suffered two shots in the face-was frantic and pleading for help. Walker and Moore were the first officers to respond. While Moore was clearing the house, Walker asked Jack, "'Who shot you?'" Because of his gunshot wounds to the face, it was difficult to understand what he was saying; however, he was able to say, "'Baca, Johnny Baca.'" The officers continued to ask Jack to identify the shooter, even after paramedics arrived. The prosecutor argued that Jack's identification of defendant was not testimonial because "there's an ongoing emergency with [the deputies] trying to identify and capture the suspect of a shooting that just occurred."

Defense counsel argued that Jack's statements were testimonial because there was "no indication that [he was] in peril," the "perpetrator is gone," "[Deputy] Moore has already cased the unit," and a gun was found. However, counsel conceded that the court could bifurcate the questioning by the officers and conclude that it was okay for Walker to ask, "'Who shot you' right away, and that by itself can be seen to be as non-testimonial." After learning defendant's name, it became "a stale crime scene" and a "formalized interrogation."

In reply, the prosecutor pointed out that the deputies did not ask whether the gun they found was the one that was used or how the shooting occurred. Rather, they were trying to locate the shooter, not seeking information "for a prosecution purpose." Regarding Deputy Woody and Deputy Tesinski, the prosecutor argued that when they arrived, they tried to get Jack to calm down. They did not know what Jack had said to Sergeant Walker, so they also asked, "'Who shot you?,'" without going further and asking, "'Where was he?'"

Overruling defense counsel's objection, the trial court concluded there was no Crawford violation concerning Deputy Woody and Deputy Tesinski's questioning because "it's still an ongoing emergency. It's not interrogation. Not to seek testimonial evidence."

b. Analysis.

"Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception." (Evid. Code, § 1240.) "'"The foundation for this exception [to the hearsay rule] is that if the declarations are made under the immediate influence of the occurrence to which they relate, they are deemed sufficiently trustworthy to be presented to the jury. [Citation.] [¶] The basis for this circumstantial probability of trustworthiness is 'that in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of one's actual impressions and belief.'" [Citation.]' [Citation.] Because the inquiry into whether a statement qualifies as a spontaneous declaration is factually driven, we will not disturb the trial court's ruling on this issue unless there has been a demonstrable abuse of discretion." (People v. Brenn (2007) 152 Cal.App.4th 166, 172-173.)

Here, the record shows that Jack called 911 immediately after being shot, and the investigating deputies arrived within minutes. Although his statements were made in response to the deputies' questions-a factor that militates against spontaneity-his answers appear to have been disjointed, suggesting a lack of deliberation and measured thoughtfulness. The deputies found Jack pacing back and forth with a blood-soaked towel pressed against his face. He repeatedly blurted out, "'Oh, my God'" and "'help him,'" referring to Mix. When he tried to speak, he would remove the bloody towel from his face and begin bleeding again. According to the deputies, Jack was "in quite a bit of distress," "kind of mumbling," "bleeding profusely," "agitated," and "very upset." Despite the shock and pain he was suffering, Jack's statements, made shortly after the shooting, were generally coherent. Since his statements were made under the stress of the traumatic event and while his reflective powers were suspended, we cannot say the court abused its discretion in finding they qualified as spontaneous declarations under Evidence Code section 1240. (See People v. Brenn, supra, 152 Cal.App.4th at p. 173 [victim's statements to 911 dispatcher and responding officer about his stabbing incident admissible as spontaneous declarations].)

Having determined Jack's statements were admissible under state law, we now turn to defendant's claim that their introduction violated his right of confrontation under the Sixth Amendment. "In Crawford, the United States Supreme Court held that the admission into evidence at trial of an otherwise admissible 'testimonial' hearsay statement of a declarant who is unavailable to testify violates the confrontation clause of the federal Constitution unless the defendant has had a prior opportunity to cross-examine the declarant. [Citation.] The Crawford court declined to give a comprehensive definition of 'testimonial,' stating only that it 'applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.' [Citation.]

"The Supreme Court revisited what was 'testimonial' in Davis . . . and Hammon v. Indiana [(2005) 546 U.S. 976 (Hammon)]. The court differentiated between statements made to respond to an ongoing emergency and statements made to establish or prove past events relevant to a later criminal prosecution [citation]; among other things, it considered the formality of the circumstances, or lack thereof, to be 'essential.' [Citation.]

"Regarding Davis . . ., the court held that a recording of an alleged domestic violence victim's 911 call, in which she reported events as they were actually happening, was nontestimonial because she faced an 'ongoing emergency' at the time and her 'frantic' call 'in an environment that was not tranquil' was 'plainly . . . for help against a bona fide physical threat.' [Citation.] The 911 operator's questioning 'elicited statements [that] were necessary to be able to resolve the present emergency,' including learning the identity of the suspect, 'so that the dispatched officers might know whether they would be encountering a violent felon.' [Citation.] Under these circumstances, the declarant 'simply was not acting as a witness; she was not testifying.' [Citation.]

"As for Hammon . . ., the court held that an alleged domestic violence victim's statements to a police officer in her living room while a second officer confined the suspect in the kitchen were testimonial. The court noted that the officers had responded to a domestic disturbance report to find the alleged victim alone on her front porch, where she told them nothing was wrong. (Davis, supra, 547 U.S. at p. 819.) During the subsequent interview in her living room, she said the suspect had physically abused her, and the interviewing officer had her fill out and sign a battery affidavit. (Id. at p. 820.) In holding that the alleged victim's oral and written statements were testimonial, the court noted she made them when 'there was no immediate threat to her person,' and that the questioning officer was not seeking to determine '"what is happening,"' but rather '"what happened."' (Id. at p. 830.) The court considered the declarant's statements were 'formal enough' because she and the suspect were physically separated, the police questioned the declarant about past events and the interview 'took place sometime after the events described were over.' [(Ibid.)]

"The Supreme Court further clarified what constituted 'testimonial' statements in subsequent cases. In Michigan v. Bryant (2011) 562 U.S. 344 . . ., police responding to a report of a shooting found a man shot in the abdomen lying on the ground by his car in a gas station parking lot around 3:25 a.m., in great pain and able to speak only with difficulty. [Citation.] The officers asked him what had happened, who had shot him, and where the shooting had occurred. [Citation.] The victim answered their questions in a conversation that ended in five to 10 minutes when medical services arrived. [Citation.] He died within hours. [Citation.] The court concluded his statements were not testimonial because he made them during an ongoing emergency, speaking 'within the first few minutes of the police officers' arrival and well before they secured the scene of the shooting-the shooter's last known location.' [Citation.] Furthermore, the shooter's whereabouts and motive were unknown and, thus, the officers had 'no reason to think that the shooter would not shoot again if he arrived on the scene' [citation], and the victim's physical distress suggested he did not give his statement with the primary purpose of establishing or proving past events potentially relevant to later criminal prosecution [citation]. Also, 'the questioning . . . occurred in an exposed, public area, prior to the arrival of emergency medical services, and in a disorganized fashion' [citation], and the questions the officers asked 'were the exact type of questions necessary to allow the police "'to assess the situation, the threat to their own safety, and possible danger to the potential victim'" and to the public' [citation]. [¶] . . . [¶]

"The California Supreme Court, based on Crawford and related cases, has given guidance to our courts regarding how to determine whether a statement is testimonial. When police are involved, the court has instructed that we must evaluate the circumstances and the statements and actions of the parties to determine 'the primary purpose of both officer and declarant' based objectively on '"the purpose that reasonable participants would have had."' [Citation.] Furthermore, we 'should consider whether an "'ongoing emergency'" exists, or appears to exist, when the statement was made,' even 'if hindsight reveals that an emergency did not, in fact, exist.' [Citation.] 'Whether an ongoing emergency exists is a "highly context-dependent inquiry"' that may take into account whether the victim, first responders, or the public remain at risk. [Citation.] Also, 'regardless of the existence of an emergency, the informality of the statement and the circumstances of its acquisition are important considerations.' [Citations.]

"Where, as here, the defendant made contemporaneous objections during trial, the prosecution, 'as the proponent of the evidence, . . . had the burden to show the challenged testimony did not relate testimonial hearsay.' [Citations.] [¶] On appeal, we independently review whether a statement was testimonial, implicating the constitutional right of confrontation." (People v. Ramirez Ruiz (2020) 56 Cal.App.5th 809, 822-825.)

Defendant contends that Jack's statements were testimonial because the primary purpose of questioning him was for interrogation purposes since (1) the scene was "cleared and the gun located by the time the questioning occurred," (2) the officers "appeared to prolong the interrogation," and (3) "the emergency treatment was stalled and took second place to the officers' interrogation." We disagree. The deputies arrived within minutes of the shooting; Jack's statements were not yet the product of an interrogation, rather they were made to the deputies who were investigating an ongoing emergency. They observed one gun, Mix unconscious but still breathing and gurgling on the floor, and Jack who was frantically pacing back and forth with a blood-soaked towel pressed against his face. The deputies did not know if the shooting was between Jack and Mix or if someone else had been involved. It was objectively reasonable for them to ask Jack to identify the shooter and to believe that the shooter remained at large, presenting an emergency. (Michigan v. Bryant (2011) 562 U.S. 344, 377 [the police officers' "primary purpose was simply to address what they perceived to be an ongoing emergency"].) Even if we accept that Jack's statements to Deputy Woody and Deputy Tesinski are, arguably, testimonial, we do not agree that the same may be said about his statements to Sergeant Walker and Deputy Moore, the first two officers to arrive at the scene.¹⁸ As Moore secured the premises, Walker's primary purpose in questioning Jack as to who had shot him was to ascertain what was happening. (People v. Sanchez (2016) 63 Cal.4th 665, 689 ["[t]estimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony" while nontestimonial statements "are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial"].)

18 Even defendant's trial counsel conceded that Sergeant Walker and Deputy Moore's questioning was nontestimonial.

To the extent the trial court erred in admitting Jack's statements in response to Deputy Woody and Deputy Tesinski's questions, we conclude the error was harmless. (People v. Rutterschmidt (2012) 55 Cal.4th 650, 661 [Crawford error is reviewed for prejudice under the Chapman v. California (1967) 386 U.S. 18 standard, which requires reversal unless we find beyond a reasonable doubt that the error was harmless.].) The properly admitted evidence overwhelming supports a finding of guilt on the charged offenses. In addition to Jack's statements to Sergeant Walker, defendant fled the scene in Jack's BMW, he was later picked up by a Los Angeles County Sheriff's deputy in an area where Jack's BMW was found, and he confessed to Melendez that he had murdered Jack and Mix. Against the weight of the properly admitted evidence, we find the admission of Jack's statements to Woody and Tesinski was harmless beyond a reasonable doubt.

2. Exclusion of the 911 transcript.

Defendant contends the trial court abused its discretion when it permitted the jury to listen to the audio recording of Jack's 911 call, without providing a transcript of the recording.

a. Additional Background.

The prosecution moved, in limine, to exclude the transcript of Jack's 911 call. The prosecutor explained that due to the "severe injuries to his mouth," Jack was "having trouble articulating words and phrases" during the call. And, given the "completely unintelligible and/or inaudible" portions of the call,¹⁹ she could not stipulate as to the accuracy of the transcript, and the witnesses should not be asked to "guess or speculate as to what is being said on the recording." The prosecutor argued that "[i]f a transcript is used that contains words or phrases in areas that are in dispute, the jury would likely tend to rely on the transcript and make the transcript the evidence-not the actual recording as is required by law." Thus, she wanted to avoid the jury using the transcriptionist's interpretation of what "she thought [Jack] said." Defendant objected to the motion in limine and requested the transcript be provided jury as "an aid."

19 The prosecutor pointed out that the 911 operator stated, "I can't understand him. I don't know what he's saying."

The trial court listened to the tape "very, very carefully," found it to be relevant, and "briefly look[ed] at the transcript." Citing People v. Salcido (2008) 44 Cal.4th 93, 147 ["the prosecution is not required to accept a stipulation '"if the effect would be to deprive the state's case of its persuasiveness and forcefulness,"'"], the court stated: "[I]f the People are not willing to stipulate to a transcription, then my ruling is that a transcription of the 911 tape is not going to be allowed." The court then overruled the defense objection and granted the prosecution's motion, explaining that "it's the tape that is the evidence, not the transcription."

During trial, the parties stipulated that Jack is the person heard on the 911 call, which was received at 8:43 p.m. During closing, defense counsel referenced the 911 call and argued: "My estimation for you to determine if you listen to this tape, two different times [Jack] is asked, 'Who shot you?' First time I believe he said, 'Someone.' Second time they asked him again, 'Do you know who shot you?' He says, 'No.' [¶] [The prosecutor] asked you in her closing argument, what else could [Jack] have done about this case? Well, he could have told dispatch that Johnny Baca killed him. That would have been something that he could have done. By saying 'someone,' and 'no,' I think it's a pretty strong indication he did not know the shooter. [¶] But again, listen to that tape as often as you can, but I think it's pretty clear what [Jack's] responses are."

The prosecutor replied: "You can hear at different points in time, there are things that [Jack is] saying that clearly you can't hear and you can't understand it, just because obviously he's injured. But apparently [defense counsel] can hear it. The defense, Oh, when they ask him the first time, he said somebody. You listen to it yourself, and you see if you hear 'somebody.' He said something, it's unintelligible. There's a lot of stuff on there you won't be able to understand. I don't know where they got 'somebody.' Again, what we say is not evidence. So [defense counsel] saying he heard 'somebody' doesn't matter. That didn't come from the witness stand. You can't use that. But listen to it. [¶] Oh, I do like how the defense turned this case on the victim. This man who is shot is on the phone trying to get help to that house. And you can hear him say, 'Hurry, help, help,' on that phone call. Why didn't he say Baca on that phone call? Because he was worried about getting help. Why didn't he say it to the paramedics? Police ask him who shot him, they're the investigators, he tells them. When the paramedics are getting there, what is he saying to them? The stuff that matters to them. 'I can't breathe. Help me. I can't breathe,' over and over."

b. Legal Principles.

A defendant has the right to present relevant evidence in support of his or her defense. (Trombetta, supra, 467 U.S. at p. 485; Chambers v. Mississippi (1973) 410 U.S. 284, 302.) However, this right is not unlimited (Chambers, at p. 269; People v. Ayala (2000) 23 Cal.4th 225, 282), and "'[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's [constitutional] right to present a defense. Courts retain . . . a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice.'" (People v. Cudjo (1993) 6 Cal.4th 585, 611.) Thus, the trial court may "exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice . . . ." (Evid. Code, § 352.)

"[A] tape recording may be admissible even if substantial portions of it are unintelligible." (People v. Siripongs (1988) 45 Cal.3d 548, 574.) "'"To be admissible, tape recordings need not be completely intelligible for the entire conversation as long as enough is intelligible to be relevant without creating an inference of speculation or unfairness."'" (People v. Polk (1996) 47 Cal.App.4th 944, 952.) However, before the transcript of an audio recording may be admitted, its accuracy "must first be established. [Citation.] While ordinarily a trial judge will listen to [an audio] recording to determine the accuracy of the transcription [citation], this procedure does not constitute the exclusive method for establishing its authenticity." (People v. Ketchel (1963) 59 Cal.2d 503, 518 [officer verified transcript by testifying transcript correctly represented the conversation he had heard], overruled on other grounds by People v. Morse (1964) 60 Cal.2d 631, 649, 656.) The accuracy of a transcription of an audiotape may be stipulated to by the parties; however, "the prosecution is not required to accept a stipulation '"if the effect would be to deprive the state's case of its persuasiveness and forcefulness."'" (People v. Salcido, supra, 44 Cal.4th at p. 147; see U.S. v. Robinson (6th Cir. 1983) 707 F.2d 872, 876 ["the preferred practice is not to submit transcripts to the jury unless the parties stipulate to their accuracy"].)

"We review claims regarding a trial court's ruling on the admissibility of evidence for abuse of discretion. [Citations.] Specifically, we will not disturb the trial court's ruling 'except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.'" (People v. Goldsmith (2014) 59 Cal.4th 258, 266.)

c. Analysis.

We have listened to the 911 call's recording and reviewed its transcript. Portions of the recording are unintelligible. At best, Jack's responses to the operator's questions are subject to speculation, specifically, his response to the question, "Do you know who shot you?" According to the transcript, the response was "someone" or "no," but the prosecutor disagreed, opining the response is unintelligible.²⁰ Because the prosecutor disagreed with the transcription of the audiotape, she refused to stipulate to its use as an aid for jurors, preferring to have them listen to the tape themselves. On appeal, defendant argues the trial court should have carefully compared the transcript to the audiotape (as often as necessary), directed the parties to meet and agree on what portions should be deleted or replaced with the word "inaudible" or "unintelligible," ordered irrelevant and prejudicial portions deleted, recommended the prosecution prepare a transcript representing its version of the recording, and permitted the jury to compare the different versions while listening to the recording. We disagree.

20 The portion of the transcript in question provides: "FIRE DEPARTMENT: Okay, do you know who shot you? "CALLER: Someone. . . Oh, (moaning) "FIRE DEPARTMENT: Can you tell. . . can you tell me who shot you? "CALLER: No. (Unintelligible)"

Although the better practice may have been for the court to follow the actions suggested by defendant, we cannot say that not doing so amounts to an abuse of its discretion in refusing to admit the transcript of the 911 call. (cf. People v. Brown (1990) 225 Cal.App.3d 585, 597 [trial court did not err in failing to inquire into who prepared the transcript of the recording, and how it was prepared, prior to determining its accuracy and reliability].) Generally, a recording constitutes the evidence of what was said, and a transcript of the recording is used only as an aid in following and understanding the recording. If the recording and the transcript conflict, the recording controls. (Id., at pp. 598-599.) Here, the trial court provided the jury with the evidence of Jack's responses to the 911 operator's questions when it admitted the recording of the call.

Nonetheless, defendant asserts that the "[trial] court's error of denying proper use of the transcript without a fair examination of the transcript in relation to the tape weakened [his] defense in a case where identity was the key issue and [he] was prejudiced." ²¹ Not so. To begin with, we note that the court did look at the transcript, albeit "briefly," but explained that the tape is the "real evidence." More importantly, defendant has failed to identify anything other than mere speculation to support his contention that the failure to provide the jury with the transcript weakened his case. The defense theory was third-party culpability, placing the blame for the murders on Tom and his unidentified "cousins," not defendant. In closing argument, defense counsel began by playing the 911 recording. He called attention to the two different times Jack was asked, "'Who shot you?'" The first time Jack responded, "'Someone.'" The second time he said, "'No.'" Emphasizing these responses, counsel argued that Jack's failure to identify defendant as his killer is "a pretty strong indication he did not know the shooter." However, as the People point out, a transcript that designated the portions of the 911 call as "unintelligible"²² would have undercut defense counsel's argument that Jack said, "[s]omeone" and "[n]o." Other than the 911 call, there was no evidence that counsel could have referenced to challenge Jack's identification of defendant as the shooter. Because no error is shown, we conclude the court did not abuse its discretion in refusing to admit the transcript of Jack's 911 call.

21 In his reply brief, defendant attributes the jury's delay in reaching a verdict (nearly 12 days of deliberation) as a strong indicator of prejudice.

22 Because the prosecutor did not agree with the transcription of the 911 call and refused to stipulate to its use, any stipulated transcript would have indicated Jack's responses as "unintelligible."

C. Jury Instruction.

Defendant contends the trial court erred in instructing the jury with CALCRIM No. 315 because Jack did not testify as an eyewitness, and the consideration of witness certainty (one of the factors the jury is allowed to consider when assessing the credibility of an eyewitness identification) presented a greater risk of juror confusion. We find no error.

1. Additional background.

When Jack called 911, fire department personnel asked him if he knew who had shot him. Although his responses are unintelligible, defendant contends Jack first said, "Someone," and then said, "No." Officers who responded to the 911 call testified that Jack identified defendant as the shooter.

The prosecution requested the jury be instructed with CALCRIM No. 315, regarding eyewitness identification testimony. According to this instruction, the jury may consider up to 15 factors in evaluating eyewitness identification testimony, one of which is the witness's level of certainty.²³ Specifically, the jury was instructed: "You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether an eyewitness gave truthful and accurate testimony. [¶] In evaluating identification testimony, consider the following questions: [¶] . . . [¶] How certain was the witness when he or she made an identification?" Defense counsel objected, arguing the instruction did not apply. In reply, the prosecutor claimed the victim is the eyewitness. The trial court included the instruction out of an "abundance of caution."

23 The other 14 factors are: "Did the witness know or have contact with the defendant before the event? [¶] How well could the witness see the perpetrator? [¶] What were the circumstances affecting the witness's ability to observe, such as lighting, weather conditions, obstructions, distance, [and] duration of observation[, etc.]? [¶] How closely was the witness paying attention? [¶] Was the witness under stress when he or she made the observation? [¶] Did the witness give a description and how does that description compare to the defendant? [¶] How much time passed between the event and the time when the witness identified the defendant? [¶] Was the witness asked to pick the perpetrator out of a group? [¶] Did the witness ever fail to identify the defendant? [¶] Did the witness ever change his or her mind about the identification? [¶] Are the witness and the defendant of different races? [¶] [Was the witness able to identify other participants in the crime?] [¶] [Was the witness able to identify the defendant in a photographic or physical lineup?] [¶] Were there any other circumstances affecting the witness's ability to make an accurate identification?" (CALCRIM No. 315.)

During her closing argument, the prosecutor depicted Jack as an "eyeball witness" and described numerous indicators of certainty, saying: "He can ID him. He says his name to four different cops. He spelled it. He directs them to a paper with the man's name on it. Ask yourself, what more could he have done to tell us who did this to him, take a little blood off his face and write his name on the wall in blood? What more could he have done for somebody who was basically on his way out? He saw [defendant] with his own eyes."

In response, defense counsel used CALCRIM No. 315 to support his primary theory of third-party culpability: "One of the jury instructions that you-are instructed upon dealt with eyewitness identification. And there's a whole litany of things, and a lot of them don't apply in this case. But there was one in particular, which talks about ever failure-ever failing to make identification. And I would submit to you at the earliest possible moment that [Jack] had the opportunity to make that identification of [defendant], he failed to do it. He didn't do it. That would have been the most lucid time for him, when he just recently had been shot as opposed to several minutes later as he loses blood and he becomes less and less attentive. [¶] So again, are the cops, police believable in this case? You know, we spent a lot of time talking about in the beginning of the case, about the police officers. I believe clearly Sergeant Walker came here and lied. I think it's fairly evident. She didn't prepare a police report. . . ." Counsel later added that no one "corroborated or verified" that Jack blurted out defendant's name in response to the police questioning, "except the police." Thus counsel argued: "[A]re you really comfortable accepting these assertions by the police that this is exactly what [Jack] said, when he's in all that kind of stress and critical condition? And are they reliable? Even if you assume, for example, that they were made, are they really reliable? Can you be certain that they're reliable? That the gentleman is bleeding profusely, he's obviously in a tremendous amount of stress from undergoing this, under tremendous amount of trauma. Do we even know those statements are reliable? Assuming for a minute that they were actually made to the police, which I think there's reason to question that as well. But that's up to you to decide."

2. Analysis.

According to defendant, CALCRIM No. 315 did not apply in this case because Jack was not an eyewitness, he did not testify in court, rather his statements identifying defendant were derived from the officers responding to the scene, and his statements were ruled to be non-testimonial and not subject to the confrontation clause of the Sixth Amendment. Defendant further contends the instruction was improper given the "near unanimity in the empirical research that 'eyewitness confidence is generally an unreliable indicator of accuracy.'" (People v. Lemcke (2021) 11 Cal.5th 644, 647.) As we explain, we reject his contentions.

Jack was an eyewitness to the shootings that took his life and that of his partner. Prior to his death, he identified defendant as the shooter. Although he did not live long enough to testify in court, his eyewitness identification of defendant was introduced via the first-responding deputies to his 911 call. Because Jack's eyewitness identification was a key element of the prosecution's case, and it was not substantially corroborated by evidence that gave it independent reliability, the jury was instructed with CALCRIM No. 315. This instruction related Jack's identification to reasonable doubt by including relevant "pinpoint" factors. (People v. Wright (1988) 45 Cal.3d 1126, 1140-1144 [discussing CALJIC No. 2.92, a predecessor to CALCRIM No. 315, which includes similar language regarding witness certainty].) Under the circumstances of this case, the instruction provided sufficient guidance on the subject and, therefore, was proper.

As for defendant's second challenge to the instruction, d espite the empirical research showing that a witness's confidence in an identification is generally not a reliable indicator of accuracy, our state Supreme Court has held that the certainty question in CALCRIM No. 315 does not violate his right to due process. (People v. Lemcke, supra, 11 Cal.5th at p. 661 ["when considered '"in the context of the instructions as a whole and the trial record,"' [citation], we conclude that listing the witness's level of certainty as one of 15 factors the jury should consider when evaluating an eyewitness identification did not render [the defendant's] trial fundamentally unfair or otherwise amount to a due process violation"].) Moreover, other instructions undercut any argument that the certainty instruction, coupled with the prosecutor's arguments, prejudiced defendant's right to a fair trial. The jury was also instructed that defendant was presumed innocent, and the People had the burden of proving guilt beyond a reasonable doubt (CALCRIM No. 220), that they "may believe all, part, or none of any witness's testimony," and they must "judge the credibility or believability of the witnesses" (CALCRIM No. 226).

Accordingly, defendant's claim of instructional error is without merit.

D. Restitution Order.

Defendant argues the trial court's imposition of $10,000 in victim restitution was "unauthorized" because it was not imposed following his prior trials and lacks a proper factual basis. We need not reach this issue because we conclude the court abused its discretion in ordering $10,000 in victim restitution when there was no factual basis to support such an award.

1. Additional background.

Following defendant's second trial in 2002, the trial court imposed a $200 restitution fine, pursuant to section 1202.4, subdivision (b), but did not order victim restitution under subdivision (f). At defendant's recent sentencing hearing, the court stated its intent to impose a $200 restitution fine, in addition to $10,000 in victim restitution. The following exchange occurred:

"[DEFENSE COUNSEL]: The record should reflect we've objected to $10,000, because I don't believe it was imposed back then. I'm not sure if it's legally able to be done. But apparently from the minute order, that "$10,000 was not imposed in 1997, only $200 restitution.

"THE COURT: All right. Well, the Court is going to impose restitution because . . . [s]omeone had to pay for the funerals. . . .

"[THE PROSECUTOR]: I would say that $10,000 is appropriate, your Honor. I mean I don't understand how they would only give $200. But the Court is-I don't know that the Court is bound by that, but it just doesn't make any sense to me.

"THE COURT: I'm going to sentence it. The law is very clear, the victim's family needs to be reimbursed for expenses. So I'm going to set it at the max amount of $10,000. Because obviously . . . there were two funerals, two separate funerals, so I'm sure there were costs involved."

2. Legal principles.

Pursuant to former section 1202.4,²⁴ subdivision (f), a trial court must order restitution to victims who have "suffered economic loss as a result of the defendant's conduct." The amount of restitution must be "based on the amount of loss claimed by the . . . victims or any other showing to the court." (Ibid.) "The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution." (§ 1202.4, subd. (f)(1).) "At that hearing, the prosecution bears the initial burden of making a prima facie showing of the victim's economic loss. Once that showing is made, the burden shifts to the defendant to demonstrate that the amount of the loss is other than that claimed by the victim. [Citations.] Section 1202.4 does not by its terms require any particular type of evidence. [Citation.] The standard of proof is preponderance of the evidence. [Citation.] [¶] On appeal, we review the trial court's order for abuse of discretion. [Citation.] No abuse of discretion occurs if the restitution order is supported by a rational and factual basis. [Citation.] We reverse only if the trial court's order is arbitrary or capricious." (People v. Aguilar (2016) 4 Cal.App.5th 857, 862.)

24 Section 1202.4 has been amended several times. We use the version in effect at the time of defendant's sentencing. (Stats 2018, ch. 142, § 1, eff. Jan. 1, 2019.) Even if we used the version in effect in 1995 (Stats 1995, ch. 313, § 5, eff. Aug. 3, 1995), when defendant committed the offenses, our analysis remains the same. In August 1995, section 1202.4, in relevant part, provided: "(f) In every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims. . . . [¶] (g) Restitution ordered pursuant to subdivision (f) shall be imposed in the amount of the losses, as determined. The court shall order full restitution unless it finds clear and compelling reasons for not doing so, and states them on the record. . . . Restitution shall, to the extent possible, be of a dollar amount that is sufficient to fully reimburse the victim or victims, for every determined economic loss incurred as the result of the defendant's criminal conduct . . . . [¶] . . . [¶] (h) A restitution order imposed pursuant to subdivision (f) shall identify the losses to which it pertains, and shall be enforceable as a civil judgment."

3. Analysis.

Here, there was no factual or rational basis for the trial court to order defendant to pay victim restitution. There was no probation report and nothing in the records of defendant's prior trials that established the cost of the victims' funeral expenses. Moreover, neither the People nor the victims' families requested restitution. Nonetheless, the trial court set restitution "at the max amount of $10,000 [b]ecause obviously . . . there were two funerals, two separate funerals, so I'm sure there were costs involved." But the record is void of any evidence of the losses incurred by the victims or their family members because of defendant's conduct. Since there was no factual basis for the award, the trial court abused its discretion in ordering defendant to pay $10,000 in victim restitution and, thus, the order must be reversed. Furthermore, there is no need to remand the matter because no one requested such restitution.

IV. DISPOSITION

The victim restitution order is reversed. The trial court is directed to prepare an amended abstract of judgment omitting the order and forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.

We concur: MILLER J., FIELDS J.