Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA103516, Allen J. Webster, Jr., Judge.
Yujuan Banks, in pro. per., and Diana M. Teran, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ZELON, J.
Defendant Yujuan Banks appeals from the judgment entered following his conviction by jury of one count of murder. No meritorious issues have been identified following a review of the record by defendant’s appointed counsel and our own independent review of the record and analysis of the multiple contentions presented by defendant in a handwritten supplemental brief. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant shot and killed Eric Dawson after an argument over a parking space. An information charged defendant with one count of murder (Pen. Code, § 187; count 1), with special allegations he committed the offense using a firearm (Pen. Code, § 12022.53, subds. (b), (c), (d) & (e)(1)) and for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)(C)). It was also specially alleged defendant had previously served two separate prison terms for felonies (Pen. Code, § 667.5, subd. (b)). Lakisa Crowder was charged as a codefendant with being an accessory after the fact (Pen. Code, § 32; count 2). The defendants were tried jointly by jury.
According to the trial evidence, on the night of March 2, 2008, Shandra Craig drove into her apartment complex and saw a car parked in her assigned space. The car belonged to a relative of her neighbor Anyo Austin, and Craig had Austin move the car. An altercation ensued between the Craig family and the Austin family over the parking space. Eric Dawson, the father of Craig’s daughter, arrived and became involved in the dispute. He engaged in a heated argument with Austin and a man known as Tank. Defendant showed up with a rifle or a shotgun, which he handed to Tank and said, “Get him cuz.” Defendant fled as Tank was attempting to fire the weapon. Defendant produced a handgun and started shooting. Tank also began firing his weapon. Dawson suffered three gunshot wounds and died. Both Austin and defendant belonged to the Neighborhood Crips gang. Defendant’s gang moniker was U-Dog. Dawson was a member of the rival Kelly Park Crips gang. A gang expert opined the shooting was committed for the benefit of the Neighborhood Crips gang.
The primary issue at trial was the identity of the shooter. The shooter was described as having corn rows/braids extending to the back of his head. When defendant was arrested on April 9, 2008, his hair was short with no braids. There was evidence that defendant at one time had corn rows/braids, but subsequently had them cut off.
The prosecution introduced evidence that on March 3, 2008, the day after the shooting, Craig identified defendant as the shooter from a six-pack photographic line-up assembled by police. Craig told police she had previously seen defendant at Austin’s apartment and recognized him as U-Dog. Craig also identified defendant in court as the shooter.
Craig’s daughter identified both defendant and Tank from a photographic line-up, but she could not say which of the two men shot her father. Dawson’s mother identified defendant in the photographic lineup as looking like the man who shot her son.
The prosecution also introduced evidence that while Crowder was visiting defendant in jail on May 2, 2008, she was seen writing on a piece of paper. Crowder was arrested because visitors and inmates are prohibited from communicating except by telephone. Crowder turned over the piece of paper to sheriff’s deputies, and a search of defendant yielded another piece of paper. Handwritten statements on both pieces of paper potentially incriminated defendant, in particular, his statements instructing Crowder to hide certain clothing and to have defendant’s relatives lie about the timing of his most recent haircut. A second piece of paper was also found on Crowder. It contained statements about defendant’s relative telling someone that defendant had cut his hair, about Crowder being asked if she had heard who committed the murder, and about Crowder having to testify at the preliminary hearing.
Defendant did not testify in his defense, but his barber, Fakur Muhammad, testified that defendant had been given three haircuts in February 2008, which made his hair too short to braid in the first week of March 2008. During a taped police interview on April 10, 2008, Muhammad said defendant had wanted a haircut two weeks earlier, but he had been too busy so B.J. cut defendant’s hair instead. B.J. confirmed to police he had cut off defendant’s braids one to two months earlier.
The jury convicted defendant of murder with true findings on the fire-use arm and gang allegations. The jury was unable to reach a verdict as to codefendant Crowder, and the trial court declared a mistrial on count 2.
Defendant was sentenced to an aggregate state prison term of 50 years to life. The prior prison term allegations were dismissed on the People’s motion.
DISCUSSION
We appointed counsel to represent defendant on appeal. After examination of the record counsel filed an opening brief in which no issues were raised. On November 30, 2009, we advised defendant he had 30 days within which to personally submit any contentions or issues he wished us to consider. On December 28, 2009, we received a handwritten supplemental brief in which defendant challenged his conviction and sentence on a number of grounds. Although none of defendant’s claims presents an arguable issue, pursuant to People v. Kelly (2006) 40 Cal.4th 106, 110, 120-121, we identify defendant’s contentions and explain the reasons they fail.
1. Claims of Prosecutorial Misconduct
Defendant contends prosecutorial misconduct deprived him of due process. He cites numerous instances of asserted misconduct based on the prosecutor’s asking leading questions, as well as challenging a witness’s answer during defense counsel’s cross-examination, and misstating the evidence in arguing to the jury.
“‘A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process.’ [Citations.] Under California law, a prosecutor who uses deceptive or reprehensible methods of persuasion commits misconduct even if such actions do not render the trial fundamentally unfair. [Citations.] Generally, a claim of prosecutorial misconduct is not cognizable on appeal unless the defendant made a timely objection and requested an admonition. [Citations.]” (People v. Doolin (2009) 45 Cal.4th 390, 444.) An exception is when the ‘“misconduct [is] pervasive, defense counsel [has] repeatedly but vainly objected to try to curb the misconduct, and the courtroom atmosphere was so poisonous that further objections would have been futile.’ [Citations.]” (People v. Friend (2009) 47 Cal.4th 1, 29.) But this case, while vigorously litigated by all parties, did not rise to that level. We conclude the trial court maintained firm control over the conduct of the attorneys to ensure fair proceedings.
a. Asking leading questions
“A ‘leading question’ is a question that suggests to the witness the answer that the examining party desires.” (Evid. Code, § 764.) Contrary to defendant’s assumption, merely because a question is pointed or calls for a “yes or no” answer does not mean it is leading. One example, which is cited by defendant, will suffice: The prosecutor asked Shandra Craig, “Now, do you recall seeing [Banks] run?” Craig answered, “I don’t recall seeing him run.” Accordingly, some of the questions defendant objected to as leading were entirely proper.
In any event, defendant failed to object to some of the asserted leading questions he cites on appeal, thus forfeiting the claims. With respect to other questions, defendant failed to request a motion to strike or an admonition. The trial court sustained defendant’s objections to some leading questions, thus obviating any prejudice. Indeed, the court made sua sponte objections to some of the prosecutor’s questions.
Regarding any asserted leading question cited on appeal to which the trial court overruled an objection, we discern no abuse of discretion in the court’s rulings and no prejudice to defendant. We also see no prejudice from any of the other leading questions cited on appeal, which were forfeited for failure to object or failure to request a motion to strike or an admonition. Given this record, we conclude defendant suffered no prejudice.
b. Challenging a witness during cross-examination
During cross-examination by defense counsel, the prosecutor interrupted and challenged the witness’s answer, as conflicting with the witness’s earlier testimony on direct examination. The trial court immediately admonished the prosecutor in front of the jury, stating that her interruption was unacceptable and ordering her comment stricken from the record. Here, although intemperate, the prosecutor’s brief remark was harmless, given the quick intervention and admonition by the trial court, which prompted the prosecutor to refrain from engaging in any further inappropriate behavior.
c. Asserted misconduct in closing argument
“When a claim of misconduct is based on the prosecutor’s comments before the jury, “‘the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’” [Citations.]” (People v. Friend, supra, 47 Cal.4th at p. 29.) Defendant contends the prosecutor repeatedly “lied” or gave personal opinions during argument rather than relying on the trial evidence. Defendant has forfeited these contentions in the absence of an objection during closing argument. Nonetheless, they are without merit. The prosecutor’s argument was based on reasonable inferences from the evidence, to which defense counsel aggressively responded when it was her turn to argue to the jury. Additionally, we note the jury was instructed that statements by counsel were not evidence. (CALCRIM No. 222.) We presume the jury followed these instructions. (See, e.g., People v. Cunningham (2001) 25 Cal.4th 926, 1002 [prosecutor’s inaccurate assertions in opening statement found harmless where trial court instructed the jury that opening statement was not evidence].)
2. Evidentiary Errors
What defendant characterizes as judicial misconduct, are actually claims of evidentiary errors, none of which is grounds for reversal.
a. Failure to sustain hearsay objections
Over defense hearsay objections, prosecution witnesses testified to having heard other family members say, “Don’t shoot my (daddy or son)” when defendant handed Tank the rifle or shotgun. We do not think these statements were offered for their truth, and thus were never hearsay. To the extent they could have been, the trial court properly determined each statement was admissible as an excited utterance (Evid. Code, § 1240).
b. Aranda-Bruton error
Defendant also contends the trial court violated his confrontation rights by committing Aranda-Bruton error (see Bruton v. United States (1968) 391 U.S. 123 [88 S.Ct. 1620, 20 L.Ed.2d 476]; People v.Aranda (1965) 63 Cal.2d 518) when it admitted into evidence the handwritten statements exchanged by defendant and codefendant Crowder. The trial court ruled these communications did not implicate defendant’s confrontation rights.
Exhibit 24, defendant’s handwritten statement, reads: “‘Call my cousin Monique today and tell her the get down. Tell her to tell her baby that works at the barber shop in Paramount and South Street that he cut my hair off in February. Don’t talk to her over the phone. Call her when you get out of here and tell her to come see you in person to tell her that. Tell her to stop by the house when she gets off work so you can tell her that. They told so – so they should be coming to see him or her, but for sure him. It’s very important right now. [¶]... [¶] I think cause baby mama telling. Because my lawyer said a girl. So that’s who might keep telling her by herself. When you get my clothes out the cleaners hide my brown South Pole outfit. Put it in one of them black trash bags and take it and put it under a dresser or take it and put it up at Spider house in the garage.’ [¶]... ‘Tell everybody I cut my hair in February. Did you tell the detectives you was in the apartment when it happened or you left before then. The shirt they described it brown and cream and white checkered button up. Gun shells and pieces from a gun. Checking for fingerprints.’”
Defendant’s handwritten statements instructed Crowder to take certain steps to cover up his involvement in the murder, thereby implicating himself in the crime. Crowder did not testify, and while her handwritten responses potentially incriminate defendant under Aranda-Bruton, any error here was harmless beyond a reasonable doubt in view of other overwhelming evidence of defendant’s guilt. (Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705]; People v. Cage (2007) 40 Cal.4th 965, 991-992 [applying Chapman’s harmless error analysis to Sixth Amendment error].)
Defendant’s additional claim that the admission into evidence of the handwritten statements contravened his Sixth Amendment rights under Crawford v. Washington (2004) 541 U.S. 36, 51 [124 S.Ct. 1354, 158 L.Ed.2d 177] is without merit because the statements did not amount to “testimonial” hearsay. (Id. at p. 51.)
c. Admission of photographs of tatoos
The prosecution had defendant’s tattoos photographed during trial for the purpose of showing his gang involvement. Before the trial court and now on appeal, defendant asserts he was assaulted and injured by sheriff’s deputies when he refused to be photographed in jail. (Defense counsel was not told in advance these photographs would be taken.) Defendant maintains that he experienced “head pain” as a result of his injuries and was therefore unable to follow the trial proceedings. The record provides no support for these claims which are more appropriately decided in a habeas corpus proceeding where all relevant facts can be developed. (People v. Avena (1996) 13 Cal.4th 394, 419.)
3. Other Issues
To the extent other issues are perfunctorily asserted by defendant-namely he was not present when the trial court stated, “That’s for you to decide” in response to a question posed by the jury, the court wrongly denied the defense request for a witness in custody to appear in civilian clothes, although the witness was never called to testify, the court erroneously instructed the jury with CALCRIM No. 371 (Consciousness of Guilt – Suppression of Evidence), although there was no defense objection at the time and the court confused the jury and rushed the proceedings-they are either harmless, or entirely devoid of either evidentiary or legal support and, in an any event, have been abandoned in light of the lack of legal argument and citation to authority. (See People v. Barnett (1998) 17 Cal.4th 1044, 1107, fn. 37.)
We have examined the entire record and are satisfied defendant’s attorney has fully complied with the responsibilities of counsel and no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly, supra, 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436, 441.)
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J.JACKSON, J.
Exhibit 25, Crowder’s handwritten statement reads: “‘What they say what you had on? They said a button brown. They said a button, it says brown. I told them I was there when it happened and told them some bullshit. They didn’t ask what time it happened. It was like 7:00 – 7:30.’”
Exhibit 36, Crowder’s handwritten statement reads: “J-Rock said Ferrod acting scary and he don’t know about Joe. And Nutta, I know if they gone do it, they need to do it soon. What about – and my brother, he said do you need him. [¶] It’s Pana just to let you know, that gay bitch yelled out, I need that fade. I’m kill – what appears to say kill you.’ [¶]... ‘When your cousin called since said she had told somebody you been cut. You been cut your hair.’ [¶]... ‘When they come to the house the said they were driving through the neighborhood and stopped to see how I was doing. They asked could I tell them who did it or what were on street.’ [¶]... ‘Baby, you coming home on the 8th, right? Or that’s just another’ [ ] ‘hearing. Am I going to have to get on the stand that day?’”