Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C148264
RIVERA, J.
Defendants Delvond Brown, Rowmond Brown, Erick Jay Richardson, and Robert Rubio appeal judgments entered upon jury verdicts finding them guilty of first degree murder. We shall order the indeterminate abstracts of judgment amended to correct clerical errors. In all other respects, we shall affirm the judgments as to all four defendants.
Because defendants Delvond and Rowmond Brown, who are brothers, share the same last name, we will on occasion refer to them by their first names only. We mean no disrespect by this designation.
1. BACKGROUND
A. The Charged Murder of Thomas Anderson
Defendants were jointly charged in count one with the murder of Thomas Anderson. (Pen. Code, § 187, subd. (a).) The information included various firearm and prior conviction allegations. In count two, Rubio was charged with possession of a firearm by a felon. (§ 12021, subd. (a)(1).)
All undesignated statutory references are to the Penal Code.
Anderson’s mother, Faye Anderson, testified that when she came home from work at 5:30 p.m. or 5:45 p.m. on the afternoon of September 2, 2003, Anderson was asleep. He woke up and went outside, then came back about 10 minutes later to say he was going out with a friend for a while. After he left, Ms. Anderson heard gunshots. She went outside and saw Anderson lying in the street, mortally wounded.
On that afternoon, Anderson was hanging out with other people, including Antione Dickerson, at the corner of 48th Avenue and Vicksburg Avenue in Oakland. According to Dickerson’s testimony, a car came down 48th Avenue toward Vicksburg, turned right on Vicksburg, went to 50th Avenue, made a U-turn, and came back to the corner of 48th Avenue and Vicksburg. Dickerson’s companions scattered, and Dickerson ran away. Shortly afterward, he heard gunshots.
Dickerson spelled his name “Antione” at trial. Other witnesses referred to him as “Antoine, ” “Antee, ” or “Ante.”
Lashawnda Wills was driving on Vicksburg on the date in question, with her two young children. Lashawnda saw Dickerson trying to make an African-American male with “dreads” or braids move over or push someone back. A turquoise-green car passed her, then turned, came back, and collided with the left rear side of Lashawnda’s car. The turquoise car became hooked onto Lashawnda’s car, and she could not move her car. Someone from the other car screamed, “Move, move.” Lashawnda saw four African-American men in the car. She told them she could not move her car. One of the passengers in the rear seat said, “Move, bitch. Before I shoot your motherfucking ass, ” and pointed a gun at her. She repeated that she could not move her car. The other car backed up, turned around, went down Vicksburg, and stopped at the area where Dickerson was standing. Some of the occupants got out of the car, and Lashawnda saw someone leaning against a car. Shortly afterward, Lashawnda heard shots. She saw the person leaning against the car fall to the ground, and saw him being shot after he fell.
Lashawnda Will’s sister, Lawanda Wills, also testified in this case. To avoid confusion, we will refer to them by their first names. We intend no disrespect by this designation.
At the preliminary hearing, Lashawnda testified that the person Dickerson was restraining looked like he might have had a small gun in his hand. At trial, she did not recall him having a gun.
The sequence of events is not entirely clear, but it appears from Lashawnda’s testimony that she saw Dickerson before the collision.
The person holding the gun had his hair in a “shortcut” or a “bald fade, ” and had acne on his face. Other occupants of the turquoise car had dreads. Lashawnda identified the gun as an Uzi. She believed the driver of the turquoise car had dreads. Lashawnda did not recognize any of the defendants in the courtroom.
Deanna Haley, who lived on Vicksburg, heard shouting in the area of Vicksburg and 48th Avenue at around 6:00 p.m. that day. She looked toward 48th Avenue and saw three people, including Anderson and “At.” It appeared to her that there had been an argument and “At” had defused the situation. A few minutes later, she heard more arguing, went to her front door, and saw Anderson being shot by two young African-American men she did not recognize, whom she described to a 911 operator as dark-skinned. One had dreadlocks, and was wearing a white T-shirt and blue jeans. The other had short hair. They continued to shoot Anderson as he lay on the ground. She saw a turquoise car leave the area. She saw five African-American males in the car.
It appears that “At” was Dickerson. A number of the participants in these events were known by variations on their names. Where appropriate, we use the names or the spelling used in the relevant portions of the record.
Haley testified at trial that she would not describe Rubio as dark-skinned. She also testified that she knew Rowmond, and that he was not one of the shooters.
Another witness, Jessie Johnson, had seen a “greenish” car with several African-American occupants a few blocks away, driving recklessly in a zigzag manner up 48th Avenue. About half an hour after the car passed, he heard gunshots. He had told Sergeant Jeffrey Ferguson in October 2003, that when he was on 48th Avenue on the day in question, he saw a turquoise Oldsmobile driving in a zigzag pattern, that four African-American men in their early twenties were in the car, and that one of them looked like Delvond Brown. He told Ferguson he saw the car go down the hill toward Vicksburg, and that he heard an argument when the car was at the bottom of the hill. He knew that Anderson and Dickerson were there, and that Dickerson’s car was parked there. He heard gunshots that sounded like they came from two different guns. He ran to Vicksburg, and by the time he got there, Anderson was “leaking, ” and Deanna Haley was giving him CPR. He did not see the turquoise car.
An autopsy showed that Anderson died of multiple bullet wounds. Shell casings found at the scene were all.380 and.45 caliber.
B. Jeffrey Bunn’s Statements and Testimony About Anderson’s Murder
Because the statements and testimony of Jeffrey Bunn are both confusing and relevant to some of the issues on appeal and in the related petition for writ of habeas corpus, we will discuss them separately.
Jeffrey Bunn testified at trial that he was nearby at the time in question, riding a “go-cart.” He went to a store with Anderson, then the two separated. Anderson went to take a nap. Bunn heard about 17 shots, and a few seconds later saw three African-American males running to a turquoise green car on Vicksburg and 48th Avenue. He saw Anderson lying on the ground. He identified defendant Richardson as one of the people who ran to the car, an Uzi in his hand, to the front seat, and defendant Rubio as another person who ran to the car, a nine-millimeter gun in his hand, to the back seat on the driver’s side. He identified defendant Rowmond Brown as the driver of the turquoise car. Another person, wearing a white T-shirt and blue jeans, ran to the car and got into the back seat on the passenger side. Bunn identified that person as Delvond Brown, and said he had a gun. Bunn initially testified that he had not seen any of them before that day; he later testified that his initial trial testimony had been a lie and that he knew and could describe all of the defendants because he had sold marijuana to them in the past.
Later in his testimony, he said that he had seen the three who shot Anderson getting out of the car, and that the driver never got out of the car.
He described Rubio as having bumps or acne on his face and crossed eyes.
He knew their nicknames: Rowmond Brown’s nickname was Row; Delvond Brown’s was Snail, Richardson’s was E-Moe (sometimes spelled in the record as Emo); and Rubio’s was Cross-Eyed Rob. He said he had lied about knowing them because he was ashamed that he sold marijuana.
Bunn had made statements before trial, some of which were inconsistent with his trial testimony. In a conversation with Sergeants Jeffrey Ferguson and Gus Galindo of the Oakland Police Department two weeks after Anderson was killed, Bunn said four people had been present when Anderson was killed. He described two of them as having dreadlocks, one as having a “crooked eye” and bumps on his face, and the driver of the car as having short hair. He identified Richardson, Rubio, and Rowmond Brown from photographic lineups. He was also shown a photographic lineup that included a picture of Delvond Brown, but did not identify anyone. At trial, Bunn testified that he had told the officers, untruthfully, that he had seen someone get out of the car before the shooting. He acknowledged being untruthful about “a whole bunch of stuff, ” and explained his lies by saying, “I just lost my mind.” He later testified that he had given the officers false information because he wanted to go home.
Bunn had also testified at the preliminary hearing. There, he said that he saw all four defendants driving in the turquoise car and get out, carrying weapons. Three of them approached Anderson. Bunn heard arguing, then all four defendants shot Anderson. Defendants then ran to the car and drove away. At trial, he said he had lied at the preliminary hearing, and that he had testified at the preliminary hearing about things he had not seen himself, but that others had told him about. In particular, he admitted at trial that he had testified falsely that he had seen all four defendants getting out of the car, that he had heard an argument before the shooting, and that he had seen four people shooting Anderson.
Bunn had also signed a declaration that was inconsistent with his trial testimony. At trial, he testified that some time after the preliminary hearing, a friend told him that a lawyer wanted to talk to him, and said he would be given money if he talked with the lawyer. He went to the home of David Kelvin, counsel for defendant Rubio. According to Bunn, Kelvin told him that if he signed a document, he would not have to testify again. To avoid testifying again, he signed the document. Bunn had never spoken with Kelvin before that time, and the document had already been prepared for his signature when he arrived. The document was a declaration stating that Bunn was not present at the time Anderson was killed, that his testimony at the preliminary hearing was untrue, and that he had testified to what Sergeant Ferguson had told him to say.
The declaration stated: “I, Jeffrey Bunn, declare as follows: [¶] I have no idea who killed Thomas Anderson for the simple reason that I was not present at the time he was killed, and therefore did not see what happened. [¶] My testimony at preliminary examination on August 20, 2004 was not the truth. Sergeant Ferguson told me what he wanted me to say, and that is what I said[.] [¶] No one has threatened me to obtain this declaration, which is made of my own free will. I met voluntarily with attorney David I. Kelvin at his home... on June 19, 2006, at approximately 7:00 PM, at which time Mr. Kelvin asked if he or anyone else pressured me to sign the declaration. I replied that no one had done so. [¶] I declare under penalty of perjury the foregoing is true and correct. Executed on June 19, 2006, at Oakland, California.”
Bunn testified that the month before he testified at trial, he had been arrested for possession of cocaine, and that charges were pending against him. He had been promised that his testimony at trial could not be used against him in a prosecution for perjury. His understanding was that he would not be prosecuted for any perjury he committed while testifying at trial. He testified, however, that even if his grant of immunity did not cover perjury committed in front of the jury at trial, his testimony would not change.
He later changed his testimony to indicate he did not think he had immunity for committing perjury at trial. He acknowledged however, that he had no concern whatsoever about lying under oath, and admitted having committed numerous acts of perjury during trial.
C. The Uncharged Killing of Michael Thompson
Earlier on the afternoon Anderson was killed, Michael Thompson was seated in a car driven by his friend, Milton Smith. They stopped at a traffic light at Bancroft and 90th Avenue in Oakland. Someone shot at them, striking both Thompson and Smith. The car stopped in front of a nail salon, and the two men went inside. Thompson collapsed on the floor, and Smith called for an ambulance.
Officer Michael Munoz of the Oakland Police Department received a call at about 4:50 p.m. and went to the nail salon. The car parked outside had bullet holes. Thompson was fading in and out of consciousness. Munoz asked Thompson who had shot him, and Thompson told him “six male Blacks, ” and said they had dreadlocks. He also described a Nissan station wagon. Thompson died of his wounds. Two bullets were recovered from his body.
An Oakland Police Department criminalist who testified as an expert in firearms examination and investigation concluded that certain of the bullets and casings from the scene of the Thompson killing were fired from the same guns as those from the scene of the Anderson killing.
D. Defendants’ Statements
1. Rowmond Brown
On the evening of November 5, 2003, after being arrested, Rowmond Brown was advised of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436) and was interviewed by Sergeants Ferguson and Galindo. He acknowledged having driven in his turquoise car down 48th Avenue, zigzagging and showing off, then making a U-turn at 50th Avenue, and sideswiping a lady.
As we will discuss in detail below, the statements of both Rowmond and Delvond Brown were redacted before the jury heard them. (See section II.B.1, infra.) This summary of their statements is drawn from the redacted versions heard by the jury.
In a taped statement made shortly after midnight on November 6, 2003, Rowmond was again advised of his Miranda rights. He said he had seen Anderson earlier on the day he was killed, with “Ante” and some females. He picked up his turquoise car from a detail shop around 4:00 p.m. or 5:00 p.m. He went to 48th Avenue and Vicksburg to buy some marijuana, driving in a zigzag manner. He made a U-turn, and hit a woman’s car. He heard multiple gunshots, and learned later in the day that Anderson had been killed.
At approximately 9:00 a.m. on November 6, 2003, Rowmond made another taped statement. He said that on the evening of September 3, he was visiting a friend, and another friend, “Kev, ” pulled up in a white Nissan Maxima station wagon. Rowmond asked him what had happened on 90th Avenue, and Kev said, it got “real ugly.”
Rowmond made another taped statement at approximately 11:30 a.m. the same morning. In it, he acknowledged being in the rear of the Nissan station wagon when Thompson was shot at 90th and Bancroft. He said Kev was driving the car. He saw a burgundy car being shot at before driving away. He heard someone saying, “[T]here you go right there, ” and shots went off, but he did not know who said it. It could have been Kevin. He thought Kevin was shooting a gun, and he was pretty sure of that because “[i]t was two different shots.” Afterwards, they went to a detail shop, got into Rowmond’s car, and went to “four eight” to buy marijuana. He also said he did not know why the shooting happened, and that he did not want it to happen.
2. Delvond Brown
In the early morning hours of November 6, 2003, Delvond Brown was also advised of his Miranda rights. He said he had had twisties or dreads since 2000. He initially said he heard of the killing at 48th and Vicksburg when someone called the mother of his child, whom he was visiting, and said someone had been killed. As the interview progressed, however, Delvond said, “All right, I’ll tell you.” He continued, “It was not supposed to happen like that. I was just going to fight that guy.” Delvond said that he saw Anderson among a crowd of people. Delvond had been in the back seat, and he “bounced out” at 48th Avenue and Vicksburg, ready to fight. He did not have a gun, and Antee stopped him from fighting Anderson. As Antee tried to break up the fight, Anderson said to Antee, “Get that nigger off me. I ain’t got my thang on me.” Delvond was “mad as hell, ” but told the officers, “I’m a fighter, not a killer, ” and said what was done to Anderson was wrong. Delvond said he did not have a weapon. After leaving the intersection, he visited the mother of his child.
In a taped statement made at almost 5:00 a.m. on the same morning, Delvond was again advised of his Miranda rights. He said he was at 48th Avenue and Vicksburg on the day of Anderson’s death. He was in a turquoise car owned by a friend of his. He saw Antee and Anderson. When he saw Anderson, he said, “There he go, ” and “bounced out ready to fight him.” He was mad and wanted to fight Anderson. He tried to get to Anderson, and told Antee to get him away from Antee’s car, because he knew there would be a fight and did not want to “mess up” Antee’s car. Antee pulled Delvond away. Delvond denied having a gun with him. Anderson said, “Antee get that man off me. I ain’t got my thang on me.” “Thang” was a street term for gun. Delvond heard gunshots and took cover. He did not see who was shooting. He left and went to his “baby mama[’s]” house.
At approximately 6:00 a.m. the same morning, Delvond had an unrecorded interview with Sergeants Luis Cruz and Mark Dunakin regarding the shooting of Thompson. He initially said he had not been in the white station wagon and was not at the scene of the shooting. He later admitted he had been in the rear passenger’s seat when Thompson was killed, saying they saw the vehicle Thompson was in driving down MacArthur Boulevard, that they made a U-turn, pulled alongside the other vehicle, and started shooting. He said Kevin, the driver, was not one of the people who was shooting.
At approximately 10:15 a.m. the same morning, Delvond gave another taped statement. He acknowledged having been present at the shooting of Thompson at 90th and Bancroft. Kev was driving a white Nissan Maxima wagon. Kev saw a burgundy car, and said something like, “[T]hat’s them, ” or “[T]hat’s that car.” Kev followed the car and pulled up at a light. Delvond “[saw his] friend on the side of [him, and said] what’s up to him.” They got in the right-hand lane, pulled up, and “that’s when the shit happened.” Delvond did not recognize the car or its occupants. Delvond said Kevin, who was driving, did not do any shooting. Delvond saw guns. He recognized one as Kevin’s. Someone—not identified in the redacted tape played to the jury—was shooting. Asked the source of the conflict with the occupants of the burgundy car, he said some people from West Oakland had come onto their turf and accused them of stealing rims from them. The occupants of Kevin’s car then rode around and got rid of Kevin’s car. Delvond also said that before going home, he “got dropped off, like I’m outta here, yo niggas is crazy.”
3. Erick Richardson
Richardson was also interviewed after being advised of his Miranda rights. He said he had been wearing his hair in dreads for three years. He acknowledged that he knew Kev. He said he bought marijuana on 48th Avenue, that he did not know the person who had been killed there, and that he had heard about the murder.
E. Other Witnesses’ Statements to Officers
Some of the trial witnesses had earlier given statements to police officers, some of which were more detailed than their trial testimony or contradicted their trial testimony.
The day after Anderson was killed, the primary investigator on the case, Sergeant Ferguson, and his partner, Sergeant Galindo, interviewed Dickerson. Dickerson told them that on September 2, 2003, he had seen a turquoise car driving down 48th Avenue and turning right on Vicksburg. There were at least four people in the car, and two young African-American “dudes” in the back seat were holding up guns. The one on the driver’s side in the back had a Mac-11. He had a short “fade” haircut and brown skin. The person behind the passenger’s seat had a handgun. The passenger door opened when the car returned, and Dickerson saw the person holding the Mac-11 looking “hifee, ” a term meaning excited or “hyper.” He ran when he saw the back door open. He heard gunshots.
At trial, Dickerson testified he could not recall how many people were in the car, did not recall seeing guns, did not know what the people in the car looked like, and was uncertain of their gender or race.
Ferguson interviewed Lashawnda Wills (the driver of the car struck by the turquoise car) on September 10, 2003. Lashawnda had told him that the person who pointed a gun at her did not have gold teeth, and had no facial hair. The driver had dreadlocks and gold teeth. She told him the people who jumped out of the car had guns, and that she saw her cousin trying to restrain someone who was wearing a white T-shirt and blue jeans.
Lashawnda was again interviewed five days later. She was shown a photographic lineup that contained a photo of Rubio. She was not able to identify anyone, but said one of the people she had seen had “bumps” like those in the picture of Rubio. At trial, she testified that she did not recall having made this observation.
Rubio was treated for severe acne in jail.
Ferguson interviewed Lawanda Wills on September 12, 2003. On a diagram, she marked where she lived, where she was standing when she saw Anderson being shot, and where the people who shot Anderson had come from before.
In a taped statement, Lawanda said that she had seen her cousin, Dickerson, near the corner of 48th and Vicksburg. She saw one man walking toward Anderson, carrying a gun, and telling Dickerson to get Anderson away from his car. The man had shoulder-length dreadlocks. Dickerson tried to break up the confrontation, and a second person with dreadlocks “came out a nowhere” with a gun and started shooting Anderson. Anderson fell to the ground. Lawanda ran to get a neighbor who knew CPR. When she returned a minute later, the two men were gone. She had seen the men on occasion in the past.
Ferguson showed Lawanda photographic lineups and asked if she could identify any of the people she had been talking about. She pointed to Delvond Brown in one lineup as the person Dickerson had tried to stop and Richardson in another as having shot Anderson.
Lawanda had earlier told the officers who interviewed her that she was not present when Anderson was killed; she told them she had lied because she was afraid of being killed herself. She testified repeatedly at trial that she remembered virtually nothing about the day Anderson was killed.
Jessie Johnson was interviewed on October 24, 2003. He said he was afraid to talk to the police. He told Sergeant Ferguson that on the day in question he saw a turquoise car driving in a zigzag manner. There were four young African-American men in the car, and one of them looked like “Snell, ” whom he identified in a photographic lineup as Delvond Brown. He heard an argument when the car was at the bottom of the hill, and he knew Anderson and Dickerson were there. He heard gunshots that sounded as if they came from two different guns.
Although Delvond Brown’s nickname was “Snail, ” his nickname is spelled in this portion of the record as “Snell.” At trial, Johnson denied having told Sergeants Ferguson and Galindo that “Snail” was seated in the car. He said he identified the photograph of Delvond because he knew him as Snail, not because he had seen him in the car.
Sergeant Luis Cruz interviewed Nikita Ragan (who at the time gave her name as Sharonica Belton) on November 5, 2003. In a taped statement, she said she had known “Kev” for three or four months, that he used to drive a white station wagon, that he had sold it after Anderson was shot, and that she had seen his friend Robert, or “Cock-eyed Rob” drive it. She had seen Row, Snail, and “Emo” switching a gun among themselves, may have seen Rob doing so, and had seen Row with a gun and had seen him hand a gun to somebody. Rob had had a gun with a clip, which he was selling to someone “before summertime.” Row used to have a turquoise car, but got rid of it; she believed he did so after Anderson was shot.
Ragan testified at trial that she did not recall making these statements, and said she did not recall defendants passing guns around to one another, did not recall seeing Delvond Brown, Rowmond Brown, or Richardson with guns, did not recall Rubio trying to sell a gun with a clip in it, and did not recall Rowmond owning a turquoise-colored car or selling it.
F. The Verdicts and Sentencing
The jury found all four defendants guilty of first degree murder. (§ 187, subd. (a).) As to all defendants, the jury found that a principal in the murder had been armed with a firearm. (§ 12022, subd. (a)(1).) As to Delvond Brown and Rubio, the jury found they did not personally discharge a firearm, causing Anderson’s death (§ 12022.53, subd. (d)) and that they did not personally and intentionally discharge a firearm (§ 12022.53, subd. (c), but found each had personally used a firearm (§§ 12022.5, subd. (a)(1) & 12022.53, subd. (b)). As to Richardson, the jury found he personally and intentionally discharged a firearm, causing Anderson’s death (§§ 12022.53, subd. (d) & 12022.53, subd. (c)) and that he personally used a firearm (§§ 12022.5, subd. (a) & 12022.53, subd. (b)). The jury also found Rubio guilty of possession of a firearm by a felon. (§ 12021, subd. (a)(1).)
The trial court sentenced Rowmond Brown to a prison term of 25 years to life for murder (§ 187, subd. (a)), with a consecutive one-year term for a firearm enhancement (§ 12022, subd. (a)(1)). Delvond Brown was sentenced to 25 years to life for murder (§ 187, subd. (a)), with a consecutive 10-year term for a firearm enhancement (§ 12022.53, subd. (b)). Richardson was sentenced to 25 years to life for murder (§ 187, subd. (a)), with a consecutive 25-year term for a firearm enhancement (§ 12022.53, subd. (d)). Rubio was sentenced to 25 years to life for murder (§ 187, subd. (a)), with a consecutive 10-year term for a firearm enhancement (§ 12022.53, subd. (b)), and a consecutive eight-month term for possession of a firearm by a felon (§ 12021, subd. (a)(1)).
II. DISCUSSION
A. Prosecutor’s Use of Peremptory Challenges
Defendants, who are African-American, contend the prosecutor violated their constitutional rights by using peremptory challenges to exclude African-American jurors.
1. Facts
Defense counsel raised no objection to the prosecutor’s first excusal of an African-American juror, C.D. The prosecutor excused three other African-American jurors, K.H., F.P, and A.C., and on each occasion, a motion was made under Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
Delvond Brown initially made the motions. Rowmond Brown joined all three motions. Richardson joined the motions as to K.H. and A.C., and Rubio joined them as to F.P. and A.C.
At the hearing on the Batson/Wheeler motions, Delvond Brown’s counsel argued that the prosecutor had systematically excluded African-American jurors. K.H., he argued, was well-qualified and intelligent; F.P. was able to view the evidence in a balanced manner, and A.C. had worked within the system and had expressed her willingness to be fair and impartial. Rowmond Brown argued that the prosecutor had shown a pattern of discrimination against educated Black jurors.
The trial court found there was a reasonable inference that the prosecutor had exercised peremptory challenges based on race, sufficient to shift the burden to the prosecutor to justify his exercise of the challenges in a race-neutral fashion.
As to C.D., the prosecutor noted that she was 25 minutes late to court one morning, that she had her eyes closed or almost closed during most of the time the jurors were being questioned, that she did not consider her occupation as an airport security officer to be law enforcement, that her two sons had been arrested and prosecuted for criminal charges, that she had visited relatives in prison, and that she had at some point been a member of the NAACP, which the prosecutor characterized as an organization that was “sympathetic to people who are charged with criminal offenses and have been coming through the criminal justice system, a system that they are actively trying to reform.”
K.H., the prosecutor pointed out, had lived for the past 30 years in Berkeley, which he said many people consider “probably the most liberal city in the United States.” K.H. was politically active in Berkeley, was a member of the Berkeley School Board, and had been a legislative aide for the City of Berkeley. She was also City Clerk and Assistant to the City Manager of the City of Emeryville. In response to a question about whether she had political aspirations, she had replied something to the effect of, “Never say never.” The prosecutor did not believe someone who was involved in Berkeley politics and who might have further political aspirations was likely to be a “very good prosecution oriented juror.” He was also concerned about K.H.’s membership in a number of organizations, including the National Women’s Political Caucus; United In Action, which K.H. had characterized as an umbrella organization of “organizations that [] either represent communities of color or other groups that are interested in improving [education], ” and the NAACP, which the prosecutor characterized as “actively tr[ying] to promote change and reform in the criminal justice system on behalf of its members and on behalf of people who are [] African-American.”
As to F.P., the prosecutor expressed two concerns. First, his brother was currently awaiting trial in a murder case. Second, he had founded a program dedicated to “getting kids off the street, ” and when some of the youths had been arrested, he had visited them in jail to support them.
A.C., the prosecutor noted, had worked in the past for the State Public Defender, and had answered telephone calls from defendants. She had worked for the Department of Fair Education and Housing, for the Department of Health Services, and as an adolescent group home counselor. The prosecutor acknowledged that this work was admirable, but said that in his experience, people who did that sort of work tended to feel sympathy for people charged with crimes. Moreover, A.C. had been arrested for purse snatching and placed on probation as a juvenile, and had on another occasion—which she did not mention in the jury questionnaire—been arrested by the Oakland Police Department and jailed. He did not believe she would be favorable to the prosecution.
The prosecutor also noted that at the completion of jury selection, three of the 12 seated jurors were African-American.
In response, defense counsel pointed out that a white juror, juror number 13, who had been engaged in outreach work had not been excused, and that another juror who had been born in Berkeley had been seated on the jury without questions about her residency. The prosecutor responded that he had concerns about whether juror number 13 would be a favorable prosecution juror, but that she was an alternate. Furthermore, at the time juror number 13 was seated there were only 18 potential jurors remaining on the panel, and defendants had 13 challenges remaining; the prosecutor was concerned that defense counsel might excuse any remaining jurors who were more favorably disposed toward the prosecution. As to A.C., he noted that race was likely to be a factor in the case, and A.C.’s work for Fair Employment and Housing included limited investigations into whether discrimination had occurred, leading him to think she would be more sympathetic to the defense than to the prosecution. As for the seated juror who had been born in Berkeley, her juror questionnaire indicated she had lived in Hayward for 30 years, distinguishing her from K.H., who was not only a resident of Berkeley but was politically active there.
The trial court denied the Batson/Wheeler motions. It noted that the prosecutor was obliged only to offer a genuine, reasonably specific, race- or group-neutral explanation of a suspect excusal, and that jurors may be excused based on trivial reasons or hunches, or even arbitrarily, so long as the decisions are not based on impermissible group bias. (See People v. Ervin (2000) 22 Cal.4th 48, 74-75 (Ervin); People v. Gutierrez (2002) 28 Cal.4th 1083, 1122.)
Although C.D. was not the subject of a Batson/Wheeler motion, the trial court discussed her exclusion as part of the totality of the circumstances. The court noted that she was nearly half an hour late on the first morning, and offered no excuse. It also appeared to the court that she was dozing off throughout the jury selection process. Moreover, her two sons had been arrested and prosecuted for drug offenses in Alameda County, then went to state prison. She had also visited relatives in prison, including a former brother-in-law who had been jailed for robbery.
Discussing the exclusion of K.H., the trial court noted that even if it were based only on her Berkeley residence, that would be a race-neutral reason. However, in addition K.H. was “intensely involved” in both Berkeley and Emeryville politics, which the court considered a race-neutral reason for exclusion. Moreover, she was a member of organizations whose positions generally supported those charged with crimes, also a race-neutral reason in the court’s estimation.
As to F.P., the trial court noted that his brother was awaiting trial for murder, and concluded that this factor alone would justify excluding him. The court also agreed that while F.P.’s work coaching children and supporting those who went to jail was commendable, it might cause him to have sympathy and empathy with defendants.
As to A.C., the court noted that she had worked for the State Public Defender, which was dedicated to defending those charged with crimes, and with other agencies that worked with defendants, which the prosecutor could fear would lead her to have sympathy with defendants; this alone, in the court’s view, would justify excluding her. Moreover, she had not only been arrested as a juvenile for purse snatching, but had also been arrested on another occasion—one she omitted from the jury questionnaire—by the Oakland Police Department, which had investigated the murder of Anderson and arrested defendants. The court found these reasons race neutral.
The trial court also noted that the prosecutor had conducted similar voir dire for all jurors, that the jury as seated included three African-Americans, and that the prosecutor had three times “passed” his peremptory challenge when the jury contained three African-Americans. The court also found the jurors to whom defense counsel had compared the excused jurors were not similarly situated. The court concluded that the prosecutor was truthful about the reasons for exercising his peremptory challenges, and denied the Batson/Wheeler motions.
2. Discussion
“The three-step inquiry governing Wheeler/Batson claims is well established. ‘First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. [Citation.]’ [Citations.]” (People v. Lomax (2010) 49 Cal.4th 530, 569 (Lomax).)
Here, the trial court found defendant had made a prima facie showing that the prosecutor’s peremptory challenges were based on race, and the People did not dispute this finding. Accordingly, we examine whether the African-American panelists were excused based on intentional discrimination. (Id. at p. 570.) “ ‘At the third stage of the Wheeler/Batson inquiry, “the issue comes down to whether the trial court finds the prosecutor’s race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.” [Citation.] In assessing credibility, the court draws upon its contemporaneous observations of the voir dire. It may also rely on the court’s own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office that employs him or her. [Citation.]’ [Citation.]” (Id. at pp. 570-571.)
On appeal, we review the trial court’s determination of this issue with great restraint, presuming that the prosecutor uses peremptory challenges in a constitutional manner and giving “ ‘great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]’ ” (Id. at p. 571.) If the trial court has made such an evaluation, its decision will be upheld on appeal if supported by substantial evidence. (Ibid.) “But deference is not abdication: ‘ “When the prosecutor’s stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings. But when the prosecutor’s stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient.” ’ [Citations.]” (People v. Gonzales (2008) 165 Cal.App.4th 620, 628 (Gonzales).) There can be no doubt that the trial court here made a sincere and reasoned effort to evaluate the prosecutor’s proffered reasons for exercising his peremptory challenges.
The record supports the trial court’s decision. K.H.’s background, including her status as an elected member of Berkeley’s school board, could reasonably lead the prosecutor to believe her views might not be favorable to the prosecution. Defendants do not contend that residence in Berkeley, and involvement in the politics of that city, are a proxy for race, and nothing we are aware of would support such an assumption. (Compare United States v. Bishop (9th Cir. 1992) 959 F.2d 820, 822, 825-826, overruled on another ground in United States v. Nevils (9th Cir. 2010) 598 F.3d 1158, 1167 [improper to base challenge on juror’s residence in city heavily populated by low-income African-Americans rather than on juror’s own attitudes].) The trial court could properly conclude the prosecutor’s proffered race-neutral reasons for excusing K.H. were genuine.
We recognize that one of the reasons the prosecutor gave for excusing K.H. was her membership in the NAACP, among other organizations, a reason he had also given for excusing C.D., who had been a member of the NAACP for a short period in the 1970s. The expressed basis for his concern, however—his belief that the NAACP actively tried to promote reform in the criminal justice system and that its members might not be favorably disposed toward the prosecution in a criminal case—was not inherently connected to the race of the prospective juror, and was not implausible. (See Gonzales, supra, 165 Cal.App.4th at p. 628.) Furthermore, the other reasons he proffered—that she was politically active in a liberal city, that she was a public official, and that she had not ruled out further political aspirations—were race neutral and plausible.
The prosecutor’s challenge of C.D. was not the subject of a Batson/Wheeler motion, although the trial court considered it as part of the totality of the circumstances. Her lateness, inattentiveness in court, and the criminal record of at least three members of her family provided ample race-neutral justification for excusing her.
The record does not disclose whether the prosecutor’s understanding of the activities of the NAACP was correct.
The fact that the prosecutor did not challenge two other African-American jurors who were members of the NAACP does not change our view. One of the two had worked in security management after retiring from the Navy, and was a member of a neighborhood watch group. Although he had a son who had been briefly jailed 15 or 16 years previously, the prosecutor could reasonably have concluded from his background in the military, his work in security, and his involvement in neighborhood watch, that he was likely to be a favorable juror. (See People v. Gray (2005) 37 Cal.4th 168, 190-191 [side-by-side comparison of excused jurors with those not excused shows clear reasons prosecutor might have preferred not to strike other jurors].) The other juror who was a member of the NAACP was a nurse who had worked with trauma victims, and had seen a lot of violence in her career. Asked her opinion of the criminal justice system, she stated that it was a “hard task, ” noted Oakland’s high murder rate, and said that she thought the system treated people fairly. The prosecutor could reasonably have concluded that her background as a whole did not suggest she would favor defendants. Thus, a comparison of these jurors with K.H. and C.D. shows they are not similarly situated. (See People v. Lenix (2008) 44 Cal.4th 602, 630-631 (Lenix).)
The trial court could similarly accept the prosecutor’s expressed reasons for excusing F.P., whose brother was awaiting trial in a murder case. “The arrest of a juror or a close relative is an accepted race-neutral reason for exclusion.” (Lomax, supra, 49 Cal.4th at p. 573.) Nor was it unreasonable for the trial court to accept at face value the prosecutor’s expression of concern that F.P.’s work with young people who had been jailed might lead him to sympathize with defendants in a criminal case. These reasons, too, were race neutral.
Defendants contend the prosecutor’s concern with the fact that F.P.’s brother was awaiting for trial for murder was a sham, pointing out that the prosecutor did not challenge a white juror who had checked the “yes” box to the question, “Have you or a close friend or relative ever been accused of, arrested for or prosecuted for a crime?” The questionnaire contained no elaboration of this answer, and the prosecutor did not ask the juror any questions about it. Assuming this omission was deliberate and not an oversight, this juror had worked as a police technician for years. As part of her responsibilities, she had worked in booking and as a dispatcher. This background as a whole might reasonably be seen to suggest the juror would be favorably disposed toward the prosecution. A comparison of this juror with F.P. shows they are not similarly situated, and there is no basis to conclude that the prosecutor’s stated reasons for excusing F.P. were a sham.
A.C., as the prosecutor pointed out, had not only been placed on probation as a juvenile for purse snatching, but had neglected to mention on her jury questionnaire that on another occasion she had also been arrested by the Oakland Police Department and jailed. Her own experience with being arrested and incarcerated, including an arrest by the same police department that investigated the crimes in question here, was a race-neutral reason for exclusion that the court could reasonably accept. Likewise, the court could accept the prosecutor’s explanation that he was concerned that A.C.’s work for the State Public Defender might indicate she would not be favorable to the prosecution.
This case is distinguishable from Gonzales, on which defendants rely. The prosecutor there explained that he challenged a juror because he was young, he had no significant ties in the form of a spouse or children, and that he was Spanish-speaking, causing the prosecutor concern that he would listen to witnesses testifying in Spanish rather than relying on the English translation. (Gonzales, supra, 165 Cal.App.4th at pp. 624-625.) The Court of Appeal noted that the prospective jurors who understood Spanish had not been individually questioned, and that as a group had indicated they would accept the interpreter’s translation, and concluded the concern about language was not race neutral. (Id. at p. 630.) Moreover, the record did not support the prosecutor’s expressed concern that the juror was immature. (Id. at pp. 631-632.) Here, on the other hand, the prosecutor’s stated reasons were both plausible and supported by the record.
Moreover, the jury as seated included three African-Americans. “ ‘ “[W]hile the fact that the jury included members of a group allegedly discriminated against is not conclusive, it is an indication of good faith in exercising peremptories, and an appropriate factor for the trial judge to consider in ruling on a Wheeler objection.” ’ ” (People v. Guerra (2006) 37 Cal.4th 1067, 1108, disapproved on another point in People v. Rundle (2008) 43 Cal.4th 76, 151; see also Lenix, supra, 44 Cal.4th at p. 629 [prosecutor’s acceptance of panel containing Black juror strongly suggested race was not motive in challenge of another juror].)
Thus, we conclude the record contains substantial evidence to support the trial court’s conclusion that defendants did not prove purposeful discrimination. (See Lomax, supra, 49 Cal.4th at p. 571.)
B. Issues Related to Redaction of Delvond and Rowmond Brown’s Statements
1. The Redactions
As we have discussed, the jury heard both recorded and unrecorded statements made by Delvond and Rowmond Brown. The statements were redacted before being presented to the jury. Delvond and Rowmond Brown contend they were prejudiced by the redactions. Richardson and Rubio contend that, even after being redacted, the statements implicated them and deprived them of their rights to due process, a fair trial, and to confront the witnesses against them.
The jury was instructed that these statements should be considered only as to the defendant making the statement.
a. Rowmond Brown’s Statements
Rowmond Brown’s taped statement made shortly after midnight on November 6, 2003, was redacted to remove a number of references to other people in the turquoise car on the day Anderson was shot. After Rowmond told Sergeants Ferguson and Galindo he had picked up the car from a detail shop—which the jury heard—he said some other people had gotten into the car, that his brother was one of those people, and that he did not want to identify them. These statements were deleted. On a number of occasions, Ferguson asked Rowmond what “you guys” had done. Those questions were redacted to refer to simply “you.” The question, “Okay, and you were driving and there was somebody in the passenger seat? And three people in the back seat?” was redacted to end after “Okay, and you were driving.” After Rowmond said he had stopped then made a U-turn near the corner of 48th and Vicksburg, Ferguson asked whether anyone had gotten out of the car, and Rowmond said his brother had, that he was not aware his brother had a gun, and that his brother often bought marijuana there. The statements about what had happened after the U-turn were omitted. Ferguson asked: “Was there any arguments going on or any fights or anything like that?” Rowmond responded, “No, ‘cause when he got out, I mean, I don’t know, ‘cause when he got out, I, I, just we pulled off. If there were any arguing, I, I, didn’t hear anything.” This response was redacted to read simply, “If there were any arguing, I, I, didn’t hear anything.” A statement that Rowmond intended to return to pick his brother up was redacted to omit the reference to picking Delvond up.
Most of Rowmond’s statements about what happened when Anderson was shot were not presented to the jury. An exchange in which Rowmond said that at some point the others got out of his car, while he stayed in the car, was omitted. In a portion of the recording presented to the jury, Rowmond said he had heard shots, that he was unaware of what was going on, and that he heard “[m]ore than enough” gunshots. In a portion of the interview the jury did not hear, he said he waited for his friends to get back into the car before driving off, that he did not see if any of them had guns, that it would have surprised him if his friends had had guns, and that as far as he knew, they did not have “problems with anybody out there.” Statements that both Antee and Delvond had told Rowmond that Delvond did not shoot; that Rowmond had been upset by the shooting; that Rowmond had asked the others “what happened and they said somebody got shot and I left it at that”; that the others wouldn’t tell him anything because he had a history of testifying; that he had not seen his brother or friends with guns; that he and the others went to buy marijuana and then he dropped them off, that no one talked about what happened as they were driving; that he had met up with the others by chance as he was picking up his car; and that he thought the others were getting out of his car at 48th and Vicksburg to buy some marijuana were also deleted.
Rowmond said he had testified in a murder trial against one Deron Kincaid.
Rowmond’s taped statement made at approximately 9:00 a.m. on November 6, 2003, was also redacted. References to meeting with Delvond, Rob, and Emo (Richardson’s nickname) by chance at the detail shop and driving them in his car, going to 48th Avenue and discussing getting some marijuana, and dropping them off after Anderson was killed were eliminated. A question asking where “you guys” went later that evening was changed to “And where do you go then?” Rowmond’s statements that he talked to Delvond about what happened on 90th Avenue, that Delvond explained something about shots from the car, and that Delvond had told him he “wasn’t shooting, [he] was rolling up weed” were omitted. An exchange in which Rowmond was asked if the others had talked about what had happened—presumably in reference to the earlier killing of Thompson—when they got into Rowmond’s car at the detail shop was also omitted. Rowmond also told the officers that Delvond had discussed the shooting at 90th Avenue with him, and that Delvond had said he had been rolling up weed when it happened, and that he had been startled by the shots; these statements were also omitted.
Rowmond’s taped statement, made at approximately 11:30 a.m. the same morning, in which he acknowledged being present when Thompson was killed, was also redacted. The jury heard him say that “Kev” was driving the Nissan wagon, and that Rowmond was in the rear of the wagon, but his statements that “Emo” was in the right front seat, that Rowmond’s brother was in the right rear passenger seat, and that “little Rob” must have been in the seat behind the driver were omitted. On a number of occasions, Rowmond was asked about what “you guys” did, and the references to “guys” were not deleted.
The jury heard this redacted version of Rowmond’s discussion of what happened when the wagon stopped at a light: “Q. Ok. Alright. So you stopped there and what happens next? [¶] A. We stopped there, shit, I got my head down rolling up some weed, and all I hear is, ‘Shit, there you go right there, bam, bam, bam, bam, bam.’ And then I flinched like (unintelligible). [¶] Q. Who says there you go right there? [¶] A. I don’t know, and the music was still up. [¶] Q. Yeah. Do you think it was, let’s go by the people in the car? Was it Kevin? [¶] A. It could have been him. [¶] Q. Ok. [¶] A. But it probably, it probably could have been Kevin, I don’t know. [¶] Q. Now, when you hear the gunshots, ok, obviously, you know, I understand that you, you’re looking up at that time and you’re seeing things for the first time, but obviously when there’s people with guns within a car, a small car, you’re gonna be able to tell, I mean that’s just real. You’re gonna be able to tell who’s got a gun and who doesn’t have a gun. Did you have a gun? [¶] A. No, hell no, I’m way in the back. [¶] Q. Ok, did Kevin have a gun? [¶] A. I’m not for sure. Shit happens so damn fast. [¶] Q. Right. [¶] A. Shots went off like bam-bam-bam. [¶] Q. Right. Well, who’s shooting? [¶] A. It could have been Kevin.” References in this discussion to Delvond being in the car and rolling up weed, and to the possibility that Emo was shooting were omitted from the version the jury heard. Sergeant Cruz, who was questioning Rowmond, urged him to be accurate, and pointed out, “When you have that many people in that tight of a space inside a car, it’s gonna be just about impossible for somebody not to see who had a gun.” After Rowmond said he thought Kevin was shooting a gun and was asked how Kevin was holding his hand, he said “So Kev has to shoot with his left too.” The word “too” was redacted out of the version of this exchange the jury heard, as were Rowmond’s statements that Delvond did not have a gun, or, if he did, he was not brandishing it, that Rob was in the car but was not shooting, and that Emo had a gun (a “nine”) and “had to shoot right by Kev face” because he was on the passenger side, and would have had to hold the gun in his left hand.
When asked if he had any doubt Kevin was shooting, Rowmond replied, in an answer heard by the jury, “I’m pretty sure he was. It was two different shots, ” and he said the shots came from the car he was in. Cruz asked what “you guys” did next, and Rowmond said they went to the detail shop, and went to “four eight” to buy marijuana. Rowmond was asked, in an exchange heard by the jury, “At any time around the shooting [of Thompson], did you ever, well, do you remember whose windows may have been down and whose windows may have been up at the time of the shooting?” Rowmond replied that the driver’s window was open. He was asked if any of the other windows were down, and replied, “Um, not that I recall. It was a hot day that day so I think all the windows was down.” He also said he did not have a gun.
In a portion of the interview not heard by the jury, Cruz mentioned that Rowmond had told Sergeants Ferguson and Galindo that he didn’t know that the people who got into his car had guns, and Rowmond replied that he thought Kev and Emo had left the guns in the white car.
b. Delvond Brown’s Statements
Various statements were omitted from Delvond Brown’s interview with Sergeants Ferguson and Galindo in the early morning hours of November 6, 2003. These include his statements that he was the first one to get out of the car, that when he got back in the car after Anderson was shot he did not see a gun, that he was telling Row to drop him off, that he “didn’t want to be associated with those guys in my brother’s car, ” that he was the first to get out of the car after the shooting, that when he heard gunshots, he figured they had done something stupid, that what “they” did to Anderson was wrong, and that neither E-Moe nor Rob had ever said they were sorry, as well as various other references to his codefendants by name.
Ferguson testified that Delvond told him that “what was done to Thomas” was wrong.
In the taped statement Delvond Brown made at almost 5:00 a.m. on the same morning, summarized in section I above, he discussed the killing of Anderson. Ferguson asked him whether he had been in the turquoise car when “you guys” went to 48th and Vicksburg. This question was redacted to omit the word “guys.” An exchange in which Delvond said that before the group went to the detail shop, they had been together, that they had been in a car but that “none of us was driving, ” that they then rode around town, and that they ended up at 48th and Vicksburg, was omitted, as was Delvond’s reference to wanting to fight Anderson because Anderson had put out word about wanting to kill Delvond’s brother over “the little Deron thing, ” presumably a reference to Rowmond’s testimony against Deron Kincaid. A question about whether “any of the other guys” got out of the car with him was redacted to ask only, “Were you by yourself?”
In an omitted portion of the interview, Delvond said that the turquoise car made a U-turn and came back to where he and Antee were talking, that somebody must have gotten out, but that Delvond did not see who because his back was turned, and that he then heard gunshots. The jury heard Delvond say he took cover and turned around after all the shots were fired, but did not hear him say he could not recall who was in the front or back seat, that he did not see any of the people inside the car with a gun “at the time, ” or that he did not see a gun in the back seat. In omitted portions, Delvond said he got into the back seat, that as they drove the others “wasn’t acting really nothing, ” that he asked the others what was going on, and that he kept yelling to be dropped off; when asked why he said, “Because. Hell-a shit just happened. A lot of stuff, excuse me for cussing, but alot of stuff had just happened you feel me and man.” (Sic.) Asked in the omitted portion, “You just wanted to get out of there?” he said, “I had to get up out of that car. I had to get up out of there.” An exchange in which he was asked how “you guys” were driving, and he said they were zigzagging, and said no one was waving guns was omitted. The jury heard Delvond agree that when he got out and “started to get at [Anderson], Antee kind of stopped it, ” and that he spoke aggressively to Anderson and wanted a “regular fight” with him, but did not hear him tell the officers that after the car made a U-turn, people from the car got out and he soon heard gunshots, and that his back was turned and he did not see the people.
Several statements Delvond made in the unrecorded interview at 6:00 a.m. the same morning, discussing the killing of Thompson, were redacted, including his statements that “little Rob” was sitting in the left rear seat, that “Emo” was in the front seat, that Delvond’s brother was in the “back, back, ” that Kevin was not shooting, that Emo had a.380 and was shooting, and that little Rob had a nine-millimeter gun that shot.380 caliber bullets, and that he didn’t think “they” were going to kill someone.
In the taped statement Delvond made at approximately 10:15 a.m. the same morning discussing the killing of Thompson, references to other people in the car were omitted, including an exchange in which Delvond agreed that at some point “you guys” had met up with “a car that some people in your car thought was a problem so they shot it up.” The jury heard Delvond explain that he did not recognize the burgundy car or its driver, that he was in the back seat, and that “by the time they get up there I see guns... ” It did not hear him explain that “folks” started shooting the occupants of the burgundy car within seconds of stopping alongside them, and that the people in the car Delvond was in “took matters in they own hands basically” and started shooting. The jury heard Delvond say Kevin, the driver, did not do any shooting, and later heard him say “he” was shooting out the left window. It also heard him explain that he could not recall “what all they was sayin’ ” as they drove after the shooting, and discuss “what problems the people in [his] car had with the people in that burgundy car.” The jury did not hear an exchange in which Delvond was asked whether he had found out what happened to the guns after the shooting, and he said he thought “they” had probably thrown them away, or an exchange in which he said there were only two guns in the car.
2. The Law on Redactions and Joint Trials
As we have noted, defendants were charged jointly with the murder of Anderson. “Under section 1098, ‘[w]hen two or more defendants are jointly charged... they must be tried jointly, unless the court order[s] separate trials.’ In light of this legislative preference for joinder, separate trials are usually ordered only ‘ “in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.” ’ [Citations.] A trial court’s ruling on a severance motion is reviewed for abuse of discretion on the basis of the facts known to the court at the time of the ruling. [Citations.]” (People v. Box (2000) 23 Cal.4th 1153, 1195, overruled on another ground in People v. Martinez (2010) 47 Cal.4th 911, 948 & fn. 10; see also People v. Gamache (2010) 48 Cal.4th 347.) “Joint trials are favored because they ‘promote [economy and] efficiency’ and ‘ “serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.” ’ [Citation.] When defendants are charged with having committed ‘common crimes involving common events and victims, ’ as here, the court is presented with a ‘ “classic case” ’ for a joint trial. [Citation.]” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40.)
As explained in People v. Archer (2000) 82 Cal.App.4th 1380, 1386 (Archer): “In Bruton v. United States [(1968) 391 U.S. 123 (Bruton)], the Supreme Court held that a defendant’s Sixth Amendment right of cross-examination is violated by the admission of a nontestifying codefendant’s confession implicating the defendant. Although a jury may be instructed to disregard the confession in determining the nondeclarant defendant’s guilt or innocence, the court recognized that ‘there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. [Citations.] Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial.... [¶] In Richardson v. Marsh (1987) 481 U.S. 200 [(Richardson)], the United States Supreme Court limited Bruton, holding that the confrontation clause is not violated by the admission of a codefendant’s confession that has been redacted ‘to eliminate not only the defendant’s name, but any reference to his or her existence, ’ even if the confession incriminates defendant when considered in conjunction with other evidence. [Citation.] While Bruton required that the admission be ‘powerfully’ incriminating, Richardson required that it also be ‘incriminating on its face....’ [Citation.]”
In People v. Fletcher (1996) 13 Cal.4th 451, 456 (Fletcher), the California Supreme Court considered the efficacy of redacting a nontestifying codefendant’s statements in a manner that retains references to a coparticipant in the crime, for instance by the substitution of pronouns for the name of a codefendant, but removes references to the coparticipant’s name. The court held that the sufficiency of this type of editing must be determined on a case-by-case basis in light of the statement as a whole and the other evidence presented at trial. (Id. at p. 468.) The court concluded that in cases in which “any reasonable juror must inevitably perceive that the defendant on trial is the person designated by pronoun or neutral term in the codefendant’s confession, an assumption that a limiting instruction could ‘be successful in dissuading the jury from entering onto the path of inference’ [citation] would be little short of absurd. On the other hand, there are instances in which replacing a nondeclarant defendant’s name with a symbol or neutral pronoun will be effective in protecting the nondeclarant’s rights under the confrontation clause, ” as when the codefendant was just one of a large group of people who might have been the person mentioned in the confession. (Id. at p. 466.) Thus, such redaction “will adequately safeguard the nondeclarant’s confrontation rights unless the average juror, viewing the confession in light of the other evidence introduced at trial, could not avoid drawing the inference that the nondeclarant is the person so designated in the confession and the confession is ‘powerfully incriminating’ on the issue of the nondeclarant’s guilt.” (Id. at p. 467.)
Severance may be necessary, however, “when a defendant’s confession cannot be redacted to protect a codefendant’s rights without prejudicing the defendant. [Citation.] A defendant is prejudiced in this context when the editing of his statement distorts his role or makes an exculpatory statement inculpatory. [Citation.]” (People v. Lewis (2008) 43 Cal.4th 415, 457 (Lewis); see also People v. Aranda (1965) 63 Cal.2d 518, 530 (Aranda); People v. Stallworth (2008) 164 Cal.App.4th 1079, 1091 (Stallworth).) In Stallworth, for example, redactions that altered a defendant’s account of events to make it internally inconsistent and to conceal the existence of one of the shooters were found to prejudice the defendant. (Id. at pp. 1096-1098.) The court noted that, as redacted, the statement not only placed the defendant in the vehicle from which the shots were fired, but also presented an altered account of events that, in conjunction with other evidence before the jury, suggested that the defendant was not telling the truth, and went on to state: “For a redacted statement to make it appear that the declarant is evasive or lying in a way that the original statement did not seems to us to be the very definition of prejudice....” (Id. at p. 1097.) Therefore, either the statement should have been excluded in its entirety or the unredacted statement should have been admitted, although its admission might have necessitated severance of the trials of the codefendants. (Id. at p. 1098.)
3. Delvond and Rowmond Brown’s Objections to Redaction
Delvond Brown objected to the redactions and unsuccessfully sought to sever his trial from that of his codefendants, contending he was entitled to admission of his entire, unredacted statements if any part of the statements were admitted against him, and Rowmond likewise opposed the redactions. Delvond and Rowmond contend the trial court erred in ordering them tried jointly with Richardson and Rubio and admitting only the redacted portions of their statements.
Delvond likens this case to Stallworth, in which the Court of Appeal concluded the redactions to one codefendant’s statements distorted their meaning to the defendant’s prejudice. (Stallworth, supra, 164 Cal.App.4th at pp. 1096-1098.) As to his statements about the killing of Anderson, Delvond contends that he was prejudiced by the omission of various matters, including his statements about his motive for wanting to fight Anderson; that he figured the others in the turquoise car had done something stupid; that he told Rowmond to drop him off because he did not want to be associated with those guys; that what “they” had done was wrong; and that neither Richardson nor Rubio had said he was sorry. According to Delvond, these redactions suggested that he had a gun, because two guns were involved in the crime and only Delvond and the driver of the car were directly mentioned. He also argues that the redactions made the incident seem like a motiveless and irrational attack, and omitted his expression of outrage at what Richardson and Rubio had done.
In our view, the redactions do not distort Delvond’s statements in this manner. As redacted, the statements made clear Delvond’s position that he intended only to fight Anderson, that he did not have a gun with him when he got out of the car, that the gunshots started before he got close to Anderson, that Delvond heard gunshots and took cover, that the gunshots came from where Anderson was, that what was done to Anderson was wrong, and that Delvond thought the others were “crazy.” The redacted statements did not give the jury the impression Delvond either shot Anderson or intended his death.
Delvond also argues that the redactions to his statements about the killing of Thompson to eliminate his mention of “Emo” and “Little Rob” gave a false impression that the only people in the station wagon were himself and Kevin, and suggested both that he was one of the people who had problems with the people in the burgundy car and that he was one of the two gunmen. A fair reading of the redacted statements does not support this contention, and makes clear that Delvond and Kevin were not the only people in the station wagon. In a redacted recorded statement heard by the jury, Delvond said Kev had picked him up, that he got in the car, and that “[t]hey was comin’ to get me.” Delvond said that when they pulled up next to the car Thompson was in, he saw his friend on his side and asked him what was up. He said he “was like what the hell’s going on, ” because he was in the back seat, “high, ” and “by the time we get up there I see guns and shit.” Delvond was asked what “people” in the car said as they drove on, and he said that he “really can’t recall what all they was sayin’.”
This case is distinguishable from Stallworth. Stallworth and his codefendant, Davis, were accused of having opened fire on three cars. (Stallworth, supra, 164 Cal.App.4th at p. 1083, 1085, fn. 7.) In a statement, Stallworth explained that on the night of the shooting in question, he was lying down in the third row of a vehicle, and that three other people were in the car: Trotter, who was driving, Davis, who was in the front passenger seat, and Sheppard, in the back seat. According to Stallworth, Sheppard and Davis shot the victim, and two guns were involved. (Id. at pp. 1092-1095.) Evidence at trial showed that two guns were used in the shooting, and also showed that during the shootings, shots were fired from the front and rear passenger seats. (Id. at p. 1084-1085, 1094.) The statements were redacted to omit mention of Davis, and did not use a “placeholder” to indicate there was another person in Davis’s position in the vehicle. (Id. at pp. 1091, 1095-1096.) As redacted, the statement left the impression the only people in the car were Trotter, Sheppard, and Stallworth, and suggested that according to Stallworth, there was no one in the front passenger seat. This claim would be incompatible with other evidence that one of the shooters was seated in the front passenger seat. (Id. at p. 1096.) These redactions, concluded the Court of Appeal, left the impression that Stallworth was lying about where he was in the vehicle and that in fact he was probably the shooter in the front passenger seat. (Id. at pp. 1096-1097.) The redactions also made his statement internally inconsistent, by having Stallworth refer on occasion to one gun and elsewhere to two guns, suggesting he was lying. (Ibid.) Thus, not only was “the actual meaning of the statement [] fundamentally changed, ” but the prosecution received the benefit both of Stallworth placing himself in the vehicle from which shots were fired and of “an altered account of events that no longer dovetailed with other evidence before the jury (unless one concluded that Stallworth was a front seat shooter), suggesting that Stallworth was not telling the truth.” (Id. at p. 1097.) Thus, in making it appear Stallworth was evasive or lying in a way the original statement did not, the redactions were prejudicial within the meaning of Aranda, supra, 63 Cal.2d at p. 530.
Here, on the other hand, the redactions did not distort the meaning of Delvond’s statements or suggest he was not telling the truth. Indeed, Delvond’s statements that he left the car to fight Anderson and that “Antee” pulled him away dovetailed with other evidence presented at trial.
This case is similarly distinguishable from People v. Douglas (1991) 234 Cal.App.3d 273, 280 (Douglas), in which the trial court denied a severance motion. There, the defendant and his brother, Bobby, were jointly tried for stabbing one Lloyd Amey to death. (Id. at p. 275.) The defendant told an officer that Bobby had placed a telephone call to Amey and that Bobby used two knives in the attack on Amey. He denied stabbing Amey himself, admitting only to putting one or both knives in the sink afterward. (Id. at pp. 282-283.) These statements were redacted to state that the defendant had indicated “a phone call was placed to Mr. Amey, ” that the defendant said he had put a butcher knife used in the attack in the sink, that he did not say he did anything with the butcher knife before putting it into the sink, that he made reference to two knives, that he said both knives had been used on Amey, that the butcher knife caused the initial stab wound and had been used in Amey’s back, and that the second knife had been used on Amey’s face. (Id. at pp. 282-284.) Through this testimony, the jury learned that two knives had been used in the attack and that the defendant had denied having done anything with one of the knives before putting it in the sink, and the jury was not told the defendant had repeatedly denied using either knife or harming Amey in any way. (Id. at p. 284.) The Court of Appeal reversed the murder conviction, concluding the prejudice to the defendant was “obvious and serious.” (Id. at p. 287.) Unlike the defendant in Douglas, Delvond’s statements were not distorted to imply he had admitted participating in the shooting of either Thompson or Anderson.
We are not persuaded otherwise by Delvond’s reliance on Evidence Code section 356, which provides in pertinent part: “Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party....” As explained in Lewis: “This provision permits the introduction of statements that are necessary for the understanding of, or to give context to, statements already introduced. [Citations.] But limits on the scope of evidence permitted under Evidence Code section 356 may be proper when, as here, inquiring into the ‘whole on the same subject’ would violate a codefendant’s rights under Aranda or Bruton. [Citation.]” (Lewis, supra, 43 Cal.4th 413, 458.) In Lewis, the trial court did not prevent the defendant from cross-examining the witnesses to bring out his own hearsay statements that exculpated him or from presenting nonhearsay testimony or evidence that implicated his codefendants. (Id. at p. 458, citing Ervin, supra, 22 Cal.4th at p. 87.) Rather, our Supreme Court continued, “the trial court precluded defendant only from bringing out his own hearsay statements that expressly inculpated his codefendants. These limits were permissible notwithstanding Evidence Code section 356.” (Lewis, 43 Cal.4th at p. 458.) Here, the redactions did not distort Delvond’s denials that he had shot either Anderson or Thompson, and indeed made clear that he had consistently denied doing so. In the circumstances, there was no violation of Evidence Code section 356.
Delvond argues the trial court improperly relied on Ervin to reason that if he believed favorable evidence had been redacted out of his statements, he could remedy the problem by testifying. According to Delvond, this interpretation of Ervin would improperly force him to give up his Fifth Amendment privilege against self-incrimination in order to remedy the prejudice caused by the redactions. As Delvond points out, the court in Stallworth rejected an argument that a defendant may be required to abandon his privilege against self-incrimination in order to attempt to undo the prejudice caused by ineffective and misleading redactions to his extrajudicial statements. (Stallworth, supra, 164 Cal.App.4th at p. 1100.) We have already concluded that the redactions do not distort Delvond’s version of his own involvement in the events at issue and are not misleading.
Rowmond joins in Delvond’s argument, and points out additional redactions to his own statements that he contends prejudiced him by eroding his defense that he did not know the others in the car had guns or that there was going to be a shooting. These redactions, according to Rowmond, include the omission of his statements that there was someone in the front passenger seat and three people in the back seat of the car when Anderson was shot; that he did not plan to meet his friends at the detail shop; that he did not hear an argument with Anderson and Dickerson after his passengers got out of the car at 48th Avenue or that he stayed in the car; that the group talked about getting some marijuana at 48th Avenue; that he thought his friends were getting out of the car to get marijuana; that he did not know they had guns; that he thought the guns were left in the car after the Thompson shooting; and that the others would not tell him much about what happened because he had a history of testifying for the prosecution.
We have reviewed Rowmond’s statements, and we conclude the redactions do not distort them as he contends. The jury heard he “had serious problems” with talking about his friends, and that the officers had told him they “would respect... [his] wishes in that regard.” The prosecution’s theory was not that Rowmond was one of the gunmen, but that he was driving the car. The jury heard Rowmond say he just “heard shots” at the time of the Anderson shooting and that he was not aware what was going on. As to the Thompson shooting, the jury heard Rowmond say he was in the back of the wagon “rolling up some weed” when the shooting occurred, that he did not want the shooting to happen, and that he did not fire any shots. Furthermore, Sergeant Cruz, in asking Rowmond who was shooting, said first, “[L]et’s go by the people in the car? Was it Kevin?” When Rowmond said it probably could have been Kevin, Cruz continued, in the redacted version, “... obviously when there’s people with guns within a car, a small car, you’re gonna be able to tell, I mean that’s just real. You’re gonna be able to tell who’s got a gun and who doesn’t have a gun.” This exchange made clear that Rowmond and Kevin were not the only people in the car. While the jury did not hear all the exculpatory statements Rowmond made, the redactions to the statements did not distort their meaning.
4. Denial of Rubio and Richardson’s Motions to Sever
Rubio and Richardson asked to be tried separately from Delvond and Rowmond Brown, arguing that admission of the Brown brothers’ statements, even redacted, would violate their right to confrontation and would prejudice them. As they point out—and as we have discussed—while the redacted statements do not mention Rubio and Richardson by name, both Delvond’s and Rowmond’s statements indicate that someone other than the declarant and (in the case of the Thompson killing) Kevin was present during the shootings. The redacted statements do not, however, mention the number of other people in the vehicle at the time of either shooting.
The United States Supreme Court in Richardson, supra, 481 U.S. at p. 211, held that “the Confrontation Clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction when... the confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence.” The court left open, however, the question of “the admissibility of a confession in which the defendant’s name has been replaced with a symbol or neutral pronoun.” (Ibid., fn. 5.) As we have discussed, the California Supreme Court considered that question in Fletcher, and concluded that the efficacy of such editing must be evaluated on a case-by-case basis. (Fletcher, supra, 13 Cal.4th at p. 468.) Where any reasonable juror must perceive that the defendant on trial is the person referred to in the confession, a limiting instruction is ineffectual. Where, on the other hand, the codefendant is one of a large group of people who might have been mentioned in the confession, redaction may be sufficient to protect the nondeclarant’s rights under the confrontation clause. (Id. at p. 466-467.) Such redaction “will adequately safeguard the nondeclarant’s confrontation rights unless the average juror, viewing the confession in light of the other evidence introduced at trial, could not avoid drawing the inference that the nondeclarant is the person so designated in the confession and the confession is ‘powerfully incriminating’ on the issue of the nondeclarant’s guilt.” (Id. at p. 467.) Thus, “[w]hen, despite redaction, the statement obviously refers directly to the defendant, and involves inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial, the Bruton rule applies and introduction of the statement at a joint trial violates the defendant’s rights under the confrontation clause.” (People v. Burney (2009) 47 Cal.4th 203, 231.)
In Archer, supra, 82 Cal.App.4th at pp. 1388-1389, the Court of Appeal concluded that a statement of a codefendant had not been effectively redacted when it “unmistakably implicated” the appellant in several aspects: in particular, the codefendant told an investigator that he picked up the victim and suggested that they go to a certain address, where someone was waiting and stabbed him; the jury also heard evidence that the address in question was the appellant’s. The codefendant told the investigator he had used a car to move the body, and gave the car’s make and license plate number, which were identical to those of appellant’s car. (Id. at p. 1389.) Thus, not only was the existence of another participant in the crime obvious from the statement itself, but the appellant’s home address and license plate number were prominent in the description of the crimes. Accordingly, the statement, even as redacted, facially incriminated the appellant. (Id. at p. 1390.)
Similarly, our Supreme Court in Fletcher concluded that on its facts, admission of the statement of a nontestifying codefendant, Fletcher, violated the appellant’s (Moord’s) right to confrontation. Although the redacted statement did not mention Moord by name, it told the jury that Fletcher and another man were at the scene of the crime and were using a ruse to get people to stop in order to rob them. Because another witness’s testimony placed Moord in Fletcher’s company just after the shooting in question, “reasonable jurors could not avoid drawing the inference that Moord was the unnamed person mentioned in Fletcher’s statement.” (Fletcher, supra, 13 Cal.4th at p. 469.)
Similar facts do not exist here. Richardson and Rubio argue that a nexus between the Brown brothers and themselves was drawn by the evidence of the friendship among the four codefendants. Richardson and Rubio do not point to any evidence, however, that defendants associated exclusively with each other. Nor do the redacted statements provide any other identifying information about the other occupants of the car to suggest they included Rubio or Richardson. The evidence of their friendship was not specific enough for us to conclude that the statement as redacted referred directly to Rubio and Richardson and facially incriminated them.
Moreover, though it appears from Delvond and Rowmond Brown’s statements that the respective declarants (and in the case of the Thompson killing, Kevin) were not the only persons in the vehicles, the statements were not redacted in a manner that would alert the jury that a specific name had been deleted. (See People v. Hampton (1999) 73 Cal.App.4th 710, 719.) As the United States Supreme Court indicated in Gray v. Maryland (1998) 523 U.S. 185, 196, there is a distinction between the following two redactions to the answer to the question: “ ‘Who was in the group that beat Stacey?’ ” (1) “ ‘Me, deleted, deleted, and a few other guys, ’ ” and (2) “ ‘Me and a few other guys.’ ” The redactions here fall in the “ ‘Me and a few other guys’ ” category. In the circumstances, we see no abuse of discretion in admitting the redacted statements at a joint trial.
C. Voluntariness of Rowmond Brown’s Statements
Rowmond Brown sought to exclude evidence of the statements he made to police officers on the ground they were not given voluntarily. The trial court held an evidentiary hearing on the admissibility of various statements. Ferguson spoke with Rowmond the day he was arrested, November 5, 2003. Rowmond was arrested at 9:48 a.m. and placed alone in an interview room at 4:08 p.m. He spent the intervening time in an apartment and handcuffed in the back of a police vehicle. There was no indication that he was given food or restroom breaks during that time.
The interview room where Rowmond was placed that afternoon was approximately eight by ten feet, and had no windows. It had a table and three chairs. When Rowmond knocked on the door and asked to use the restroom at 4:55 p.m., two officers took him there. He was given a cheeseburger, fries, and water at 5:03 p.m., and had another restroom break at 5:47 p.m. Sergeants Ferguson and Galindo entered the room to interview him at 7:30 p.m. After obtaining identifying information, Ferguson advised Rowmond of his Miranda rights, and Rowmond said he understood them. When asked if he wished to talk to the officers, he said, “Yeah. Just get this over with.” After some time, Ferguson showed Rowmond a warrant for his arrest for murder. Rowmond said he had been present when Anderson was shot, and asked for some time alone before talking. Ferguson and Galindo left the room at 10:53 p.m. and returned half an hour later. Rowmond had another restroom break. Ferguson and Galindo then interviewed him and took a taped statement, which began at 12:16 a.m. They left the interview room at 12:37 a.m. At the time, Rowmond was offered water, food, and a restroom break, and he refused. Ferguson testified that except for the time he saw the arrest warrant, Rowmond seemed composed when he answered questions. Rowmond remained in the room until almost noon on November 6, 2003. According to Ferguson, people could lie down and rest either on the floor or table of the interview room, and the lights could be turned off.
Sergeants Cruz and Dunakin, who were investigating the Thompson killing, went to the interview room at 12:58 a.m. on November 6. The interview lasted until 3:00 a.m., and Rowmond said he did not know anything about the shooting on 90th Avenue. Rowmond was taken for restroom breaks at 4:58 a.m. and 7:47 a.m. After the 7:47 a.m. break, he asked to speak with Sergeant Phil Green, who had investigated the homicide case in which Rowmond had previously testified. Green went into the interview room at 8:00 a.m., and Rowmond told him the other investigators—Sergeants Cruz and Dunakin, who were investigating the shooting at 90th Avenue—were “coming at him wrong” and “crossing him up.” Green told Rowmond the shootings at 48th Avenue and 90th Avenue had been committed by the same people, told him (untruthfully) that he had been identified at 90th Avenue, and said that he needed to tell his version of what had happened. Rowmond said he would talk if Green was present. Rowmond was concerned about someone who was in the interview room next to his, and at his request, he was moved to another interview room, which was larger and had windows. Green and Cruz interviewed him, then took a taped statement. Rowmond did not tell Green he was tired. Green and Cruz left the room at 9:24 a.m. Rowmond had another restroom break at 10:49 a.m., and Cruz and Dunakin returned to interview Rowmond at 11:18 a.m. Cruz told Rowmond he had spoken with Delvond Brown, who had told him Rowmond had been in the car at 90th Avenue and Bancroft. Rowmond gave a taped statement beginning at 11:27 a.m.
The trial court found Rowmond’s statements were voluntary. Rowmond challenges this ruling, arguing that the length of time between his arrest and the time he was questioned, the amount of time he spent alone in the interview room, the fact that he was given food only once during the time in question, and the fact that he was in a small, windowless room, show that his statements were made involuntarily as a result of his “inevitable exhaustion.”
“In reviewing the voluntary character of incriminating statements, ‘ “[t]his court must examine the uncontradicted facts surrounding the making of the statements to determine independently whether the prosecution met its burden and proved that the statements were voluntarily given without previous inducement, intimidation or threat. [Citations.]” ’... [¶] A statement is involuntary if it is not the product of ‘ “a rational intellect and free will.” ’ [Citation.] The test for determining whether a confession is voluntary is whether the defendant’s ‘will was overborne at the time he confessed.’ [Citation.] ‘ “The question posed by the due process clause in cases of claimed psychological coercion is whether the influences brought to bear upon the accused were ‘such as to overbear petitioner’s will to resist and bring about confessions not freely self-determined.’ [Citation.]” [Citation.] In determining whether or not an accused’s will was overborne, “an examination must be made of ‘all of the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.’ [Citation.]” [Citation.]’ [Citation.] [¶] A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions. [Citations.] A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 404.) We may consider a variety of circumstances, including the length, location, and continuity of the interrogation, and the defendant’s maturity, education, physical condition, and mental health. (Withrow v. Williams (1993) 507 U.S. 680, 693-694.)
Considering all of these factors, we reject Rowmond’s contentions. We recognize that a significant period of time elapsed between Rowmond’s arrest and the time he was questioned. However, during the time Rowmond was in the interview room he had regular restroom breaks, he was given food once, he refused another offer of food, and he was free to rest during the time he was alone. In the circumstances, we cannot agree with Rowmond that his statements were the result of coercive police activity. We therefore discern no error in the trial court’s ruling that the statements were made voluntarily.
D. Admission of Evidence of Uncharged Killing of Michael Thompson
Defendants contend the trial court abused its discretion in admitting evidence of the uncharged killing of Michael Thompson against them. Evidence Code section 1101, subdivision (a), provides that, with certain exceptions, “evidence of a person’s character... is inadmissible when offered to prove his or her conduct on a specified occasion.” Under subdivision (b), “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident...) other than his or her disposition to commit such an act.” “The admissibility of evidence of uncharged offenses ‘depends upon three principal factors: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence. [Citations.]’ [Citation.]” (People v. Carter (1993) 19 Cal.App.4th 1236, 1246.)
In addition, as our Supreme Court has stated, “[e]vidence of uncharged offenses ‘is so prejudicial that its admission requires extremely careful analysis. [Citations.]’ [Citations.] ‘Since “substantial prejudicial effect [is] inherent in [such] evidence, ” uncharged offenses are admissible only if they have substantial probative value.’ [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 404.) The least degree of similarity between the charged and uncharged offenses is required to prove intent. (Id. at p. 402.) A greater degree is required to prove the existence of a common design or plan; to establish such a common design or plan, “evidence of uncharged misconduct must demonstrate ‘not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.’ [Citation.]” (Ibid.) The plan, however, “need not be distinctive or unusual.” (Id. at p. 403.) The greatest degree of similarity between charged and uncharged conduct is necessary to prove identity; in that case, “the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] ‘The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.’ [Citation.]” (Ibid.)
In People v. Balcom (1994) 7 Cal.4th 414, 418, our high court considered the propriety of admitting, in a prosecution for rape, evidence that defendant had committed another rape shortly after the charged offense. The victim testified that the defendant placed a gun to her head and forced her to engage in sexual intercourse; the defendant testified he had not used a gun and that after a conversation, the two had engaged in consensual intercourse. (Id. at pp. 419-420, 422.) The court concluded the evidence of the uncharged offense was not admissible to prove intent: on the evidence, the question for the jury to decide was whether the defendant forced the victim to engage in intercourse by placing a gun to her head, and if it decided he had done so, no reasonable juror could have concluded he lacked the requisite intent to commit rape. (Id. at p. 422-423.) Thus, while evidence of the uncharged crime would have some relevance to his intent, it would be cumulative, and its probative value to prove intent would be outweighed by the prejudicial value of the evidence. (Id. at p. 423.) The court concluded the evidence was admissible, however, to prove common design or plan, where the question was whether the defendant had committed the act alleged: the two cases occurred only six weeks apart; the defendant behaved in a similar manner in locating his victims and carrying out both rapes; and in each case he took the victim’s automated teller machine card and obtained her personal identification number. (Id. at pp. 423-424.)
In ruling the evidence of the killing of Thompson admissible under Evidence Code section 1101, subdivision (b), the trial court noted several similarities between the killings: both killings were committed on public streets in Oakland during daytime by similarly-sized groups of Black males in their 20s; they were committed only two hours apart; the victims were unarmed; there was no evidence of robbery; the victims were killed in a “ ‘hail of gunfire’ ”; the same two guns were used in both killings; and the killers used automobiles to go to and from the scene of the killing. Accordingly, the jury was instructed pursuant to CALJIC No. 2.50 that it could consider the evidence of the other crime “only for the limited purpose of determining if it tends to show: a characteristic method, plan or scheme in the commission of criminal acts similar to the method, plan or scheme used in the commission of the offense in this case which would further tend to show the existence of the intent which is a necessary element of the crime charged, or the identity of the person who committed the crime, if any, of which the defendant is accused.” We review the trial court’s decision to admit other crimes evidence for abuse of discretion. (People v. Hovarter (2008) 44 Cal.4th 983, 1004.)
As to Delvond and Rowmond Brown, we see no abuse of discretion in this ruling. Delvond and Rowmond contend that the evidence of the 90th Avenue shooting proved no disputed fact, since both of them in their statements to police had admitted being at the scene of the Anderson killing at 48th Avenue. We disagree. In addition to Delvond and Rowmond’s admissions that they were present at the 90th Avenue shooting, there was evidence that a group of African-American males with dreadlocks shot Thompson, that Delvond had dreadlocks and that Rowmond, the driver of the car at 48th Avenue, appeared to at least one witness to have dreadlocks, and that the same guns were used in both shootings. Both Delvond and Rowmond took the position in their statements that they were mere observers of events at both 90th Avenue and 48th Avenue. However, the fact that each brother had been present at the shooting of Thompson two hours before Anderson was gunned down in similar circumstances, with the same guns, could indicate that the two killings were part of a common plan or scheme. This evidence could tend to show that Delvond and Rowmond were willing participants in the charged killing of Anderson and not the victims of an extraordinary coincidence.
We reach a different conclusion as to the admission of the other crimes evidence against Richardson and Rubio. The Attorney General concedes the evidence of the shooting at 90th Avenue should not have been admitted against them because there was no evidence before the jury to tie them to that shooting, and we agree. (See People v. Poulin (1972) 27 Cal.App.3d 54, 65 [“the collateral offense cannot be put in evidence without proof that the accused was involved in its commission”].) We conclude, however, that the error was harmless. The jury was instructed pursuant to CALJIC No. 2.50.1 that it could not consider the evidence of the other crime “for any purpose, unless you find by a preponderance of the evidence that a defendant committed [that] crime.” As there was no evidence before the jury that either Rubio or Richardson was involved in the shooting at 90th Avenue, there is no basis to conclude it would have considered the evidence of that crime against them.
We would reach this result under either the standard for federal constitutional violations (Chapman v. California (1967) 386 U.S. 18, 24) or the more lenient state standard (People v. Watson (1956) 46 Cal.2d 818, 836).
Indeed, it appears that Thompson’s description of his attackers as having dreads excludes Rubio, who seems to have been the shooter at the Anderson killing with a short haircut.
Richardson and Rubio argue, however, that as instructed, the jury could have believed it could consider the evidence of the 90th Avenue shooting against Rubio and Richardson if it found by a preponderance of the evidence that “a defendant”—including Rowmond or Delvond Brown—had committed it. The Attorney General acknowledges that this instruction as given “could have been better worded.” However, we see no likelihood that in fact a jury would have concluded it could use the evidence of the shooting at 90th Avenue against Rubio and Richardson in the absence of evidence that they participated in that crime.
The more recent instruction on this issue, CALCRIM No. 375, informs the jury that it may consider evidence of an uncharged offense “only if the People have proved by a preponderance of the evidence that the defendant in fact committed” the uncharged offense. (Italics added.)
We recognize that during deliberations, the jury sought clarification of the law regarding uncharged offenses, asking the court to “explain in layman’s terms” the definition of “evidence of other crimes by a defendant proved by a preponderance of evidence.” The court drew the jury’s attention to the printed instructions on other crimes evidence (CALJIC Nos. 2.50, 2.50.1), and the instructions on the definition of preponderance of the evidence and proof beyond a reasonable doubt (CALJIC Nos. 2.50.2 & 2.90), and declined to amplify on them further. The foreperson asked, “Since you can’t describe in layman’s terms, could you give an example of preponderance of the evidence?” The court said, “No, I can’t, ” and the foreperson said, apparently to the other members of the jury, “I tried.” This exchange suggests that the jury may have been confused about the meaning of preponderance of the evidence, but it does not suggest the jury was struggling with whether to consider the uncharged 90th Avenue shooting against Rubio and Richardson, where no admissible evidence showed they had been present there.
Defendants contend they suffered cumulative prejudice as a result of the trial court’s assertedly erroneous admission of the redacted statements of Delvond and Rowmond Brown combined with the erroneous admission of the evidence of the killing of Thompson. Because the only error we have found was in the admission of the evidence of the Thompson killing against Rubio and Richardson—error we have found harmless—we reject the claim of cumulative prejudice.
E. Response to Jury Question
In a related argument, defendants challenge the trial court’s refusal to provide additional instruction to the jury when it asked the court to explain in layman’s terms the meaning of “evidence of other crimes by a defendant proved by a preponderance of evidence.” (See section II.D, supra.) Defendants suggest the trial court should have responded to the inquiry by instructing the jury pursuant to CALCRIM No. 375 or inquiring further into the source of the jury’s confusion. We conclude defendants have waived this claim.
While the jury was deliberating the morning after the colloquy in which the jury sought clarification of the meaning of evidence of other crimes proved by a preponderance of the evidence, the trial court revisited the question of the correct response to the jury’s questions outside the jury’s presence. The prosecutor noted that after the jury made its enquiry the previous day, the trial court had told counsel it would not give a layman’s definition and that it would instead give the jury the CALJIC instructions it had already received, and that no counsel had raised an objection. Counsel for Rowmond Brown confirmed that all counsel had approved of the court’s proposal. The prosecutor went on to recommend returning the jury to the courtroom to instruct it pursuant to CALCRIM No. 375. All four defense counsel objected to reading the CALCRIM instruction to the jury at that point.
Thus, the record shows that defendants consented to the trial court’s response to the jury questions. “Where, as here, appellant consents to the trial court’s response to jury questions during deliberations, any claim of error with respect thereto is waived.” (People v. Bohana (2000) 84 Cal.App.4th 360, 373; see also People v. Rodrigues (1994) 8 Cal.4th 1060, 1193.)
F. Evidence that Defendants Passed Gun Among Themselves
Over objection, the trial court admitted evidence that Ragan had told an investigator that at some point in the past, she had seen defendants passing a gun among themselves. She identified the gun she saw as a pistol. Defendants contend the evidence was inadmissible character evidence. We review this ruling for abuse of discretion. (People v. Cox (2003) 30 Cal.4th 916, 955 (Cox), disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 (Doolin).)
Our Supreme Court has ruled that evidence that a defendant previously possessed a weapon is not admissible to show “that he is the sort of person who carries deadly weapons.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1056 (Barnwell.) Thus, where the evidence shows that a certain type of weapon was used in a crime, it is error to admit evidence that other weapons were found in the defendant’s possession. (Ibid.) Where there is evidence that a defendant possessed a weapon that might have been used in the crime, however, the evidence may be admissible. (Cox, supra, 30 Cal.4th at pp. 956-957; see also People v. Carpenter (1999) 21 Cal.4th 1016, 1052 [no error in admitting evidence that defendant possessed gun that might have been murder weapon].)
This is not a case, like Barnwell, in which the weapons evidence showed only that the defendants had a propensity to possess weapons. Anderson was killed with guns that were not recovered. There was evidence that the guns could have been pistols. The evidence of Ragan’s statements was relevant to show defendants possessed, or had access to, handguns of the sort that could have been used to kill Anderson. The trial court did not abuse its discretion in admitting the evidence.
G. Photographic Lineups
Richardson contends the trial court should have suppressed Bunn’s and Lawanda Wills’s identifications of him because they were based on unduly suggestive photo spreads.
In a hearing on Richardson’s motion to suppress the identifications, Sergeant Ferguson testified that when he interviewed Lawanda Wills ten days after Anderson was killed, she described one of the gunmen as being “male, black, 23, 24, six foot one, thin, dark complexion, had dreadlocks.” Ferguson prepared a photographic lineup that included Richardson’s photograph and five other “filler photos.” Lawanda identified Richardson from the lineup. Ferguson interviewed Bunn a few days later. Bunn described one of the killers as “male, black, 20 to 21, 5[-]9, 5-10, dark complexion, ... skinny. No facial hair. Long skinny dreadlocks almost to his shoulders.” Bunn identified Richardson from a photographic lineup as the gunman who had an Uzi.
Richardson argued the photographic lineups were unduly suggestive. According to his counsel, in the lineup Lawanda was shown, Richardson was the only person who had dreadlocks, while the others had braids, and in the lineup Bunn was shown, only one other person—who was not “skinny”—had dreadlocks, while Richardson was the only person with “long skinny dreads.”
The trial court denied Richardson’s motion to suppress, finding the photographic lineups did not give rise to a very substantial likelihood of irreparable misidentification. The court concluded the photographic lineup shown to Lawanda was “very fair, ” that one of the other people in the lineup bore a remarkable resemblance to Richardson in terms of length of hair, complexion, and facial features, and that the others were not dissimilar: their hair was similar, although there were differences in hairstyles, and their complexions and weight were similar to Richardson’s. Similarly, the court found Richardson’s photograph did not stand out in the photographic lineup shown to Bunn, noting that three of the people in the filler photos looked remarkably like Richardson, with similar facial features and complexion, that one of them had a virtually identical hairstyle (and another was the person who in the lineup shown to Wills had similar hair length), and that the other two in the lineup were also similar to Richardson, although their braids or dreadlocks were shorter than Richardson’s. The court concluded that the photographic lineups were “among the best[, ] among the most representative, the least suggestive, the least likely to give rise to a substantial likelihood of irreparable misidentification” it had seen.
“A due process violation occurs when a pretrial identification procedure is so impermissibly suggestive that it gives rise to a very substantial likelihood of irreparable misidentification. [Citation.] The application of this rule depends on the circumstances of each case [citation], including whether the suggestiveness made the defendant ‘stand out’ from the others in the lineup [citation] and whether the identification procedure was unnecessary [citation].” (People v. Carlos (2006) 138 Cal.App.4th 907, 912 (Carlos); see also People v. Ochoa (1998) 19 Cal.4th 353, 412.) Minor differences among the people in a lineup—such as differences in hairstyle or facial hair—do not make a lineup suggestive. (People v. Johnson (1992) 3 Cal.4th 1183, 1217; People v. Bracamonte (1981) 119 Cal.App.3d 644, 656, disapproved on another ground in People v. Calderon (1994) 9 Cal.4th 69, 79-80.) Minor differences in physical appearance are inevitable; the question is whether anything caused the defendant to “ ‘stand out’ ” in a way that made clear the witness should select him. (People v. Carpenter (1997) 15 Cal.4th 312, 367; see also People v. Wash (1993) 6 Cal.4th 215, 245, fn. 11 [discrepancies in hair color did not cause defendant’s photograph to stand out].) We review the trial court’s determination independently. (People v. Kennedy (2005) 36 Cal.4th 595, 608-609, disapproved on another point in People v. Williams (2010) 49 Cal.4th 405, 459.)
We have reviewed the photographic lineups, and we agree with the trial court that they are not “so impermissibly suggestive that [they gave] rise to a very substantial likelihood of irreparable misidentification.” (Carlos, supra, 138 Cal.App.4th at p. 912.) We recognize that Lawanda and Bunn both identified the gunman in question as having dreadlocks, and that some of the others in the lineups appear to have braids, rather than dreadlocks. However, viewing the totality of the circumstances, it appears that the people in the other photographs were similar enough to Richardson in appearance that the lineups were not impermissibly suggestive.
H. Refusal to Strike Jeffrey Bunn’s Testimony
Jeffrey Bunn testified as a prosecution witness under a grant of immunity. (§ 1324.) During his testimony, he said on multiple occasions that he believed his grant of immunity covered perjury he committed while testifying, although he later stated that he did not believe this was the case. He acknowledged, however, having committed numerous acts of perjury during the course of his trial testimony. During cross-examination, this exchange occurred: “Q. You have no concern about lying under oath do you? [¶] A. No. [¶] Q. None whatsoever? [¶] A. Nope.”
Bunn testified over the course of three days, and both the second and third days of his testimony expressed his view that he had immunity for lies he told at trial. After a recess on the final day of his testimony, he testified that he did not think he was immune for perjury committed at trial. Defense counsel then asked Bunn whether he had spoken with the prosecutor between the time he testified on the previous day and when he came back to testify on the third day, and Bunn said he had not done so. Bunn also denied having spoken with the prosecutor about his testimony at any point after he left the stand on the second day of his testimony. The prosecutor later told the court that during morning recess that day he had spoken with Bunn about the importance of telling the truth, that he had asked Bunn if he was willing to testify that he knew the defendants, and that Bunn had said he would do so.
Defendants moved to strike Bunn’s testimony on the ground that he did not understand his oath. The trial court denied the motion, stating that the jury would decide the question of Bunn’s credibility. Defendants contend Bunn was an incompetent witness and the trial court abused its discretion in denying the motion to strike his testimony. According to defendants, Bunn’s trial testimony—particularly the facts that he said he believed his grant of immunity covered lies he told at trial and that he admittedly committed perjury on the stand on numerous occasions—showed he did not understand his duty to tell the truth on the witness stand.
“Evidence Code section 701 provides that a person is disqualified to be a witness if he is (1) incapable of expressing himself regarding the matter so as to be understood, or (2) incapable of understanding his duty to tell the truth. A witness is presumed competent absent a showing to the contrary. [Citation.] The competency of a witness is to be determined by the trial court, whose decision is not to be disturbed in the absence of a clear abuse of discretion. [Citations.] The witness’ competency depends upon his ability to perceive, recollect and communicate; whether he did so accurately and truthfully is a question of credibility to be resolved by the trier of fact. [Citations.]” (People v. Willard (1983) 155 Cal.App.3d 237, 239-240; see also People v. McCaughan (1957) 49 Cal.2d 409, 420-421.) Inconsistencies in testimony do not disqualify a witness, but present questions of credibility for the trier of fact. (People v. Mincey (1992) 2 Cal.4th 408, 444-445; see also People v. Knox (1979) 95 Cal.App.3d 420, 431.)
Applying these standards, we conclude the trial court did not abuse its discretion in declining to strike Bunn’s testimony. The record does not indicate that Bunn lacked the ability to testify truthfully. His numerous instances of lying and perjury presented the jury with a question of credibility, but do not show that he was incompetent. Indeed, although Bunn first testified that he believed his grant of immunity extended to perjury committed during trial, the record shows that the prosecutor corrected this impression, and Bunn later testified that he did not think he had immunity for lies he told during trial. Under the circumstances, the trial court did not abuse its discretion in concluding Bunn was competent to testify and the question of what part—if any—of his testimony was truthful was properly left to the jury.
I. Ineffective Assistance of Counsel
Rubio contends his trial counsel’s actions in connection with Bunn’s testimony deprived him of his constitutional right to effective assistance of counsel. He has raised this issue both on appeal and in a petition for writ of habeas corpus.
As we have explained, Bunn testified at trial that some time after the preliminary hearing, a friend told him a lawyer wanted to talk with him and that he would be given money if he spoke with the lawyer. He testified that he visited the home of Rubio’s attorney, David Kelvin, and, in order to avoid testifying again, signed a document that had already been prepared for his signature, although he had never spoken with Kelvin before. According to Bunn, Kelvin told him that if he signed, he would not have to testify again. Bunn also testified that someone who he presumed was in “the dude’s family” had told him he would be given money if he signed the declaration. Kelvin, however, did not threaten him or offer him money. The document was a declaration stating that Bunn was not present when Anderson was killed, that his testimony at the preliminary examination—which implicated all four defendants—was untrue, and that Sergeant Ferguson had told him what to say.
Bunn was the only witness to identify Rubio at the scene of the Anderson shooting.
Rubio attached Bunn’s declaration to his pretrial motion for a separate trial. During trial, the prosecutor told the court that Bunn had told him that the declaration was false, that it had been prepared before he arrived at Kelvin’s house, and that he had signed the declaration thinking that if he did so, he would not have to be involved with the case anymore. Other counsel expressed concern that Kelvin might be a potential witness, and Kelvin said he would like to interview Bunn, and that if necessary, he would like to be allowed to testify about what Bunn said and did when he met with Kelvin at Kelvin’s house. The trial court indicated that if it became necessary for Kelvin to testify, he would be allowed to do so either in a narrative fashion or by posing questions to himself.
While cross-examining Bunn at trial, Kelvin challenged Bunn’s version of events. For example: “Q. Isn’t the truth the reason you’re telling all these different stories... is you really weren’t there and you don’t know what happened? [¶] A. No. That wasn’t true. You wrote that, not me. [¶] Q. I wrote it because you’re telling all these different stories. [¶] A. You wrote it. You wrote what you wanted to hear. [¶] Q. Okay. Did I sign it? [¶] A. No, you wrote it though. [¶] Q. Okay. Who signed it? [¶] A. I did. [¶] Q. Okay. Who made you sign it? [¶] A. Nobody. [¶] Q. Did you tell me before you signed it, hey Kelvin this is all B-S? And I’m not signing it? [¶] A. No. [¶] Q. You sat there in my house and you agree[d] with me that it was a fair and accurate representation of the events, and you signed it; isn’t that true? [¶] A. I didn’t say nothing was. Fair I didn’t say none of that. [¶] Q. I read it to you before you signed? [¶] A. Why did you write it up. [¶] Q. I wrote it up because I was concerned that you were lying about everything, and I was wondering what the reason was? [¶] A. It’s like -- [¶] [The Court:] Hold on. Mr. Kelvin, you ask[] the question. Mr. Bunn you answer them. Let’s not have questions back and forth.”
Kelvin addressed Bunn’s declaration in his closing argument: “Now, it is true as Mr. Bunn and Mr. Stein have commented at some length that this declaration was prepared before Jeffrey got to my house. Well, I don’t have a computer at my house, okay? I typed it up at the office. I am very seldom at the office. I am in Court all day.... A lot of people come to my house to talk to me about their problems, about all kinds of things. I am an attorney and sometimes I am able to help people.” He pointed out inconsistencies in Bunn’s earlier statement and preliminary hearing testimony, and continued, “So, I am hearing this guy telling all these different cock eyed stories and I am thinking well, maybe this guy wasn’t there. How else can we explain the fact that he has got everything all screwed up?... Maybe he is confused and maybe he wasn’t there. So, I read this declaration to him. I said Jeffrey, if it is not true, don’t sign it.... He signed it. He told me, he signed it because it was true.”
In his rebuttal argument, the prosecutor reminded the jury that Kelvin had written out Bunn’s declaration before Bunn arrived at Kelvin’s house, and that Bunn had testified that Kelvin had told him he would not have to be involved in the case if he signed the declaration. He went on: “[The declaration] says Sergeant Ferguson told me what to say at the preliminary hearing. How did he know to put that in there? He didn’t care whether or not it was true. It didn’t matter, because he knew that Bunn would sign it. He knew that Bunn wanted a ticket out.” He pointed out the importance of Bunn—the only witness to identify Rubio at the shooting of Anderson—and went on, “But now, now [Kelvin] learns that Jeffrey Bunn is going to come in, the whole thing blows up in his face. Now I got to explain how it is he signed this thing. I got to explain how it is I knew what to write out before I even laid eyes on the man, before I even spoke to him. You might be saying to yourself, wait a minute, is this how criminal law works? Is this how the system works? Answer, no. That’s not how it works. This is not normal practice, ladies and gentlemen. It’s not normal practice.” The prosecutor went on to argue that Kelvin’s actions showed how important Bunn’s evidence was.
Rubio argues that because the circumstances of Bunn signing the declaration were an issue at trial, his counsel had a conflict of interest that adversely affected the quality of his representation. According to Rubio, Kelvin’s actions in obtaining Bunn’s declaration supported the prosecution’s theme that witnesses were too afraid to testify truthfully against defendants, as shown by the witnesses who testified they could not recall the events surrounding Anderson’s death or their previous statements to police officers. Rubio argues the jury must have viewed Kelvin’s actions as an unethical attempt to exploit Bunn’s fear in order to suppress evidence and that the jury transferred the blame from Kelvin to Rubio. He argues Kelvin should have taken measures to prevent the conflict from prejudicing him, such as withdrawing as counsel, bringing in second counsel so he could testify, or asking for an in camera hearing to discuss the issue, and that he should also have informed Rubio of the conflict so Rubio could make an informed decision about protecting his own interests. He also argues the trial court had a duty to inquire into the matter and failed to do so. According to Rubio, Kelvin’s personal involvement in the matter prevented him from objectively evaluating possible responses to Bunn’s anticipated testimony, including trying to keep Bunn’s declaration from the jury or objecting to any mention of Kelvin’s behavior in obtaining the declaration on the ground there was no evidence Rubio had authorized it.
Lawanda Wills, for instance, who shortly after Anderson was killed had told Ferguson she had seen Dickerson try to break up Delvond Brown’s confrontation with Anderson and had identified Richardson as shooting Anderson, testified at trial that she could recall virtually nothing about the day Anderson was killed, did not recall being present when Anderson was shot, did not recall seeing Anderson at the time in question, did not recall seeing two gunmen running up to him, did not recall Dickerson trying to restrain someone from getting to Anderson, did not recall seeing Anderson fall after being shot, did not recall running to some apartments after Anderson was shot, did not recall identifying anyone in lineups, and did not recall drawing a diagram for the detectives when they interviewed her.
In Doolin, supra, 45 Cal.4th at p. 421, our Supreme Court held that conflict of interest claims under the California Constitution are to be analyzed under the standard articulated by the United States Supreme Court in Mickens v. Taylor (2002) 535 U.S. 162 (Mickens), and described the rule of Mickens thus: “In [Mickens], the high court confirmed that claims of Sixth Amendment violation based on conflicts of interest are a category of ineffective assistance of counsel claims that, under [Strickland v. Washington (1984) 466 U.S. 668, 694 (Strickland)], generally require a defendant to show (1) counsel’s deficient performance, and (2) a reasonable probability that, absent counsel’s deficiencies, the result of the proceeding would have been different. [Citation.]” (Doolin, 45 Cal.4th at p. 417; see also Mickens, 535 U.S. at p. 166.)
An exception to this general rule exists, however, and prejudice is presumed, “where assistance of counsel has been denied entirely or during a critical stage of the proceeding. When that has occurred, the likelihood that the verdict is unreliable is so high that a case-by-case inquiry is unnecessary. [Citations.] But only in ‘circumstances of that magnitude’ do we forgo individual inquiry into whether counsel’s inadequate performance undermined the reliability of the verdict.” (Mickens, supra, 535 U.S. at p. 166.) Such circumstances may exist, for instance, “when the defendant’s attorney actively represented conflicting interests.” (Ibid.)
Interpreting this exception to the general rule requiring a showing of prejudice, the California Supreme Court has concluded that “Strickland provides the appropriate analytic framework for assessing prejudice arising from attorney conflicts of interest outside the context of multiple concurrent representation.” (Doolin, supra, 45 Cal.4th at p. 428.) In doing so, it agreed with and followed Beets v. Scott (5th Cir. 1995) 65 F.3d 1258 (Beets), stating, “In Beets, the court explained that a presumption of prejudice should be limited to the context of multiple concurrent representation because only in that context ‘is the duty of loyalty so plain. Only then is the risk of harm high enough to employ a near-per se rule of prejudice. While loyalty may be implicated in other judgments a lawyer makes, in no other category of conflicts is the risk of prejudice so certain as to justify an automatic presumption. [Citation.] When the duty of loyalty is challenged by an attorney’s self-interest, the range of possible breaches... is virtually limitless. Likewise, their consequences on the quality of representation range from wholly benign to devastating. [Citations.]... [¶]... [¶] In stark contrast to multiple representation situations, there is little meaningful distinction between a lawyer who inadvertently fails to act and one who for selfish reasons decides not to act. The “conflict” between the lawyer’s self-interest and that of his client is not a real conflict in the eyes of the law. Rather than being immobilized by conflicting ethical duties among clients, a lawyer who represents only one client is obliged to advance the client’s best interest despite his own interest or desires.’ (Beets, supra, 65 F.3d at pp. 1270-1271, fn. omitted.)” (Doolin, supra, 45 Cal.4th at pp. 428-429.)
Defendant argues that the court in Doolin misinterpreted Mickens to require a showing of Strickland prejudice in circumstances such as these. We are, of course, bound by the rulings of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The conflict Rubio claims is not based on multiple concurrent representation, but rather on trial counsel’s self-interest. (See Doolin, supra, 45 Cal.4th at p. 428.) In the circumstances, we will apply the rule of Strickland, under which we will not reverse a judgment for ineffective assistance of counsel unless the defendant has shown not only that counsel’s performance was deficient but also a reasonable probability that the result would have been different absent those deficiencies. (See Doolin, supra, 45 Cal.4th at p. 417; Strickland, supra, 466 U.S. at p. 694.)
We need not decide whether Rubio’s trial counsel’s performance was deficient because, on this record, we cannot conclude that there is a reasonable probability that the result would have been different had he acted differently. Rubio suggests that nonconflicted counsel would have tried to keep the jury from hearing of Bunn’s declaration recanting his earlier testimony. However, although Bunn’s story changed a number of times, every version of events he gave—with the sole exception of the declaration—indicated he had been nearby when Anderson was killed and that Rubio was involved. We see no probability that the jury would have been more likely to disbelieve the consistent kernel of his story if it had not heard that he recanted it. Rubio also suggests Kelvin should have withdrawn as counsel or taken other action to allow him to testify about the circumstances in which the declaration was signed. We recognize that both Bunn’s testimony and the prosecutor’s argument cast Kelvin’s actions in a questionable light. However, it does not appear reasonably probable that the jury’s conclusion would have been different had Kelvin acted differently. Bunn’s credibility was suspect, and was impeached on cross-examination. Indeed, even the prosecutor acknowledged that Bunn had lied. While it might have been possible to improve the jury’s view of the circumstances surrounding the declaration, no actions by counsel would have changed the fact that Bunn told officers shortly after the shooting that Rubio had been involved in killing Anderson, that he had reaffirmed that fact at the preliminary hearing, and that after signing the declaration, he had once again testified to Rubio’s involvement at trial. In the circumstances, we must reject Rubio’s claim that he was deprived of effective assistance of counsel.
By separate order, we deny Rubio’s petition for writ of habeas corpus.
J. Clerical Errors in Abstracts of Judgment
The trial court sentenced Delvond Brown to a prison term of 25 years to life for murder (§ 187, subd. (a)) and an additional 10 years for personal use of a firearm (§ 12022.53, subd. (b)), for a total sentence of 35 years to life. Section one of the indeterminate abstract of judgment recited that Delvond had been convicted of murder in count one. Section two noted that a 10-year enhancement had been imposed pursuant to section 12022.53, subdivision (b). As pertinent, section four stated that Delvond had been sentenced to an indeterminate term of 35 years to life on count one, “PLUS enhancement time shown above.” As Delvond points out, the abstract of judgment thus reflects a total sentence of 35 years to life plus a 10-year enhancement, rather than the sentence the trial court actually imposed—25 years to life plus a 10-year enhancement. It must therefore be corrected to reflect the correct sentence.
Although the other defendants do not raise this argument independently, they have joined in their co-appellants’ arguments to the extent they are applicable. We note that their indeterminate abstracts of judgments are similarly inaccurate. Accordingly, Rowmond Brown’s abstract of judgment should be corrected to reflect a sentence of 25 years to life plus a one-year enhancement (§§ 187, subd. (a) & 12022, subd. (a)(1)); Richardson’s abstract of judgment should be corrected to reflect a sentence of 25 years to life plus a 25-year enhancement (§§ 187, subd. (a) & 12022.53, subd. (d)); and Rubio’s indeterminate abstract of judgment should be corrected to reflect a sentence of 25 years to life plus a 10-year enhancement (§§ 187, subd. (a) & 12022.53, subd. (b)).
III. DISPOSITION
The clerk of the court is directed to amend the indeterminate abstracts of judgment as set forth in section II.J of this opinion, and forward corrected copies of the abstracts of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgments are affirmed as to all defendants.
We concur: RUVOLO, P.J., REARDON, J.