Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of San Bernardino County No. FSB036676, Kyle S. Brodie, Judge.
IRION, J.
A jury convicted Ernest Frank Chastain and Jorge Herrera of first degree murder (Pen. Code, § 187, subd. (a)), and made true findings that Herrera and Chastain personally used a firearm (§ 12022.53, subd. (b)) and personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and that Herrera personally and intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)).
Unless otherwise indicated, further statutory references are to the Penal Code.
The trial court sentenced Herrera to an indeterminate prison term of 50 years to life. The trial court sentenced Chastain to an indeterminate prison term of 25 years to life for the murder conviction to run consecutively with a determinate prison term of 20 years for the firearm enhancement.
On appeal, Herrera contends (1) that the trial court committed prejudicial error by excluding third party culpability evidence on the ground that it was inadmissible hearsay; and, in an argument joined by Chastain who also appeals, (2) that constitutional rights were infringed when the trial court, applying Code of Civil Procedure section 237, declined to provide juror contact information sought by defense counsel to support an allegation of juror misconduct. Chastain contends that the trial court erred in (1) admitting evidence of an unduly suggestive out-of-court identification; (2) instructing with CALCRIM No. 372 regarding flight; and (3) refusing to give an instruction on voluntary manslaughter.
We conclude that the trial court prejudicially erred in excluding the third party culpability evidence that Herrera sought to have admitted, but we find no merit to appellants' remaining contentions. Accordingly, we reverse the judgment as to Herrera and affirm as to Chastain.
I
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of October 18, 2002, Donald Peron, Carmen Gutierrez, Melinda Davis and Steven Van Gestal were in the living room of a home on Elm Street in Highland, California, where Peron, Davis and Van Gestal lived. Peron was Van Gestal's uncle and Davis was Van Gestal's fiancée. Peron, who was a drug dealer, was at the kitchen table separating out methamphetamine that he had purchased earlier in the evening from his supplier in a neighborhood he referred to as "Little Africa."
Chastain knocked on the door of the house, identified himself and indicated that he wanted to buy drugs. Chastain was known to the occupants of the house, as he had lived at the house for a short time earlier in the year.
Peron had spoken to Chastain previously that evening when he saw him in a parking lot. During that earlier conversation, Chastain was with a man wearing a hooded sweatshirt, and Chastain tried to buy drugs from Peron. Peron told Chastain that he was in a rush to leave and that Chastain should call him on his cell phone but should not come to his house because the police were watching it.
When Chastain knocked on the door of the Elm Street house later that evening and stated that he wanted to buy drugs, Peron told him to go away. After Peron opened the door, Chastain inched his way into the house. While Peron was trying to stop Chastain from coming any further into the house, a man appeared from behind Chastain, entered the house and hit Peron "pretty hard" in the side of the head with a gun. The man with the gun was wearing a hooded sweatshirt with the hood pulled over his head so that Peron initially could not see his face. He told everyone in the house to get down on the ground and told Peron, "you, motherfucker, give me everything that you got" while holding the gun against Peron's temple.
As the man with the gun turned to lock the front door, the hood slipped off his head, and Peron recognized him as Herrera. Peron also recognized the.38 caliber nickel-plated revolver that Herrera was holding against his head as the same gun that Herrera had threatened him with two months earlier when the men argued about whether Peron was lying as to the whereabouts of a woman, Lisa Arellano, whom they both had dated at some point. Peron had known Herrera for approximately a year and a half by October 2002, but had only seen him five or six times.
When the gun came away from Peron's head for a moment, he ran toward the kitchen to exit through the back door. As Peron started to run, Chastain grabbed Peron around the shirt collar and ripped off some of his gold necklaces. While Peron ran toward the kitchen, Peron saw Herrera crouched down with a gun, and he heard gunshots ring out in his direction. Van Gestal was sitting in a chair that was situated in Peron's path, and as Van Gestal moved to get down on the ground, he was fatally shot in the back by a bullet that perforated his lung and liver.
Herrera waived a gun around the room, and he and Chastain then exited the house and drove away. After reaching his sister's house next door, Peron called 911 to report the shooting and identified Chastain as the shooter during the call.
The bullet that killed Van Gestal was a.38 caliber bullet. The police found fired.38 caliber and.32 caliber bullets at the scene. Gutierrez, but not Peron or Davis, saw Chastain holding a gun during the incident. There was no evidence that Peron, Van Gestal or either of the women in the house displayed a gun during the incident. A single particle of gunshot residue was found on Van Gestal's hands.
Peron testified at trial that despite his statement to the 911 operator, he was sure that Chastain was not the shooter.
Approximately two weeks after the murder, Peron spoke to a police detective. He identified the perpetrators as Chastain and Herrera and identified Herrera in a photographic lineup. Peron told the police detective that Herrera had a large tribal tattoo on the top of his head. At trial, Peron was asked to view Herrera's head, and no tattoo was present.
In January 2003, Peron spoke to an investigator from the district attorney's office and told her that he wanted to "straighten things out." He said that he mistakenly accused Herrera and had assumed that Herrera was the perpetrator because of the nickel-plated gun that he saw during the shooting. Peron testified at trial that he had developed doubts about his identification of Herrera when someone told him that the actual perpetrator was someone who looked just like Herrera.
Although the trial court excluded much of the evidence about the hearsay statements that caused Peron to doubt his identification of Herrera, the jury did hear evidence that Lisa Arellano - who had dated Herrera and Peron - told Peron something that caused him to want to speak to the district attorney's investigator.
Later, Peron spoke with the investigator and told her to disregard what he had said in January 2003; he now believed the perpetrator was Herrera. At trial, Peron identified Herrera and testified that he was sure Herrera was the person in the house during the shooting.
The Attorney General's brief states that this second conversation between Peron and the investigator occurred on February 9, 2003. However, according to the testimony at trial, the conversation occurred on February 9, 2004.
Davis could not identify Herrera in a photographic lineup, but she identified Herrera during two subsequent court hearings and at trial. Davis testified at trial that she had no doubt that Herrera was the man she saw in the house with the gun, which she identified as a black revolver. Gutierrez could not identify Herrera at trial.
A felony complaint filed on October 28, 2002, charged Chastain with murder, and he was arraigned on October 29, 2002. A felony complaint filed on November 7, 2002, charged Herrera with murder and a warrant for his arrest was issued, but Herrera was not arrested until he was located in Nevada in February 2003.
In August 2008, an amended information charged Herrera and Chastain with first degree murder (§ 187, subd. (a)) along with the further allegations that Herrera and Chastain personally used a firearm (§ 12022.53, subd. (b)) and personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and that Herrera personally and intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)). The matter proceeded to trial, and the jury found both defendants guilty and made true findings on the firearm enhancements. After denying a motion for new trial, the trial court sentenced Herrera to an indeterminate prison term of 50 years to life and sentenced Chastain to an indeterminate prison term of 25 years to life to run consecutively with a determinate prison term of 20 years.
Herrera and Chastain both appeal from the judgments.
II
DISCUSSION
A. Exclusion of Third Party Culpability Statement Given by Johnny Chagolla
We first consider Herrera's argument that the trial court erred by ruling that evidence of a third party confession to the shooting would not be admitted at trial because it was inadmissible hearsay.
On July 7, 2006, Johnny Chagolla gave a statement to Herrera's private investigator. At the time, Chagolla was in local custody after having been convicted of first degree murder and sentenced in May 2006 to a prison term of 90 years to life. The private investigator recorded Chagolla's statement, and a transcribed version of the statement appears in the record.
The details of Chagolla's conviction and sentence are not included in the record, but the parties do not dispute them, and we thus recite them here as background information. From our review of the record, it appears that the trial court was informed that Chagolla had been convicted of first degree murder and that he was serving a prison term of at least 75 years to life. The trial court asked counsel for information as to when Chagolla's conviction became final, but counsel did not know. Herrera requests that we take judicial notice of (1) certain minutes from Chagolla's murder trial and (2) the unpublished appellate opinion affirming Chagolla's conviction (People v. Chagolla (Oct. 18, 2007, E041650). The Attorney General opposes the motion. We deny the motion, as the materials at issue are unnecessary to our decision. (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [declining to take judicial notice of materials that are not "necessary, helpful, or relevant"].)
According to the transcribed statement, Chagolla told Herrera's investigator that on the evening of October 18, 2002, he drove to the area of Highland he referred to as "Little Africa" and was looking to buy some drugs. He saw the "little homey" there and asked him if he knew where Chagolla could buy drugs. The "little homey" took Chagolla to Elm Street to talk to a "White guy, tall and skinny." After being let into the house on Elm Street, Chagolla and the "little homey" asked to buy drugs, but the man refused because Chagolla was unfamiliar to him and might be "a cop or an informant." Chagolla became angry and punched the man on the side of the head. The "little homey" asked Chagolla "what the hell, what are you doing?" Chagolla then saw another man in the living room sitting on the couch who pulled out a gun. In response, Chagolla pulled out his gun and started shooting. The man they had come to buy drugs from ran away, and the "little homey" ran out the front door. When Chagolla finished shooting, he exited the house and heard a couple of gunshots that he assumed were directed at him. When Chagolla got into the car to drive away, the "little homey" was ducked down in the back seat and said, "[W]hy the hell did you do that[?]" After they drove away Chagolla told the "little homey" that "[i]f you fuckin' tell on me or say anything, I'm gonna fuckin' blast you." Herrera's investigator asked Chagolla whether everything he said was truthful, whether he knew what the term "under penalty of perjury" meant, and whether "[u]nder penalty of perjury, of the laws in the State of California, on this date, you do agree." Chagolla answered affirmatively, and the recorded interview was concluded.
At trial, Herrera called Chagolla as a witness. After Chagolla answered a few questions on direct examination, including complying with a request to show the jury the tattoo on the top of his head and admitting he previously shot someone, the trial court appointed counsel to confer with Chagolla. Chagolla then invoked his right to refuse to testify under the Fifth Amendment to the United States Constitution. The court informed the jurors that Chagolla had chosen not to testify and instructed the jurors that they should disregard Chagolla's testimony and presence at trial.
At a pretrial hearing, after consulting with an appointed attorney Chagolla indicated that he intended to testify at trial. At the time, counsel for Chastain noted for the record that a conviction for a second murder could make Chagolla eligible for the death penalty under section 190.2, subdivision (a)(2), and that he might also be eligible for the death penalty under section 190.2, subdivision (a)(17) under a felony murder theory.
In the absence of Chagolla's testimony, counsel for Herrera proposed to call as a witness the private investigator who interviewed Chagolla. Both the prosecutor and counsel for Chastain objected that any testimony by the investigator about Chagolla's statement would constitute hearsay and that, contrary to the argument made by counsel for Herrera, Chagolla's statement did not fall under the hearsay exception for a declaration against interest under Evidence Code section 1230.
The trial court decided against admitting Chagolla's statement, providing two alternative grounds for its ruling. First, the trial court concluded that "the hearsay exception set forth in Evidence Code section 1230 does not apply" because "the only fair construction of [Chagolla's] statement is that in fact it is not against his penal interest, " and thus Chagolla's statement was inadmissible hearsay. Second, the trial court concluded that even if the statement was admissible as a declaration against interest, "it would not be admissible against Mr. Chastain." On this point, the trial court stated that "it can't be introduced against Mr. Chastain, because he has a right to confrontation. That's going to trump anything in the Evidence Code...."
Herrera argues that neither of the grounds given by the trial court for excluding evidence of Chagolla's statement has merit. We first consider whether the trial court erred in ruling that Chagolla's statement would not be admitted as a declaration against interest under Evidence Code section 1230.
1. The Trial Court Abused Its Discretion in Concluding That the Hearsay Exception for Declarations Against Interest Did Not Apply
a. Applicable Law
Hearsay is generally inadmissible unless an exception applies. (Evid. Code, § 1200.) According to the hearsay exception for declarations against interest, "[e]vidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true." (Evid. Code, § 1230.)
Here, there is no dispute that Chagolla was unavailable, as he asserted the privilege against self-incrimination. (See People v. Leach (1975) 15 Cal.3d 419, 438 (Leach) ["under California law the declarant's assertion of the privilege against self-incrimination satisfies the unavailability requirement of the against-interest exception"]; Evid. Code, § 240, subd. (a)(1) [defining " 'unavailable as a witness' " to include a witness who invokes a privilege].) The only issue in dispute is whether Chagolla's statement "so far subjected him to the risk of... criminal liability... that a reasonable man in his position would not have made the statement unless he believed it to be true." (Evid. Code, § 1230.)
"We review a trial court's decision as to whether a statement is against a defendant's penal interest for abuse of discretion." (People v. Lawley (2002) 27 Cal.4th 102, 153 (Lawley).)
Our Supreme Court recently summarized the law applicable to the declaration against penal interest exception to the hearsay rule. As it explained, " '[t]he proponent of such evidence must show "that the declarant is unavailable, that the declaration was against the declarant's penal interest, and that the declaration was sufficiently reliable to warrant admission despite its hearsay character." '... 'The focus of the declaration against interest exception to the hearsay rule is the basic trustworthiness of the declaration.... In determining whether a statement is truly against interest within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy to be admissible, the court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant.'... '[E]ven when a hearsay statement runs generally against the declarant's penal interest and redaction has excised exculpatory portions, the statement may, in light of circumstances, lack sufficient indicia of trustworthiness to qualify for admission.... [I]n this context, assessing trustworthiness " 'requires the court to apply to the peculiar facts of the individual case a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception.' " ' " (People v. Geier (2007) 41 Cal.4th 555, 584, citations omitted (Geier).) "Courts applying [Evidence Code] section 1230 to determine the basic trustworthiness of a proffered declaration are... to 'consider all the surrounding circumstances to determine if a reasonable person in [the declarant's] position would have made the statements if they weren't true.' " (People v. Duarte (2000) 24 Cal.4th 603, 618 (Duarte).)
b. The Trial Court Abused Its Discretion
In deciding whether the hearsay exception in Evidence Code section 1230 applied to Chagolla's statement, the trial court focused solely on whether Chagolla considered the statement to be against his penal interest when he made it. In conducting this analysis, the trial court made two points: (1) that Chagolla "couche[d] the statement in terms of it being in his own subjective view a crime of self-defense, " and thus Chagolla would not have viewed the statement as subjecting him to criminal liability; and (2) that Chagolla was "already serving what is in effect a life without parole sentence, " and thus the punishment from any additional conviction would be meaningless to Chagolla. Based on these two considerations, the trial court concluded that Chagolla's statement did not qualify as a declaration against penal interest. As we will explain, the trial court abused its discretion in making this ruling.
Indeed, the trial court declined to consider the prosecutor's arguments that the statement was untrustworthy and unreliable in light of (1) Chagolla's history and possible interest in giving a false statement and (2) the statement's inconsistencies with the evidence at trial. The trial court stated, "Well, I'm reluctant to make the reliab[ility] determination if I don't have to." The trial court stated that "[t]he Supreme Court has backed away substantially from using those sort of [re]liability catchalls as bearing on the hearsay question. I think appropriately so, because it threatens to [in]vade the province of the jury if you go too far down that road." Therefore, the trial court focused exclusively on the threshold question of whether Chagolla's statement was a declaration against penal interest rather than on its trustworthiness.
i. Chagolla's Statement Exposed Him to the Death Penalty
We first examine the trial court's reasoning that Chagolla's long prison term rendered the threat of any other punishment meaningless. On this subject, the trial court examined and rejected the possibility that a conviction for Van Gestal's murder could subject Chagolla to the death penalty. The trial court concluded that the special circumstance under section 190.2, subdivision (a)(17)(A) for a murder committed in the course of a robbery was not applicable because Chagolla did not describe a robbery in his statement to the investigator. The trial court also concluded that the special circumstance in section 190.2, subdivision (a)(2) for "a defendant convicted previously of murder in the first or second degree" did not apply because Chagolla's prior murder conviction was not in place at the time of Van Gestal's murder. When considering this point, the trial court asked counsel, "... I haven't looked at it recently. Does the special circumstance of a prior murder require the conviction be in place before the murder occurs?" The prosecutor and counsel for Herrera answered affirmatively. The trial court relied on this representation and stated to the prosecutor, "So you are right, so that special circumstance wouldn't apply."
The legal premise of the trial court's analysis was flawed. Contrary to what the trial court was told by counsel, a prior murder constitutes a special circumstance within the meaning of section 190.2, subdivision (a)(2), even when the defendant was not convicted of the first murder before he committed the second murder. Our Supreme Court has expressly rejected the arguments that (1) the special circumstance in section 190.2, subdivision (a)(2) "would apply only if [the defendant] had both committed and been convicted of a murder before [the defendant] committed the present capital offenses"; and (2) "the death penalty is appropriate only when a defendant commits murder after he has been put on notice by a previous murder conviction that if he repeats the crime he might suffer the ultimate punishment." (People v. Hendricks (1987) 43 Cal.3d 584, 595.) Indeed, our Supreme Court has explained that for the special circumstance set forth in section 190.2, subdivision (a)(2), "all murders committed by a defendant, not just those occurring temporally before the present crime, are relevant." (People v. Gurule (2002) 28 Cal.4th 557, 636.)
We acknowledge that if, in fact, Chagolla had not been subject to any meaningful additional punishment for a subsequent murder conviction, the trial court would have been within its discretion to consider that fact in determining whether the declaration against penal interest exception applied. "For example, a prisoner serving three consecutive life sentences was found to have 'de facto immunity' and his statement was held to be inherently untrustworthy and inadmissible. (United States v. Silverstein (7th Cir. 1984) 732 F.2d 1338, 1346-1347.)" (People v. Gordon (1990) 50 Cal.3d 1223, 1279, 1281 (conc. opn. of Kennard, J.).) However, that is not the case here because, as we have explained, under California law Chagolla could receive the death penalty for the killing that he admitted in his statement.
"[A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue." (People v. Russel (1968) 69 Cal.2d 187, 195.) " ' "To exercise the power of judicial discretion all the material facts in evidence must be known and considered, together also with the legal principles essential to an informed, intelligent and just decision." [Fn. omitted.]' " (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1448, quoting In re Cortez (1971) 6 Cal.3d 78, 85-86.) Here, the trial court abused its discretion in determining that Chagolla's statement was not a declaration against penal interest because it based that decision on an erroneous understanding of the applicable legal principles.
ii. Chagolla Made a Statement Against Penal Interest When He Identified Himself as Involved with Van Gestal's Murder, Regardless of Whether He Portrayed the Shooting as Self-Defense
We next examine the trial court's conclusion that Chagolla's statement was not against his penal interest because he described the shooting as an act of self-defense, occurring after somebody pointed a gun at him. The Attorney General argues that the trial court's conclusion is consistent with numerous decisions approving the exclusion of statements in which a declarant admits involvement but attempts to minimize his or her culpability. Under these authorities, "[e]ven a hearsay statement that is facially inculpatory of the declarant may, when considered in context, also... have a net exculpatory effect." (Duarte, supra, 24 Cal.4th at p. 612.) "[T]hat a hearsay statement may be facially inculpatory or neutral cannot always be relied upon to indicate whether it is 'truly self-inculpatory, rather than merely [an] attempt[] to shift blame or curry favor.' " (Id. at pp. 611-612.) For example, one court has stated that that "indicia of reliability are lacking where the declaration is made to authorities after the declarant has been arrested and charged with a serious offense or after he has pled guilty to a lesser offense and is awaiting sentencing and where... the statement is exculpatory in the sense that the declarant has blamed a coparticipant for the commission of the greater offense while admitting complicity to some lesser degree." (People v. Shipe (1975) 49 Cal.App.3d 343, 354.)
Three recent opinions by our Supreme Court illustrate the application of this concept. In all three of these cases, the declarants were already suspected or implicated in the crimes, and made statements admitting involvement in the crimes while also attempting to minimize their culpability. First, in Duarte, supra, 24 Cal.4th 603, after the declarant was arrested in connection with a gang shooting, he made a statement in which he admitted his involvement in the shooting but stated that his codefendant was the shooter and the instigator. (Id. at pp. 611, 613.) At the time the declarant made the statement, he knew that the authorities already knew who was involved in the crime, had physical evidence linking the declarant to the crime, and had suggested that the declarant might receive leniency if he cooperated. (Id. at p. 617.) Under these circumstances, the court concluded that the declarant could have determined "that he had little to lose and perhaps something to gain by admitting his role while attempting to minimize his participation and shift primary responsibility to others" and thus the statement was not sufficiently trustworthy to be admitted as a declaration against interest. (Ibid.) The court noted that "the against penal interest hearsay exception 'breaks down in a situation where a declarant in police custody seeks to exculpate himself by implicating another suspect.' " (Id. at p. 618.) Second, in Geier, supra, 41 Cal.4th 555, a wife who was a suspect in her husband's murder confessed to the killing, stating that she had committed the killing because she had just quarreled with him and he had hurt their daughter. (Id. at p. 585.) Geier ruled that the trial court was within its discretion to conclude that the statement was not admissible as a declaration against penal interest because, among other things, the wife may have "believed that this explanation minimized her culpability or excused her conduct altogether" or she may have been attempting to take the blame for her lover and his associate who were also suspects, and she had given two other accounts, which were completely inconsistent with her confession. (Ibid.) Finally, in People v. Butler (2009) 46 Cal.4th 847, 852, the declarant, along with the defendant, was charged with murder for the killing of another prisoner while they were incarcerated. The declarant gave a statement stating that he killed the victim only after the victim pulled a weapon on him. (Id. at p. 865.) Butler affirmed the trial court's ruling that the declarant's statement was not admissible as a declaration against interest because, among other things, the declarant "attempted to justify his actions, rather than to incriminate himself, " and thus the statement was untrustworthy. (Id. at p. 866.)
These cases are all based on a concern that the declarant - who has already been connected in some way with the crime - could have a motivation to give a false statement that minimizes his or her culpability. That concern is not present here. There is no evidence that Chagolla was suspected by authorities to be connected with Van Gestal's murder at the time he gave a statement inculpating himself in the shooting. Thus, Chagolla was acting distinctly against his interest in identifying himself as being at the scene of the crime, regardless of whether he described himself as committing the shooting in self-defense. The record simply contains no evidence giving Chagolla a motivation to falsely implicate himself in a shooting in which he was not a suspect. As our Supreme Court has noted, "there is a 'vast difference between an informant who comes in off the street to confess complicity in a crime and identify his confederate, and one who, caught with inculpatory evidence, identifies someone else as the principal culprit. [¶] Information received from sources who are themselves the focus of pending criminal charges or investigations is inherently suspect.' " (Duarte, supra, 24 Cal.4th at p. 617.) Chagolla is like the defendant who comes in off the street to confess complicity in a crime, as his statement to the investigator subjected him to penal consequences that did not exist before he made the statement.
During the argument of Herrera's motion for a new trial, the prosecutor argued that Chagolla's statement was also untrustworthy because it "is common within the gang community, [of] which Mr. Chagolla is a member, to take the rap for somebody else once they have been convicted and sentenced to life." The Attorney General does not make that argument on appeal, and we note that the trial court record contains no evidence concerning Chagolla's or Herrera's gang affiliation or whether the practice referred to by the prosecutor is common.
"Whether a statement is self-inculpatory or not can only be determined by viewing the statement in context." (Lawley, supra, 27 Cal.4th at p. 153, italics added.) The trial court erred in failing to focus on the context in which Chagolla made his statement, and in particular, the fact that Chagolla was not connected to the crime by the authorities at the time he made the statement. Taking the entire context into consideration, Chagolla's statement does not lack trustworthiness merely because he claims that he shot Van Gestal in self-defense.
Raising an argument not considered by the trial court, the Attorney General argues that Chagolla's statement was untrustworthy, and thus not admissible as a declaration against interest, for the further reason that it was "absolutely inconsistent with the evidence presented at trial." According to the Attorney General, "[t]here was absolutely no testimony corroborating Chagolla's claim that he had punched the person who opened the door, nor was there any testimony corroborating his assertion that the victim had a gun." We disagree. First, Peron described something very similar to a punch when he stated that he was hit "pretty hard" on the side of the head with a gun when the gunman first entered the house. Second, although substantial evidence does not support a finding that Van Gestal had a gun, no physical evidence decisively precludes that possibility, as an expert testified that a particle of gunshot residue was found on Van Gestal's hands, which could have come from firing a gun. The Attorney General also points out that Chagolla's statement placed Van Gestal on a couch, in contrast to the evidence at trial that placed him in a chair. In our view, this inconsistency in a statement given almost four years after the incident is not significant. Indeed, the witnesses at trial gave conflicting testimony about where Van Gestal was located, with Peron placing him in a reclining chair and Davis placing him in a dining room table chair.
Apart from these relatively minor inconsistencies, the details of Chagolla's statement are, on the whole, reasonably consistent with the evidence at trial, and thus the statement may in fact be true. The possible truth of a statement is a permissible factor to consider when determining whether a statement against penal interest is sufficiently trustworthy to satisfy Evidence Code section 1230. (See People v. Cudjo (1993) 6 Cal.4th 585, 607 ["given the circumstances of [the declarant's] alleged statement, the trial court had discretion to conclude that it was admissible despite its hearsay character because, if made as claimed, it was probably true.... [The declarant] tended to fit [a witness's] description of the assailant, and much of the other evidence... was as consistent with [the declarant's] guilt as with defendant's."].)
In sum, Chagolla's statement did not lack indicia of trustworthiness for either of the reasons identified by the trial court. Moreover, the record contains no evidence that Chagolla had a motive to lie about his involvement in the shooting, and his statement was reasonably consistent with the evidence at trial. We therefore conclude that the trial court abused its discretion in determining that the Chagolla's statement did not qualify as a declaration against penal interest under Evidence Code section 1230.
As the trial court correctly pointed out, only those portions of Chagolla's statement that were specifically disserving to his penal interests would be admissible under Evidence Code section 1230, and the other portions of the statement would have to be excised and not referred to during the investigator's testimony. (See Leach, supra, 15 Cal.3d at p. 441; Duarte, supra, 24 Cal.4th at p. 612.) We make no ruling on which specific portions of Chagolla's statement are admissible under Evidence Code section 1230 and which portions should be excised.
2. Exclusion of Chagolla's Statement Based on Chastain's Right to Confrontation
We next consider whether the trial court properly excluded evidence of Chagolla's statement on the independent ground that admitting it would have violated Chastain's right to confront witnesses against him under the confrontation clause of the Sixth Amendment to the United States Constitution.
The confrontation clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him...." (U.S. Const., 6th Amend.) The confrontation clause bars only the admission of testimonial statements that fall within its scope. (Crawford v. Washington (2004) 541 U.S. 36, 53-54 (Crawford); Davis v. Washington (2006) 547 U.S. 813, 821 (Davis).) Further, because the confrontation clause applies to " 'witness[es] "against" ' " the accused, that constitutional provision is implicated only to the extent an out-of-court statement is "admitted 'against' the defendant." (People v. Lewis (2008) 43 Cal.4th 415, 506.)
The issue of whether a statement is offered against a defendant for the purposes of the confrontation clause commonly arises in the situation addressed by the Aranda-Bruton line of cases (People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123, 126-137), in which one defendant's confession or inculpatory statement that is offered in a joint trial as evidence against him by the prosecution also includes evidence that is inculpatory of a codefendant. If such a statement is properly redacted to remove reference to the codefendant and a limiting instruction is given, the statement may be admitted in a joint trial without violating the codefendant's right to confrontation, as it is not considered to be offered against the codefendant within the meaning of the confrontation clause. (Richardson v. Marsh (1987) 481 U.S. 200, 211; Gray v. Maryland (1998) 523 U.S. 185, 196.)
Herrera contends that Chastain's confrontation clause rights were not implicated for two independent reasons: (1) Chagolla's statement was not offered against Chastain; and (2) the statement was not testimonial. In supplemental briefing filed pursuant to our request, the Attorney General agrees with Herrera on the first point, and concedes that the trial court erred in excluding the evidence on confrontation clause grounds. The Attorney General's brief states that "[t]he trial court here incorrectly determined that admission of Chagolla's statement would violate... Chastain's confrontation rights" because "Chagolla was not a witness against... Chastain." As we will explain, we agree.
When a statement "contain[s] no evidence against defendant, " it "cannot implicate the confrontation clause." (People v. Stevens (2007) 41 Cal.4th 182, 199, italics added.) Here, Chagolla's statement contained no evidence against Chastain because (1) it did not identify Chastain as the person Chagolla referred to as the "little homey"; and (2) even if Chastain was the "little homey, " it contains no inculpatory information as to him. Further, regardless of who the "little homey" was, the statement is exculpatory of him, not inculpatory. According to Chagolla, the "little homey" did not participate in the shooting and did not pull a gun. Indeed, when Chagolla became violent, the "little homey" stated " 'what the hell, what are you doing?' " and then ran out of the front door and ducked in the backseat of the car.
We therefore conclude that the trial court erred in excluding evidence of Chagolla's statement on the ground that its admission would violate Chastain's right to confrontation.
Because we conclude that the confrontation clause is inapplicable on the ground that Chagolla's statement was not offered against Chastain, we do not and need not decide whether the statement was testimonial within the meaning of Crawford, supra, 541 U.S. 36, and Davis, supra, 547 U.S. 813.
3. The Trial Court's Error in Excluding Evidence of Chagolla's Statement Was Prejudicial
Having determined that the trial court erred in excluding evidence of Chagolla's statement, we next consider whether the error was prejudicial.
a. The Watson Standard for Assessing Prejudice Is Applicable
As a threshold issue in our prejudice analysis, we determine which legal standard applies: the standard for federal constitutional error set forth in Chapman v. California (1967) 386 U.S. 18 or the standard for state law error set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
Although Herrera argues in his appellate briefing that the trial court violated his constitutional rights by refusing to admit Chagolla's statement, Herrera did not raise the constitutional arguments as a ground for admission of the statement. Accordingly, he has forfeited the right to raise them on appeal. (People v. Loker (2008) 44 Cal.4th 691, 729 [appellant's claim that the trial court was required to admit hearsay testimony during penalty phase was forfeited because constitutional grounds for admission were not raised at trial]; People v. Smithey (1999) 20 Cal.4th 936, 995 ["In seeking admission of [the witness's] testimony at trial, defendant did not contend that the federal Constitution compelled admission of this hearsay testimony, and he may not do so for the first time on appeal."].)
Further, although Herrera raised the constitutional arguments in his motion for a new trial, that untimely assertion of the constitutionally based argument did not preserve the issue for appeal. (People v. Lucas (1995) 12 Cal.4th 415, 462 [argument that hearsay evidence was admissible under Evid. Code, § 1230 as a declaration against interest, rather than on the constitutional grounds advanced during trial, "came too late" when raised in a motion for a new trial and thus was not preserved for appeal].) In the absence of federal constitutional error, the standard for assessing prejudice set forth in Watson, supra, 46 Cal.2d at page 836, applies here.
Herrera argues for the first time in his reply brief that trial counsel provided ineffective assistance by failing to argue for the admissibility of Chagolla's statement on constitutional grounds. However, we will not consider this argument because it was raised for the first time in the reply brief. (People v. Zamudio (2008) 43 Cal.4th 327, 353 [" 'Normally, a contention may not be raised for the first time in a reply brief.' "].)
b. An Outcome More Favorable to Herrera Is Reasonably Probable Had the Trial Court Admitted Chagolla's Statement
The applicable inquiry under Watson is whether it is reasonably probable that Herrera would have obtained a more favorable result had the trial court admitted Chagolla's statement. (Watson, supra, 46 Cal.2d at p. 836.) As we will explain, because of the relative weakness of the witness identifications of Herrera and evidence lending credibility to Chagolla's statement, it is reasonably probable that Herrera would have obtained a more favorable outcome if evidence of Chagolla's statement had been admitted at trial.
Initially, we note that no physical evidence tied Herrera to the shooting. Accordingly, the jury was required to rely solely on the testimony of two witnesses -Peron and Davis - to conclude that Herrera was the person who shot Van Gestal.
The identifications made by both Davis and Peron were relatively weak. With respect to the identification made by Davis, (1) she was not able to initially identify Herrera in a photographic lineup; (2) she admitted that she was under the influence of drugs at the time of the shooting incident; and (3) Herrera's face was obscured by the hood for much of the incident. With respect to the identification made by Peron, his identification of Herrera was weak because (1) Peron told the police detective that Herrera had a large tribal tattoo on the top of his head, but no tattoo was present on Herrera's head at trial; and (2) after first identifying Herrera as the perpetrator, Peron told an investigator that he mistakenly accused Herrera and that he had developed doubts about his identification when someone told him that the person who committed the crime looked just like Herrera. Moreover, we know that the weakness of Peron's identification raised questions for a least one juror because that juror sent a note to the trial court during trial after hearing Peron's testimony. The note posed the following questions: (1) "Did [Herrera] ever have a tattoo removed between October 2002 to present?" and (2) "If Elizabeth (Lisa) is called to testify, did she know anyone with a tattoo that Mr. Peron described, that he could have mistaken as [Herrera]?"
The court instructed the juror at the beginning of trial, "If during the trial, you have a question that you believe should be asked of a witness, you may write out the question, send a note to me through the bailiff. I'll discuss it with the attorneys and decide whether it can be asked."
"Elizabeth (Lisa)" apparently refers to Lisa Arellano.
Further, it was plausible, given the other evidence at trial, that Chagolla was the shooter instead of Herrera. Peron testified that the shooter had a large tattoo on his head. The jury saw for itself that Herrera does not have such a tattoo, and through the private investigator who recorded Chagolla's statement, the jury would have heard evidence that Chagolla has a tattoo that goes all the way around his head. Significantly too, the description of the shooting given by Chagolla was reasonably consistent with the shooting as described by the witnesses, with the exception of Chagolla's claim that Van Gestal pulled a gun. However, the jury could have explained this discrepancy either by reasoning (1) that Chagolla was trying to minimize his culpability; or (2) that the witnesses to the shooting, for their own reasons, omitted the fact that Van Gestal had a gun. In light of these considerations, it is quite probable that when faced with Chagolla's confession, at least one juror would not have been able to conclude beyond a reasonable doubt that it was Herrera, rather than Chagolla, who committed the crime.
The private investigator's observation of Chagolla's appearance is documented in a report that he prepared describing his investigation, which appears in the record as an exhibit to a pretrial motion filed by Herrera. We note that the jury viewed Chagolla's tattoo for itself when he testified, but after Chagolla invoked his right not to testify, the jury was instructed to disregard his presence at trial.
We therefore conclude that it is reasonably probable Herrera would have received a more favorable outcome at trial had the trial court admitted evidence of Chagolla's statement. The trial court's error in excluding evidence of Chagolla's statement therefore constitutes reversible error.
B. Chastain's Contention That He Was Identified in an Unduly Suggestive Lineup
We now turn to Chastain's arguments for reversal. We first consider Chastain's contention that the trial court prejudicially erred by admitting evidence that a police officer who viewed Chastain in jail identified him as the suspect who ran from him into the backyard where police found the gun that fired the.32 caliber bullet located at the scene of Van Gestal's murder. According to Chastain, the evidence should have been suppressed because it was the product of an unduly suggestive lineup procedure and his attorney was not present.
Preliminarily, we set forth the pertinent facts as described by Deputy Paul Jacome at a pretrial hearing on Chastain's motion to exclude the evidence.
Deputy Jacome testified that at approximately 1:00 a.m. on October 24, 2002, while on patrol with a partner, Deputy Don Campas, he noticed a man walking down the sidewalk. Deputy Jacome could see the man's face, clothes and hairstyle at a distance of 20 or 30 feet, as a streetlight was shining on him. The man ran from the officers and into a backyard. Although Deputy Campas chased the man on foot, he did not apprehend him. In the backyard that the man ran into, the officers found a.32 caliber handgun. They also found a stolen vehicle containing rounds of ammunition.
Deputy Jacome sought to locate the man who ran from them so that he could investigate the firearm, the stolen car and the rounds of ammunition. The owner of the stolen vehicle told Deputy Jacome that Chastain might have taken her car. Using law enforcement databases, Deputy Jacome determined that Chastain was in jail.
Deputy Jacome went to the jail on October 30 and asked to see Chastain. As Deputy Jacome described his actions, "I located the subject and [it] showed that he was currently in custody at the Central Detention Center. So what I did further, I went to the jail, asked to see the subject to identify, and made contact with him to prove that he was Ernest Chastain." When Chastain was brought out to a holding cell, Deputy Jacome recognized that he was the man who ran from him on October 24.
Before going to the jail, Deputy Jacome learned from Detective Michael Gilliam, who was investigating the Van Gestal murder, that Chastain had been arraigned on murder charges on October 29, and that the gun found in the backyard was somehow tied to the murder. The record does not indicate how Detective Gilliam got into contact with Deputy Jacome. At some point, Deputy Jacome reported his identification of Chastain to Detective Gilliam.
The evidence at trial was that the gun found in the backyard was determined through testing to be the gun that fired the. 32 caliber bullet found at Van Gestal's murder scene.
As the basis for the motion to exclude the evidence, defense counsel argued that Deputy Jacome went to the jail to make the identification of Chastain as part of the murder investigation. The trial court rejected that interpretation of the facts. The court stated, "I'm frankly inclined to believe the officer's testimony, that he says, look, I was there investigating my auto theft case, possession of a gun, whatever, not the murder.... [T]here's nothing that this officer testified to before the court that would suggest that this was some kind of a ruse to actually link [Chastain] to the murder."
In his reply brief, Chastain inaccurately describes the facts relating to Deputy Jacome's identification of Chastain. According to Chastain's reply brief, Deputy Jacome's "purpose in going to the jail was to see if the man suspected of this murder had run away from the police on the night of the murder. This would assist in the murder investigation because the man who ran from the police tossed aside a gun." In fact, the incident in which Chastain ran from police was not on the night of the October 18 murder, but was several days later on October 24. Further, the trial court found that Deputy Jacome went to identify Chastain because of his own investigation of the incident that occurred on October 24, not because of the murder investigation.
The trial court concluded that the identification procedure was not unduly suggestive. The court explained, "I'm not inclined to find that the identification was unduly suggestive based on this testimony anymore so than if the officer had said, well, I got this name, I'm going to go pull a driver's license picture and see if it's him.... It's just an investigation.... It's not a different inquiry at least [in] kind, th[a]n pull[ing] your driver's license photo or an old mug shot, which happens all the time and which is a routine part of any investigation." The trial court stated that "this is really just analogous to and a part of a routine investigation by law enforcement." The trial court also concluded that Chastain did not have a right to have counsel present during the identification procedure because the identification was made as part of a routine law enforcement investigation.
1. The Trial Court Properly Rejected the Argument That the Identification Was Unduly Suggestive
We first consider whether the trial court erred in admitting Deputy Jacome's identification of Chastain. We apply a deferential review of the trial court's factual findings and credibility determinations, but we otherwise apply an independent standard of review. (People v. Kennedy (2005) 36 Cal.4th 595, 609 (Kennedy).)
Under established law, a witness identification procedure will violate the due process clause if the state initiates an unduly suggestive procedure " 'which suggests in advance of identification by the witness the identity of the person suspected by the police.' " (People v. Ochoa (1998) 19 Cal.4th 353, 413.) The defendant bears the burden of showing an unreliable identification procedure. (Ibid.) "In order to determine whether the admission of identification evidence violates a defendant's right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness's degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification." (People v. Cunningham (2001) 25 Cal.4th 926, 989.) If a court concludes that a challenged procedure is not unduly suggestive, it need not consider whether the identification was nevertheless reliable. (Ochoa, at p. 412.)
Chastain contends that the procedure by which Deputy Jacome identified him in jail was unduly suggestive because it was a single person identification procedure in prison while Chastain was handcuffed and in a prison jumpsuit, and Deputy Jacome made the identification "knowing [Deputy] Campas found a gun along the path [Chastain] had run, and [Chastain] had been arrested for the shooting death of Mr. Van Gestal."
The threshold question, as Chastain recognizes, is whether Deputy Jacome participated in a witness identification procedure, and thus whether the case law disapproving unduly suggestive identification procedures as a violation of due process is even applicable here. Without citation to any authority, Chastain contends simply that "[i]t qualified as an identification procedure, " presumably because Deputy Jacome purportedly "went to the jail to identify [Chastain] as part of Detective Gilliam's murder investigation." In response, also citing no authority, the Attorney General argues that Deputy Jacome made the identification while "investigating a crime in the course of his duties as a police officer, " and thus, "[a]s such, it did not constitute an identification procedure with the same standards as when a witness views a suspected criminal...."
We agree with the Attorney General that Deputy Jacome did not take part in a procedure governed by the case law prohibiting unduly suggestive witness identification procedures. As the trial court found, Deputy Jacome went to the jail to locate Chastain as part of his own investigation. Under our deferential review of the trial court's factual findings and credibility determinations (Kennedy, supra, 36 Cal.4th at p. 609), we find no reason to disturb the trial court's finding that Deputy Jacome went to the jail as part of his own investigation, not as part of the murder investigation. Therefore, there is no factual support for Chastain's argument.
In addition, courts sensibly point out that when a law enforcement officer views a suspect for the purposes of that officer's own investigation, the policy prohibiting unduly suggestive identification procedures cannot apply because an officer cannot unduly suggest something to himself. (State v. Manna (N.H. 1988) 539 A.2d 284, 287 ["[T]he police, when dealing with non-police witnesses, must not be permitted to unduly suggest who has perpetrated a crime, where identification is a key to the State's case.... Officer Casale could not be found through the photo identification process to have impermissibly suggested to himself the person [identified]. Accordingly, we hold that the identification procedure under these facts was not unnecessarily suggestive."]; Miles v. State (Ind.App., 2002) 764 N.E.2d 237, 240 ["Our supreme court has long held that the extrajudicial exhibition of a single photograph to a victim is an unduly suggestive identification procedure. [Citations.] While we agree with this principle, we find it inapplicable in this case, where Detective Gieselman is both the investigator and the witness to the offense."].) We agree with this approach and therefore conclude that Deputy Jacome was not participating in a pretrial witness identification procedure giving rise to due process concerns.
Even if we were to treat the process undertaken by Deputy Jacome as a witness identification procedure, we would conclude that it was not unduly suggestive. Chastain argues that the procedure was suggestive because (1) he was in jail, handcuffed and wearing an orange prison jumpsuit; and (2) Deputy Jacome knew Chastain had been arrested for murder. We agree that those facts may have created an unduly suggestive procedure if the witness was a layperson being asked to view a suspect in a single-person stationhouse showup. However, a crucial distinguishing fact is that Deputy Jacome was an experienced and trained law enforcement officer. He was therefore accustomed to seeing handcuffed suspects in jail, and would not be unduly influenced as would a lay witness. A similar point was made by a federal appellate court in rejecting the argument that a stationhouse identification by law enforcement officials in the course of their own investigation should have been suppressed as unduly suggestive. (See United States v. Sanders (8th Cir. 1976) 547 F.2d 1037, 1040-1041 (Sanders) ["In this case, three of the witnesses were agents of the Federal Bureau of Investigation. The fourth was a trained security officer with five years of experience as a security manager at United Parcel Service. These are not inexperienced lay witnesses who might be expected to infer from the stationhouse showup that the arresting officers believed they had the culprit, thereby influencing the witnesses' identification.... The officers were in the course of their investigation; they were looking for appellant, whose name and address they already had; and their purpose at the showup was to see whether appellant was in fact the person they saw at [the scene]" (fn. omitted)].) Under the circumstances, we conclude that, even assuming Deputy Jacome participated in a witness identification procedure, that procedure was not unduly suggestive.
Although we need not reach the issue because we find that the procedure was not unduly suggestive, we would also conclude that the identification was reliable under the totality of the circumstances. Deputy Jacome had a good opportunity to view Chastain on the night of the incident, as Chastain was facing him and he was illuminated by a streetlight. Further, Deputy Jacome's status as trained law enforcement official makes his identification more reliable. (Sanders, supra, 547 F.2d at p. 1041, fn. 6 ["The ability of a trained investigator to see and observe has been recognized as relevant in judging the reliability of his identification of a suspect. Particularly, this ability is a factor to consider in determining whether an in-court identification following an impermissibly suggestive identification procedure has a basis independent of the suggestive procedure."].)
We therefore reject Chastain's argument that the trial court violated his due process right by admitting the identification made by Deputy Jacome.
2. Chastain Did Not Have a Right to Counsel at the Identification Procedure
In his appellate brief, Chastain makes a cursory suggestion that his right to counsel under the Sixth Amendment to the United States Constitution was violated because he did not have counsel present when Deputy Jacome identified him in jail. We may disregard this argument, as it is not identified in any of Chastain's argument headings, Chastain makes no mention of it in his reply brief, and we are unsure whether he means to include it as a substantive argument. (See Cal. Rules of Court, rule 8.204(a)(1) ["Each brief must... [s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument...."]; Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46, 59 ["We may disregard arguments not properly presented under appropriate headings."].)
However, exercising our discretion to consider the argument, we reject it. "Under the Sixth Amendment to the United States Constitution, a defendant has a right to have counsel present at a live lineup held after criminal proceedings have commenced. (United States v. Wade (1967) 388 U.S. 218, 236-237; Gilbert v. California (1967) 388 U.S. 263, 272-273....)" (People v. Yokely (2010) 183 Cal.App.4th 1264, 1271-1272, italics added.) "[T]he right to counsel does not attach until a judicial criminal proceeding such as an indictment is initiated or a complaint is filed." (People v. Cook (2007) 40 Cal.4th 1334, 1353.)
The dispositive point here is that Deputy Jacome did not identify Chastain as a part of the investigation into Van Gestal's murder, but instead as part of his investigation into the events of October 24. The Sixth Amendment right to counsel is offense specific, with no "exception for crimes that are 'factually related' to a charged offense." (Texas v. Cobb (2001) 532 U.S. 162, 168.) Accordingly, because Chastain had not been charged with the crime that Deputy Jacome was investigating, the Sixth Amendment right to counsel did not apply to the identification procedure that Deputy Jacome undertook with respect to that crime, regardless of whether Chastain was already charged with a different crime at the time that Deputy Jacome identified him. (See State v. Broom (Ohio 1988) 533 N.E.2d 682, 700 [defendant did not have the right to counsel at a preindictment lineup for one crime even though he was in custody for a different crime]; State v. Strange (Tenn.Cr.App. 1989) 772 S.W.2d 440, 441 [6th Amend. right to have counsel present during a lineup did not attach as to that lineup "even though the accused [was] in custody on other charges and ha[d] counsel in those cases" (italics added)].)
C. Chastain's Contention That the Trial Court Erred by Instructing with CALCRIM No. 372
Chastain contends that the trial court erred in instructing the jury with CALCRIM No. 372. That instruction, as given by the trial court, provides:
"If the defendant fled immediately after the crime was committed after he was accused of committing the crime, that conduct may show he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself."
As given by the trial court, the instruction is missing the conjunction "or" between the phrases "immediately after the crime was committed" and "after he was accused of committing the crime, " which is in the version that appears in CALCRIM No. 372. As given by the trial court, the instruction, in literal terms, would apply only to those rare instances in which a defendant flees after both having just committed a crime and being accused of committing it.
As Chastain points out, the prosecutor indicated that he was requesting the instruction because there was evidence from which the jury could infer that Herrera fled to Nevada after the murder.
Although Chastain's appellate argument is somewhat unclear, he appears to be challenging the constitutionality of CALCRIM No. 372. According to Chastain, the instruction "unconstitutionally suggested that [Chastain] was guilty or that the trial court believed he was guilty." As we understand the argument, Chastain believes that CALCRIM No. 372 creates a suggestion of a defendant's guilt because it states that a defendant's flight "may show that he was aware of his guilt." (Ibid.) As Chastain explains, "[t]he overarching problem with this instruction is that [Chastain's] supposed awareness of his guilt could not exist unless he was, in fact, guilty." Chastain claims that therefore "CALCRIM No. 372 invaded the jury's province and lowered the prosecution's burden of proof, thus violating [Chastain's] constitutional rights to a jury trial and due process of law." According to Chastain, the prior instruction on a defendant's flight, which was set forth in CALJIC No. 2.52, did "not contain the problematic phrase 'aware of his guilt' " that appears in CALCRIM No. 372.
Chastain may also be intending to challenge the trial court's decision to instruct with CALCRIM No. 372 because that instruction purportedly applied, as a factual matter, to Herrera and not Chastain, and the trial court should have given an instruction directing it only to Herrera. If this is Chastain's argument, it lacks merit. "In general, a flight instruction 'is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.' [Citations.] Flight requires ' "a purpose to avoid being observed or arrested." ' " (People v. Avila (2009) 46 Cal.4th 680, 710.) Sufficient evidence in the record would allow the jury to conclude that Chastain fled after the murder to avoid being observed or arrested, including the fact that he left immediately after the shooting, and he ran from police on October 24.
CALJIC No. 2.52 stated that flight "is not sufficient in itself to establish... guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide." As Chastain acknowledges, our Supreme Court rejected the argument that CALJIC No. 2.52 is unconstitutional on the ground that the permissive inference it allowed the jury to make violated a defendant's right to due process or relieved the prosecution of the burden to prove the defendant's guilt beyond a reasonable doubt. (People v. Mendoza (2000) 24 Cal.4th 130, 180-181 (Mendoza).)
"On review, we examine the jury instructions as a whole, in light of the trial record, to determine whether it is reasonably likely the jury understood the challenged instruction in a way that undermined the presumption of innocence or tended to relieve the prosecution of the burden to prove defendant's guilt beyond a reasonable doubt." (People v. Paysinger (2009) 174 Cal.App.4th 26, 30.)
The same argument made by Chastain regarding the unconstitutionality of CALCRIM No. 372 has already been considered and rejected by case law. The court in People v. Hernández Ríos (2007) 151 Cal.App.4th 1154 rejected the defendant's argument that due to the fact that CALCRIM No. 372 contains the phrase "aware of his guilt, " it "impermissibly presumes the existence of his guilt and lowers the prosecution's burden of proof." (Hernández Ríos, at p. 1158.) We agree with the conclusion of Hernández Ríos. The text of CALCRIM No. 372 does not impermissibly suggest that the defendant is guilty. Instead, like CALJIC No. 2.52, the only reading of the instruction that would occur to any reasonable juror familiar with the English language is that it allows the juror to infer a defendant's consciousness of guilt from the defendant's flight if the facts warrant such an inference. The instruction, read as a whole, does not state that the defendant is guilty. Accordingly, like CALJIC No. 2.52, it neither violates a defendant's right to due process nor impermissibly lower's the prosecution's burden of proof.
D. Chastain's Contention That the Trial Court Erred in Not Giving an Instruction on Voluntary Manslaughter
We next consider Chastain's contention that the trial court erred by refusing his request to give an instruction on voluntary manslaughter.
" '[A] defendant has a constitutional right to have the jury determine every material issue presented by the evidence [and]... an erroneous failure to instruct on a lesser included offense constitutes a denial of that right....' " (People v. Haley (2004) 34 Cal.4th 283, 312.) "[A] trial judge need not instruct the jury as to all lesser included offenses, just those that find substantial support in the evidence. [Citation.] ' "Substantial evidence" in this context is " 'evidence from which a jury composed of reasonable [persons] could... conclude[]' " that the lesser offense, but not the greater, was committed.' " (Ibid.) Because substantial evidence is required, "the existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense." (People v. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).) "Speculation is insufficient to require the giving of an instruction on a lesser included offense." (Mendoza, supra, 24 Cal.4th at p. 174.)
" ' "On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense." ' " (People v. Verdugo (2010) 50 Cal.4th 263, 293 (Verdugo).)
Voluntary manslaughter is "the unlawful killing of a human being without malice" committed "upon a sudden quarrel or heat of passion" (§ 192, subd. (a)), and is a lesser included offense of intentional murder. (Breverman, supra, 19 Cal.4th at p. 154.) "Malice is presumptively absent when [(1)] the defendant acts upon a sudden quarrel or heat of passion on sufficient provocation ... or [(2)] kills in the unreasonable, but good faith, belief that deadly force is necessary in self-defense.... Only these circumstances negate malice when a defendant intends to kill." (People v. Lee (1999) 20 Cal.4th 47, 59, italics added, citations omitted.) Chastain contends that sufficient evidence existed to support a voluntary manslaughter instruction on either of these theories. We examine each theory in turn.
1. Substantial Evidence Does Not Support a Voluntary Manslaughter Instruction on a Theory of Imperfect Self-defense
"When the defendant killed in the actual but unreasonable belief that he or she was in imminent danger of death or great bodily injury, this is termed 'imperfect self-defense, ' and the killing is reduced from murder to voluntary manslaughter." (People v. Lewis (2001) 25 Cal.4th 610, 645.) " 'Fear of future harm - no matter how great the fear and no matter how great the likelihood of the harm - will not suffice. The defendant's fear must be of imminent danger to life or great bodily injury.' " (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) The need to instruct on imperfect self-defense "arises only when there is substantial evidence that the defendant killed in unreasonable self-defense, not when the evidence is 'minimal and insubstantial.' " (People v. Barton (1995) 12 Cal.4th 186, 201, fn. omitted.)
Chastain contends that the evidence supported a finding that the shooting was committed in imperfect self-defense because there was sufficient evidence presented at trial that Van Gestal was armed. Specifically, Chastain argues that the evidence supports a finding that "when [Chastain and Herrera] pushed their way through the front door, they encountered Mr. Van Gestal armed with a gun, " and accordingly the jury "could have concluded that Mr. Herrera drew his gun because he believed he needed to defend himself against Mr. Van Gestal, " and "[t]he same could be said of [Chastain], to the extent the jury believed [he] was armed."
We disagree. Substantial evidence does not support a finding that Van Gestal drew a gun. None of the witnesses at trial testified that they saw Van Gestal with a gun during the incident. Further, although an expert witness testified that a single particle of gunshot residue was found on Van Gestal's hands, the expert explained that the presence of that particle could mean (1) the person discharged a firearm; (2) the person was in close proximity to someone who discharged a firearm; or (3) the person touched something that had particles from gunshot residue on it. The expert also explained that tests have established that in a closed environment, when a gun is fired, particles of gunshot residue will be found at a distance of 20 to 25 feet away from the gun.
We have discussed above that Chagolla's statement was trustworthy, in part, because the physical evidence does not preclude a finding that Van Gestal had a gun. However, as we explained during that discussion, due to the absence of any witness testimony that Van Gestal had a gun, the record does not contain substantial evidence to support such a finding. We note that had Chagolla's statement been admitted, there would have been a much stronger argument for giving a voluntary manslaughter instruction on the theory of imperfect self-defense.
Because the particle of gunshot residue on Van Gestal's hands could have come from the two guns that were fired in the house, and no witnesses saw a gun in Van Gestal's hands, Chastain's theory of imperfect self-defense does not find substantial support in the evidence, and the trial court accordingly did not err in refusing the instruction on the theory of imperfect self-defense.
2. Substantial Evidence Does Not Support a Voluntary Manslaughter Instruction on a Theory of Sufficient Provocation to Act in the Heat of Passion
We next consider whether a voluntary manslaughter instruction was warranted under the theory that the shooting was committed in the heat of passion under sufficient provocation. " ' "[T]he factor which distinguishes the 'heat of passion' form of voluntary manslaughter from murder is provocation." [Citations.] "The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim." [Citation.] "[T]he victim must taunt the defendant or otherwise initiate the provocation." [Citations.] The " 'heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances....' " ' " (Verdugo, supra, 50 Cal.4th at p. 293.)
Chastain's argument that the evidence supports a finding that the shooting was committed in the heat of passion under sufficient provocation is simply a recasting of his argument regarding imperfect self-defense. Chastain argues that sufficient provocation for the shooting existed because he went with Herrera to the Elm Street house under the impression that Peron would sell drugs to them, but "[w]hen they entered the house, Mr. Van Gestal was armed and Mr. Peron ran to get his own gun. This provoked Mr. Herrera to react rashly and start shooting." The argument fails because, as we have explained, the record does not contain sufficient evidence that Van Gestal was armed. Further, the record contains no evidence that Herrera and Chastain were aware that Peron was running to get a gun.
E. Herrera and Chastain's Contention That Their Rights to Due Process and a Fair Trial Were Violated Because the Trial Court Did Not Release Juror Contact Information
We next consider an argument made by Herrera, and joined by Chastain, that their rights to due process and a fair trial were violated when the trial court denied defense counsel's motion for release of juror contact information after jurors indicated that they did not want their information released.
The request for juror contact information arose several months after the verdict, when Herrera brought a motion for a new trial on several grounds, including juror misconduct. In support of the motion, Herrera sought to obtain the jurors' names, addresses and telephone numbers for the purpose of investigating possible juror misconduct. Chastain joined the motion. Declarations submitted in support of the request for juror information stated that defense counsel spoke with two jurors immediately after the verdict. Among other things, one juror stated that she had discussed the case at home, possibly with other jurors over the telephone. The declarations also described other things the jurors said about the reasons for their verdict, such as sympathy for the victims, their view of the defendants' character, and distaste for certain comments made by defense counsel.
At the hearing on motion for release of the juror information, the trial court commented that "[t]he only allegation which could rise to the level of juror misconduct that could be established by admissible competent evidence, would be the allegation that the jurors discussed the case at home and discussed the case with each other over the telephone." The trial court ruled that the declarations describing the jurors' statements were hearsay, but it would order the jury commissioner "to contact the jurors and see if they want to talk to the defense attorneys, to allow [them] to investigate the limited question of whether or not the jurors committed misconduct by discussing the case with each other."
Approximately a month later at the continued hearing on the motion for a new trial, the trial court informed counsel that the jury commissioner was able to contact 11 of the 12 jurors, and that the remaining juror had moved with no forwarding information. The unanimous response from the jurors was, as described by the trial court, that "they did not want their personal [contact] information disclosed." The trial court therefore did not release the information, and it denied the motion for a new trial.
Code of Civil Procedure section 237 governs the disclosure of juror contact information. In relevant part it provides:
"(a)(2) Upon the recording of a jury's verdict in a criminal jury proceeding, the court's record of personal juror identifying information of trial jurors... consisting of names, addresses, and telephone numbers, shall be sealed until further order of the court as provided by this section. [¶]... [¶]
"(b) Any person may petition the court for access to these records.... The court shall set the matter for hearing if the petition and supporting declaration establish a prima facie showing of good cause for the release of the personal juror identifying information....
"(c) If a hearing is set pursuant to subdivision (b), the petitioner shall provide notice of the petition and the time and place of the hearing at least 20 days prior to the date of the hearing to the parties in the criminal action. The court shall provide notice to each affected former juror by personal service or by first-class mail, addressed to the last known address of the former juror as shown in the records of the court.... Any affected former juror may appear in person, in writing, by telephone, or by counsel to protest the granting of the petition....
"(d) After the hearing, the records shall be made available as requested in the petition, unless a former juror's protest to the granting of the petition is sustained. The court shall sustain the protest of the former juror if, in the discretion of the court, the petitioner fails to show good cause, the record establishes the presence of a compelling interest against disclosure as defined in subdivision (b), or the juror is unwilling to be contacted by the petitioner. The court shall set forth reasons and make express findings to support the granting or denying of the petition to disclose...." (Code. Civ. Proc., § 237, italics added.)
Code of Civil Procedure section 206 provides that after the jury is discharged, the judge shall inform the jurors they have an "absolute right to discuss or not to discuss the deliberation or verdict with anyone." (Code Civ. Proc., § 206, subd. (a).) Code of Civil Procedure section 206 also clarifies that a motion brought under Code of Civil Procedure section 237 is the proper vehicle for seeking juror information to develop information in support of a motion for a new trial. (Code. Civ. Proc., § 206, subd. (g) ["Pursuant to [Code of Civil Procedure s]ection 237, a defendant or defendant's counsel may, following the recording of a jury's verdict in a criminal proceeding, petition the court for access to personal juror identifying information within the court's records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose.... The court shall consider all requests for personal juror identifying information pursuant to [Code of Civil Procedure s]ection 237."].) The Legislature enacted Code of Civil Procedure sections 206 and 237 "to maximize juror privacy and safety, while retaining a criminal defendant's ability to contact jurors after the trial if sufficient need is shown." (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1087 (Townsel).)
Herrera and Chastain contend that the provision of Code of Civil Procedure section 237, subdivision (d), prohibiting the release of juror information if a juror is unwilling to be contacted, "overstep[s] constitutional bounds" and that "access to the jurors is essential to protect [his] rights to a fair trial and a verdict untainted by jury misconduct." Specifically, they argue that the statute is unconstitutional because it "effectively ma[kes] the jurors, not the court, the sole arbiters of whether the defendant would be permitted access to juror information." According to Herrera and Chastain, Code of Civil Procedure section 237 would be constitutional only if it allowed a court in each instance to balance a criminal defendant's need for juror contact information with a juror's right to privacy, instead of "permitting jurors to exercise absolute veto power over a request for juror information."
We note that neither Herrera nor Chastain challenged the constitutionality of Code of Civil Procedure section 237 in the trial court, but the Attorney General does not argue that the issue is forfeited on appeal, and we therefore do not consider forfeiture of Herrera and Chastain's constitutional objection to the statute.
We reject the argument that Code of Civil Procedure section 237 is unconstitutional. Our Supreme Court has stated that "[a] criminal defendant has neither a guaranty of posttrial access to jurors nor a right to question them about their guilt or penalty verdict." (People v. Cox (1991) 53 Cal.3d 618, 698-699 (Cox); accord Townsel, supra, 20 Cal.4th at p. 1092; see also Code Civ. Proc., § 206, subd. (a) [court must inform jurors they have absolute right to discuss or not discuss deliberations or verdict].) Even if the defendant makes a showing of good cause and the court discloses identifying juror information, the jurors " 'retain a clear right to refuse to talk to counsel.' " (People v. Rhodes (1989) 212 Cal.App.3d 541, 552, fn. 6.) "If any juror refuses to consent [to an interview], that is the end of the matter." (Townsel, supra, 20 Cal.4th at p. 1097.)
"[S]trong public policies protect discharged jurors from improperly intrusive conduct in all cases, and... jurors in criminal cases, in particular, have 'an absolute right' not to discuss their verdict or deliberations with anyone." (In re Hamilton (1999) 20 Cal.4th 273, 303, fn. 23.) Thus, although a defendant has a constitutional right to a trial by impartial jurors, he has no constitutional postverdict right to force jurors to talk to him against their will, and it follows he has no constitutional right to disclosure of their identifying information for purposes of an interview. (Cox, supra, 53 Cal.3d at p. 701 ["since defendant enjoyed no right of access to the jurors, we find his reliance on the... right to... a fair jury trial as well as his reference to due process unconvincing in this context"].) Code of Civil Procedure sections 206 and 237 "describe a posttrial procedural right under state law" to obtain juror information under certain circumstances, not a constitutional one. (People v. Jefflo (1998) 63 Cal.App.4th 1314, 1323.)
Herrera and Chastain cite several cases in support of the argument that Code of Civil Procedure section 237 would be constitutional only if it required the court to balance a defendant's interest in access to information about possible juror misconduct with a juror's right to privacy. However, all of them are inapposite. (See Press-Enterprise Co. v. Superior Court of Cal. (1984) 464 U.S. 501 [trial court could not constitutionally exclude public from voir dire to protect jurors' privacy rights without considering alternatives to closure]; Lesher Communications, Inc. v. Superior Court (1990) 224 Cal.App.3d 774 [media is entitled to see juror questionnaires that are a part of voir dire process but only after appropriate precautions are taken to protect legitimate privacy concerns of potential jurors]; accord, Copley Press, Inc. v. Superior Court (1991) 228 Cal.App.3d 77; Contra Costa Newspapers, Inc. v. Superior Court (1998) 61 Cal.App.4th 862, 868 [trial court's blanket order prohibiting the "press" from contacting former jurors was without jurisdiction and impermissibly overbroad].) Although these cases discuss when privacy rights of jurors must give way to countervailing interests, none of them address the disclosure of postverdict juror contact information to parties. Indeed, in Contra Costa Newspapers, the court noted that a trial court may broadly proscribe contact between former jurors and parties and parties' representatives as opposed to contact by news media. (Contra Costa Newspapers v. Superior Court, supra, 61 Cal.App.4th at p. 867.)
Herrera also cites People v. Atkins (1988) 203 Cal.App.3d 15, in which, prior to the enactment of Code of Civil Procedure section 237, the court conducted a weighing of the "strong public interest in the ascertainment of the truth in judicial proceedings" against jurors' right to privacy, concluding that if the defendant had made a timely request (which he did not), he should have been provided with juror contact information to investigate possible juror misconduct. (Atkins, at pp. 27-28.) We do not find Atkins to be persuasive here because, as Code of Civil Procedure section 237 had not yet been enacted, it dealt with the threshold question of whether a defendant should be able to request juror contact information, not with the more specific issue presented here of whether a juror has the right to veto the release of that contact information after the defendant has been permitted by the court to make a request. Indeed, as Atkins acknowledged, jurors "retain a clear right to refuse to talk to counsel." (Atkins, at p. 27.)
We further note that when the Legislature amended Code of Civil Procedure sections 206 and 237 in 1995, it undertook to balance the competing interests involved in the disclosure decision, including the policy interest in giving criminal defendants the right to jury verdicts untainted by prejudicial misconduct or other error. In enacting these amendments, it said: " 'The Legislature finds and declares that jurors who have served on a criminal case to its conclusion have dutifully completed their civic duty. It is the intent of the Legislature in enacting this act to balance the interests in providing access to records of juror identifying information for a particular, identifiable purpose against the interests in protecting the jurors' privacy, safety, and well-being, as well as the interest in maintaining public confidence and willingness to participate in the jury system.' " (Historical and Statutory Notes, 13A West's Ann. Code Civ. Proc. (2006 ed.) foll. § 206, p. 199, italics added.) Because the statute itself is the product of a careful balancing and there is no constitutional right of access to jurors, there is no constitutional mandate that a trial court engage in a balancing process in each case.
Herrera also contends that the trial court erred because "the procedure followed in this case violated that plain language of the statute." Although his argument is not completely clear, Herrera's position appears to be that the statute states the trial court "shall sustain the protest of the former juror if... the juror is unwilling to be contacted by the petitioner"(Code Civ. Proc., § 237, subd. (d), italics added), but in this case the jurors indicated "they did not want their personal [contact] information disclosed." Herrera apparently contends that the trial court should only have sustained the objections if the jurors had indicated they did not want to be contacted. We reject this argument as overly technical. It is implicit within the objecting jurors' responses that they did not want to be contacted by defense counsel. Further, by not raising the issue in the trial court, defense counsel forfeited any appellate argument that the trial court failed to follow the plain language of the statute. (People v. Stowell (2003) 31 Cal.4th 1107, 1114.)
DISPOSITION
The judgment as to Chastain is affirmed. The judgment as to Herrera is reversed.
WE CONCUR: McCONNELL, P. J. NARES, J.