Opinion
C083532
06-28-2018
THE PEOPLE, Plaintiff and Respondent, v. RYAN PATRICK DAVIS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. CM040046, CM040502)
Defendant Ryan Patrick Davis was convicted following a jury trial of first degree burglary and attempted robbery, among other charges. On appeal, he contends (1) the trial court erred in denying his motion to sever the burglary and attempted robbery counts, resulting in a denial of his due process rights, (2) the trial court made prejudicially erroneous evidentiary rulings, (3) the trial court committed various instructional errors, (4) there was a prejudicial discovery violation, and (5) the prosecutor committed misconduct. We will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Burglary
On August 14, 2013, at about 11:30 p.m. a sheriff's deputy responded to a call about a suspicious vehicle and a suspicious man wearing a red shirt and possibly burglarizing a residence. When the deputy arrived, he discovered that the caller was actually its resident, Donald L. There was an older small blue pickup truck backed into the driveway, and there were several items in the truck bed. A search of the truck revealed prescription bottles bearing defendant's name, pawn slips bearing the name of another individual (whose mother was the registered owner of the truck), mail and other paperwork bearing defendant's name, and drug paraphernalia. Donald L. denied knowing defendant.
In inspecting the house, the deputy noted that a window appeared to have been broken and forced open, and bore several fingerprints and handprints. The deputy additionally noted there was a large screwdriver on the ground next to the window and determined it appeared to have been used to pry the window. Donald L. denied that the screwdriver was his. Of the several sets of latent prints officers lifted from the exterior of the window, all the identifiable impressions matched defendant's fingerprints and palm prints. No prints were lifted from the interior side of the window.
Inside the house, the deputy and Donald L. found a garbage can and laundry basket that had been loaded with Donald L.'s possessions and placed near the front entry of the residence. Among the items were vehicle speakers, a laptop computer, power tools, chainsaws, an air compressor, and various personal items. Donald L. denied having filled the can or basket with his possessions, and he believed someone was preparing to steal his property.
Donald L. had been arrested a couple of days earlier after law enforcement had raided and searched his house. He had spent the prior two days in jail and had just returned to the house the night of August 14. When he returned home, he noticed the pickup—which he did not recognize—backed into his driveway. He tried to enter the house through the front door, but he could not enter because the screen door dead bolt was locked from the inside. He did not have a key for the dead bolt, and neither did the woman he had living with him at the time. He ultimately gained entry by breaking the front window using a "tire iron type instrument." That's when he noticed his possessions boxed up near the front door, which is not where his things had been when he left two days earlier. He walked through the house and found that the back door was wide open.
Law enforcement subsequently learned that defendant's sister was in a relationship with Donald L., and that she had been living at the residence from time to time. She was not there when Donald L. returned home from jail, but he had not withdrawn permission for her to stay there. She came to see him the morning after he returned home. Donald L. also acknowledged that defendant had permission to stay with his sister at the house. Indeed, Donald L. had told defendant's sister that defendant could stay there for a few days right before Donald L. went to jail. However, Donald L. did not give defendant permission to break into his home or to take any of his belongings.
The Robbery and Assault
On the morning of October 30, 2013, a neighbor who lived behind Tyler D., heard a car door slam and, looking out the window, saw a white compact car "roaring" out of his driveway. The neighbor noticed some debris in his driveway that had not been there before, and, upon closer inspection, determined that it was potting soil and marijuana buds. Based on the orientation of the debris and the lingering odor, the neighbor surmised that someone had been stuffing something in their trunk, and when they closed the trunk it chopped the roots. He believed that the marijuana plants had been taken from Tyler D.'s property, so he called 911 to report the theft. After making that call, he saw that the trail of debris from his driveway led to the fence that separated his property from Tyler D.'s. At the time there was a four-foot-tall fence separating the properties. The neighbor then drove around to Tyler D.'s house and knocked on the door, waking him up.
The neighbor asked Tyler D. if he grew marijuana and told him he thought someone had stolen some plants from him. Tyler D. acknowledged that he had a license to grow and a marijuana garden. The neighbor reiterated that someone had taken some of the plants and had gone through his own property with whatever they had taken. Tyler D. called to report the theft of several marijuana plants from his medical marijuana grow. He also called a neighbor-friend (not the same one who had informed him of the theft) and told him someone had taken his plants.
As Tyler D. waited for the officers to arrive, his friend came and looked in the backyard. Tyler D. heard an alarm sound indicating someone was in the front yard, and, assuming it was the officers, he went to meet them. However, when he got to the front of the house, he did not see anyone. As he looked around, he saw feet under his car, and found there were two men crouched there. The men jumped out at Tyler D., ordered him in the house, and pointed a gun at him. Tyler D. recognized one of the men as someone who had expressed interest in purchasing a truck Tyler D. had listed for sale online, and said "Hey, I know you. I have your phone number." The man demanded Tyler D.'s phone, which Tyler D. refused to provide and threw to the ground. The men were both wearing hooded sweatshirts and glasses; one left to open the front door, but was rebuffed by three growling dogs, and the other (the man Tyler D. recognized) was walking behind Tyler D. with a semiautomatic gun in his hand and directed Tyler D. into the house. Tyler D. refused to enter the house, and the man with the gun poked or hit him in the cheek with some part of the gun or his fist, and the gun fell out of his hand. Tyler D. then escaped out into the street, and did not see where the men went. In the street, he saw a car approach, and told the occupant (another neighbor) that he was being robbed and to please call the police. The passenger directed the driver to drive, and Tyler D. called after him, "What are you doing? You're my friend. Where are you going?"
A man who identified himself as "Ryan" had texted Tyler D. in response to Tyler D.'s online advertisement to sell his truck. Initially, Tyler D. met Ryan at a nearby store to show him the truck, and later, when Ryan wanted to inspect the truck more, they met at Tyler D.'s house. Ryan wanted to buy the truck and told Tyler he was "going to go get money to buy it." Ryan left, called a day later, and came back again. At that time, Ryan offered to make a trade instead of payment because he was having trouble getting the money together. Tyler D. declined Ryan's offer to give Tyler D. marijuana in lieu of money because the marijuana was not fully cured and, as he told Ryan at the time, he had his own marijuana garden. At the time of the October 30, 2013 encounter, Tyler D. was certain defendant was the man who had identified himself as Ryan, but at trial he expressed that he had second thoughts over the course of the ensuing two years, and at the time of trial he could not say with "hundred percent" certainty that defendant was the man who robbed him.
In the meantime, the friend hearing Tyler D. yell from the front of the property that "they were back," began running toward where Tyler D. was, and heard Tyler D. say, "But you're my friend." When he made it to the front of the house, he saw someone still standing by Tyler D. and saw another person in a dark hooded sweatshirt running away and he began pursuit of that person.
The sheriff's deputy who responded noted that the initial call from Tyler D. about the theft of the marijuana plants came in about 9:45 a.m., and the second call about a robbery came in just after 10:00 a.m. The deputy responded after the second call. When he arrived, a neighbor told him there were two suspects, one who had run down the street, and the other who had run in an easterly direction toward the rear of the property. The deputy approached Tyler D.'s property, but initially stayed behind some shrubbery at the edge of the property to wait for other officers. While he was waiting, he "heard the distinct sound of metal on metal, which was significant because it was the sound of a semiautomatic pistol being charged." He then saw Tyler D. emerge from the driveway area, and not knowing who he was, the deputy pointed his gun at him. Tyler D. informed him he had just been robbed and that he had a pistol in his pocket. The deputy secured Tyler D. and the pistol, and noted that Tyler D. appeared "very wide-eyed, sweating profusely, very talkative, and kind of excited." The deputy also noticed that Tyler D. had redness the size of a half-dollar on his left cheek and a carbon-colored substance in the center of the redness near the cheekbone, which appeared to the deputy "to be a smudge or some kind of transfer that looked similar to what would be left over from a firearm that had been fired, or maybe after you clean a firearm you get the carbon on your hands or on your skin based on transfer from the firearm to the skin."
The deputy inspected the marijuana garden on Tyler D.'s property, and noted that there were "eight remnants of marijuana plants that were planted in the ground that had been clipped. Completely clipped just above the root ball. The tops of the plants were gone. And then it appeared there were at least one to two plants that had actually been pulled all the way out of the ground, and they were totally gone." The deputy viewed a text message chain on Tyler D.'s phone in which Tyler D. had been corresponding with the person he believed to be the robber. The phone number associated with the person Tyler D. was communicating with was the same phone number defendant provided to probation and at booking.
The neighbor returned home and began boxing up the trail of debris. As he approached the back fence separating his property from the neighbor's, he saw an unknown dark-haired man, who was wearing a hooded sweatshirt and dark clothes, wandering in Tyler D.'s backyard toward his property. The neighbor asked the man what he was doing and the man said he was trying to flee from some people who wanted to beat him up. The man asked if he could come through the neighbor's property, and the neighbor said he could not unless he told the neighbor his name. The man at first refused, but when the neighbor did not relent, the man told him his name was "Jason Stratton." The man then leapt the fence, ran through the neighbor's yard, and fled down the driveway in the same direction the car had gone earlier. The neighbor was later shown a photograph of Jason Stratton and confirmed it was not the same man he had seen that morning.
Another deputy spotted a white four-door vehicle, similar to the one described by the neighbor near defendant's house. That car was registered to Eric Silva. When shown a photo lineup including Eric Silva, Tyler D. had a "strong suspicion" he was the other man who robbed him but "he couldn't be positively for sure." In April 2014, an officer pulled over a white four-door vehicle driven by Eric Silva, with a female passenger, Marilu Sotelo (who was previously defendant's girlfriend), and in the car, the deputy found marijuana and a digital scale. Eric Silva and defendant were also known to socialize.
Procedural History
Based on the events of October 2013, defendant was charged in case No. CM040046 with attempted second degree robbery, assault with a semiautomatic firearm, possession of a firearm by a felon, and receiving stolen property. As to the robbery charge, it was also alleged defendant personally used a firearm in the commission of the offense, and as to the robbery and assault charges, it was alleged defendant had a prior strike. Defendant was separately charged in case No. CM040502, based on the events of August 2013, with first degree residential burglary, and as to that charge it was additionally alleged defendant had a prior strike and had served a prior prison term. The People moved to join the cases, which the trial court granted. Defendant later moved for separate trials, which was denied. (Additional facts regarding the motions to join and to sever the cases are discussed in pt. 1.1 of the Discussion, post.)
The consolidated information charged defendant with attempted second degree robbery (§ 664/211—count 1), assault with a semiautomatic firearm (§ 245, subd. (b)—count 2), possession of a firearm by a felon (§ 29800, subd. (a)(1)—count 3), and first degree residential burglary (§ 459—count 4). As to count 1, it was alleged defendant personally used a firearm pursuant to section 12022.53, subdivision (b). As to count 2, it was alleged defendant used a firearm pursuant to section 12022.5. As to all counts it was alleged defendant had a prior strike (§ 667, subds. (b)-(j)). Finally, as to counts 1, 2, and 4, it was alleged defendant had a prior serious felony conviction pursuant to section 667, subdivision (a)(1). The trial court bifurcated the allegations of a prior strike and prior serious felony conviction.
Undesignated statutory references are to the Penal Code.
The jury found defendant guilty of all four charged counts, and also found true the allegations that defendant had personally used a firearm in the commission of the attempted robbery and the assault. Defendant subsequently moved for a new trial, which the trial court denied. The trial court then sentenced defendant to a cumulative term of 21 years in state prison, comprised of the upper term of nine years for the assault with a semiautomatic firearm plus a consecutive term of 10 years for personal use of a firearm, a consecutive eight months for unlawful possession of a firearm, and a consecutive one year four months for burglary, and stayed execution of the sentence for attempted robbery pursuant to section 654.
DISCUSSION
Defendant raises several contentions challenging various rulings by the trial court in denying his motion to sever the cases, in admitting and excluding certain evidence, and in instructing the jury, and conduct by the prosecutor both pretrial and during closing arguments. We conclude defendant has failed to demonstrate prejudicial error by either the trial court or the prosecutor. Therefore, we will affirm the judgment.
1.0 Joinder and Denial of Motion to Sever
Defendant contends the trial court erred in joining the two cases and abused its discretion in denying his subsequent motion to sever them. He further contends that even if the trial court did not abuse its discretion, it violated his due process rights by failing to sever the cases. We conclude the trial court properly joined the cases, did not abuse its discretion in denying defendant's motion to sever the cases, and defendant has not demonstrated that the trial court's denial of his motion to sever violated his due process rights.
1.1 Additional Background
The People moved to join the two cases pursuant to section 954, which allows the court to consolidate cases where the offenses are " 'connected together in their commission' " or are offenses " 'of the same class of crimes' or . . . offenses." The People argued defendant's charged crimes of first degree burglary and attempted robbery were offenses of the same class of crimes, specifically that they were theft crimes. The People further argued that judicial economy would be best served by joinder. Nothing in the record indicates that defendant opposed the People's motion for joinder.
Subsequently, however, defendant moved to sever the two cases. Defendant argued the cases should be severed because one of the cases was substantially weaker than the other based on evidence heard in the preliminary examination. Specifically, because the owner of the home that was purportedly burgled in August 2013 testified that defendant had permission to be there, defendant asserted that jurors may find it difficult to find any burglary had occurred. He argued that the identification testimony of the victim of the assault and attempted robbery made that case substantially stronger, which made the joinder of the two cases prejudicial. He further argued that the lack of cross-admissible evidence made severance proper.
In its opposition to defendant's motion to sever, the People relied on the general preference for consolidation, and argued that it was proper to join the cases because both involve theft-related crimes of the same class. The People further asserted that both cases were strong, with fingerprint and other physical evidence connecting defendant with the burglary and a photo identification of defendant by the victim of the assault and attempted robbery. In rebuttal, defendant conceded that the crimes were of the same class, but argued that the assault and attempted robbery were "substantially more inflammatory" than most theft-related crimes would be.
The trial court denied defendant's motion to sever, stating as follows: "The burglary and robbery charges are properly joined because they were both theft related and theft motivated. The Defendant has failed to make a showing that there is a substantial danger of prejudice to him if these matters were to be tried together and that he would be denied a right to a fair trial if severance was not granted."
1.2 Analysis
We begin by determining whether the trial court properly joined the two cases. There is a legislative preference for consolidation because it promotes judicial efficiency. (People v. Landry (2016) 2 Cal.5th 52, 75 (Landry).) Section 954 permits "two or more different offenses of the same class of crimes" to be charged in the same accusatory pleading; however, the trial court may sever offenses or counts "in the interests of justice and for good cause shown." " 'Offenses of the same class are offenses which possess common characteristics or attributes.' " (Landry, supra, at p. 76.) Here, defendant's charged burglary (count 4) was joined with his charges for attempted robbery (count 1), assault with a semiautomatic firearm (count 2), and felonious possession of a firearm (count 3). Burglary and attempted robbery both fall within the same class of crimes: They are both considered theft crimes. (People v. Koontz (2002) 27 Cal.4th 1041, 1075 [offenses sharing the common characteristic of the wrongful taking of another's property fall within the same class]; People v. Biehler (1961) 198 Cal.App.2d 290, 293.) Therefore, we conclude the trial court properly joined the two cases under section 954.
We thus turn to defendant's contention that the trial court abused its discretion in failing to sever count 4 from counts 1 through 3. "When charges are properly joined, a ' " ' defendant must make a clear showing of prejudice to establish that the trial court abused its discretion in denying defendant's severance motion.' " [Citation.] That is, defendant must demonstrate the denial of his motion exceeded the bounds of reason.' [Citation.] ' "Refusal to sever may be an abuse of discretion where (1) evidence of the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a 'weak' case has been joined with a 'strong' case or with another 'weak' case, so that the 'spillover' effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case." ' [Citation.] Even if a defendant fails to demonstrate the trial court's joinder ruling was an abuse of discretion when it was made, reversal may nonetheless be required if the defendant can demonstrate that 'the joint trial resulted in such gross unfairness as to amount to a due process violation.' " (Landry, supra, 2 Cal.5th at p. 77.)
With respect to the first factor, defendant contends there was "no cross-admissible evidence," but he provides no further analysis of this factor. The People argue evidence was cross-admissible to establish motive and common plan. In his reply brief, defendant disputes this claim in an analysis erroneously conflating a finding that the crimes are of the same class with a finding that there is cross-admissible evidence of motive. While both may be considered as a basis for joinder, a finding of cross-admissibility "alone is normally sufficient to dispel any suggestion of prejudice and to justify a trial court's refusal to sever properly joined charges." (People v. Soper (2009) 45 Cal.4th 759, 774-775 (Soper).) But, as defendant acknowledges, a lack of cross-admissibility does not itself demonstrate the requisite prejudice to conclude a failure to order severance was an abuse of discretion. (Landry, supra, 2 Cal.5th at p. 78.) Here, while we agree it is questionable whether evidence in the cases would be cross-admissible, we conclude there is not a sufficient showing of prejudice when considering the other factors to merit a finding the trial court abused its discretion when denying his motion for severance.
As to the second factor, defendant contends there is inflammatory information associated with the charges based on the events of October 2013 that render joinder prejudicial. Namely, he focuses on the "inflammatory nature" of the attempted robbery, along with the admission of his prior felony conviction, warrant arrest, and probationer status (though he concedes no one actually testified he was on probation at the time). Here, none of the crimes alleged is particularly inflammatory: They amount to an opportunistic residential burglary, an attempted robbery that turned into an assault and with limited force involved, and possession of a firearm by a felon (involving the same gun used in the assault and robbery), and neither of the victims is particularly likely to draw the jury's sympathy. (See Soper, supra, 45 Cal.4th at p. 780 [where crimes are "similar in nature and equally egregious . . . , neither, when compared to the other, [is] likely to unduly inflame a jury against defendant"].) Neither is it unduly inflammatory or prejudicial for the jury to learn defendant had a prior felony where, as here, they did not learn the nature of the felony, and the firearm involved is the same one used in the commission of the other charged crimes. (People v. Cunningham (2001) 25 Cal.4th 926, 985 ["The count alleging that defendant possessed a firearm as an ex-felon is not unusually inflammatory or prejudicial."].) Additionally, the jury did not actually learn defendant was on probation at the time of the offense, and they only vaguely heard about the warrant arrest of September 2013 with respect to his phone number, and a reasonable juror would assume the warrant arrest of September 2013 was based on the other charged crime of the August 2013 burglary. Thus, we conclude none of the charged offenses was especially likely to inflame the jury.
Finally, with respect to the third relevant factor, defendant contends both cases are weak, but even if the attempted robbery is seen as stronger, its proof relied on the absent Mr. Silva. Defendant must show an "extreme disparity between weak and strong cases . . . in order to demonstrate the potential for prejudicial 'spillover' from one case to the other . . . ." (Belton v. Superior Court (1993) 19 Cal.App.4th 1279, 1284.) Here, there was no such disparity, and neither can we conclude that two weak cases were joined. While there was some reliance on circumstantial evidence in both cases, there were defendant's fingerprints, a broken window, a car with his personal information in it, and possessions ready to be loaded in Donald L.'s house to support a conviction for burglary. And, there was the, at least initially, emphatic identification of defendant by Tyler D. with physical evidence of assault, testimony of the responding deputies to support the use of a firearm, and Tyler D.'s and his neighbors' testimony of the events of the day to support the convictions for the other charged crimes. On this record, we cannot say these were particularly weak cases prejudicially joined together.
The fourth factor does not apply here because none of the charged offenses, tried singly or together, were capital crimes.
Thus, we conclude defendant has not demonstrated an abuse of discretion by the trial court in denying his motion to sever.
1.3 Due Process
Defendant makes the additional argument that, even if he did not show that it was an abuse of discretion to deny his motion to sever at the time it was made, the joinder ultimately violated his due process rights, thereby warranting reversal. We are not persuaded.
Denial of severance that is not an abuse of discretion can be reversed only if the defendant shows the joinder actually resulted in gross unfairness amounting to a denial of due process. (People v. Cook (2006) 39 Cal.4th 566, 581; People v. Mendoza (2000) 24 Cal.4th 130, 162 (Mendoza).) To meet this burden, defendant must show prejudice by "demonstrat[ing] a reasonable probability that the joinder affected the jury's verdicts." (People v. Grant (2003) 113 Cal.App.4th 579, 588.) We look at the evidence actually introduced at trial to determine whether gross unfairness occurred. (People v. Bean (1988) 46 Cal.3d 919, 940; Williams v. Superior Court (1984) 36 Cal.3d 441, 453 [the principal concern in joinder is that the jury would aggregate all of the evidence and convict the defendant on both crimes in a joint trial].)
In support of his due process contention, defendant points to admission of evidence of (1) the attempted robbery—which he claims would otherwise be inadmissible to defendant's burglary charge, as would knowledge of defendant's prior felony conviction; and (2) the testimony of the jail booking officer and probation officer regarding his telephone number, which showed defendant was arrested and was familiar with a probation officer. He further asserts that instructional error exacerbated the prejudice resulting from the joinder because the trial court neither instructed the jurors to consider evidence relating to the robbery case as to counts 1 through 3 alone, nor did it instruct the jurors on the limited purpose for the evidence about Silva. He claims no limiting instruction could have cured "the prejudice [that] accrued from joinder and the Silva/Sotelo evidence
With respect to the trial court's failure to provide a limiting instruction sua sponte, where, as here, the consolidated offenses were factually separable with the two sets of crimes involving separate locations and separate victims, there is minimal risk that the jury would be confused or would use commission of one crime as evidence of commission of another joined crime. (See Mendoza, supra, 24 Cal.4th at p. 163.) Additionally, knowledge by the jury that defendant has a felony conviction, without knowing what that offense was or when it was committed; knowing there was a warrant for his arrest that is presumably related to his other charged crime; and knowing he at one time gave a phone number to a probation employee is not enough to show a reasonable probability the jury aggregated the evidence to convict defendant of the charged crimes. This is especially true here where there is physical evidence to connect defendant with the burglary and an eyewitness identification and phone communication to tie him to the assault and robbery. In light of this record, we conclude defendant has not shown the joinder resulted in gross unfairness that amounted to a violation of his due process rights.
2.0 Evidentiary Rulings
Defendant claims there were various erroneous evidentiary rulings by the trial court. All of these claims appear to be premised on an assertion that the trial court should have excluded or permitted admission of evidence pursuant to Evidence Code section 352. However, we conclude defendant has failed to present cognizable arguments as to how the identified rulings were erroneous or prejudicial to him.
2.1 Standard of Review
Evidence Code section 352 provides, in pertinent part, that "The Court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice . . . ." We review the trial court's decision to admit or exclude evidence pursuant to this section under the familiar abuse of discretion standard. (People v. Holford (2012) 203 Cal.App.4th 155, 167-168.) Under that standard, we will not disturb the trial court's decision to admit or exclude evidence unless the trial court acted " 'in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' " (Id. at p. 168.)
2.2 Testimony of Silva and Sotelo
Defendant asserts, without record citation, that "[t]he prosecution's case relied heavily on Mr. Silva." He then engages in a lengthy discussion of People v. Leonard (1983) 34 Cal.3d 183, 185-186, which reversed an armed robbery conviction based on the conclusion that it was a prejudicial abuse of discretion to admit another person's guilty plea that was unduly prejudicial. Defendant then notes that in the instant case, there were discrepancies about (1) Tyler D.'s identification of defendant as the perpetrator, (2) whether Tyler D. was struck with a firearm, and (3) what kind of firearm defendant was carrying. However, defendant fails to identify any particular evidentiary ruling by the trial court that he asserts was erroneous, nor does he present any cognizable legal argument as to how the admission of this testimony relates in any way to Silva or to People v. Leonard. Neither are we able to discern any error based on the "argument" presented by defendant. Therefore, defendant has failed to demonstrate error.
2.3 Cross-examination of Tyler D.
In a wholly meritless contention, defendant asserts the trial court restricted his cross-examination of Tyler D. in such a way that "violated Mr. Davis's right to confront witnesses and to due process of law, under the Sixth and Fourteenth Amendments." The only specific ruling defendant identifies in his argument, however, was the trial court's sustaining of a relevance objection when defense counsel attempted to ask Tyler D. about a conversation he had with a detective while waiting in the courthouse to testify in which the detective asked him about growing marijuana. Defendant contends the evidence is relevant to establish that the potential future threat of prosecution was evidence of bias or a motive for Tyler D. to lie. We conclude the trial court did not err in limiting cross-examination of Tyler D.
Counsel for defendant asked Tyler D. about his communications with law enforcement and suggested that Tyler D. was concerned about upsetting, annoying, or angering law enforcement, which Tyler D. dismissed. Counsel then engaged in the following inquiry:
"[COUNSEL:] Okay. Is it true that they [(the detectives)] asked you about your marijuana grow that you—if you currently have a marijuana grow?
"[TYLER D.:] I think—I mean, they asked me about marijuana growing.
"[COUNSEL:] So yesterday they asked you about marijuana growing?
"[TYLER D.:] Oh, yeah.
"[PROSECUTOR:] That was asked and answered, actually.
"[COUNSEL:] I was just clarifying.
"[THE COURT:] Overruled.
"[PROSECUTOR:] I'm going to object as to relevance.
"[THE COURT:] Sustained. Move on.
"[COUNSEL:] Well, my question is—obviously if there's another objection, I'm trying to get to if there was any sort of feeling if you were intimidated or coerced in any way by law enforcement?
"[TYLER D.:] No, I don't have a marijuana grow or anything going on right now.
"[COUNSEL:] So you didn't feel that way?
"[TYLER D.:] No.
"[COUNSEL:] And did law enforcement say anything to you to the effect of that you just needed to come to court and identify Mr. Davis and this would all be over with? Did they say anything like that to you?
"[TYLER D.:] They said that just come in and tell the truth, and that's what you can do.
"[COUNSEL:] Okay. So they didn't instruct you to identify Mr. Davis or anything like that?
"[TYLER D.:] Oh no, they didn't. They didn't even say anything about him."
The trial court has discretion to limit cross-examination of an adverse witness. (People v. Whisenhunt (2008) 44 Cal.4th 174, 207.) Such a limitation on efforts to cross-examine a witness as to his or her credibility does not run afoul of the confrontation clause " 'unless a reasonable jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted.' " (Id. at p. 208.) Here, there was ample evidence presented at trial that Tyler D. did engage in growing marijuana for medical purposes for himself and for his family, and that law enforcement was aware of his grow. And, with respect to any concerns about whether he testified as he did in fear of law enforcement, Tyler D. directly rejected such questions on cross-examination. Thus, on this record, we cannot say the trial court's limitation of defense counsel's cross-examination of Tyler D. violated the confrontation clause or defendant's right to due process.
2.4 Evidence of Defendant's Phone Number
Finally, defendant contends the trial court erred in permitting the People to present, over defendant's objection, "prejudicial and cumulative evidence" regarding his phone number. The People argued defendant's phone number was one of the forms of identification in the assault and attempted robbery of Tyler D. The People explained Tyler D. had been communicating with defendant via text message about the sale of a vehicle, Tyler D.'s phone showed those text messages as associated with a particular phone number, Tyler D. said that the man who had communicated with him via text message was also the man who robbed him, and defendant provided that same phone number at booking and to his probation officer. The trial court ruled that the People could present the phone number, but could not present evidence that defendant was on felony probation. While defendant is correct that he offered to stipulate that the phone number appearing on Tyler D.'s phone is defendant's, and that jurors heard defendant gave the same phone number as his during booking at the jail on other charges and to a probation officer, and that the prosecutor referred to this evidence in his closing argument, defendant does not present any cognizable legal argument to show what error the trial court made in admitting this evidence, or how any such error was prejudicial. Therefore, defendant has failed to show prejudicial error on the part of the trial court.
3.0 Claimed Instructional Error
Defendant also claims there were multiple instructional errors. Among these are the trial court's explanation of the meaning of its evidentiary rulings, an instruction that conveyed erroneous charging dates for the charged crimes, and the failure to instruct the jury that some evidence should be considered for a limited purpose. We conclude defendant has failed to show any prejudicial instructional error by the trial court.
3.1 Explanation of Court Rulings
Defendant asserts that "[a]t least one juror did not understand what the rulings on objections meant, based on the juror's question after hearing from seven prosecution witnesses." Indeed one juror did ask the trial court to explain what overruled and sustained meant. The trial court did so, stating, of the terms "overruled" and "sustained": "Those are rulings I'm making. So [the attorneys are] objecting to the form of the question. When I overrule the objection, it means I don't agree with them that that's an objectionable question. I'm overruling their objection. So I'm telling the witness they can answer the question. If I sustain an objection, it means I agree with the attorney that was an improper question and I'm not going to let the . . . witness answer that question. Sometimes the attorneys want to argue those issues, and we do that outside the presence of the jury. That's why they come up to the bench, because they're sharing their legal knowledge with me and trying to convince me of their point of view, okay." Defendant has not explained how this statement was erroneous or in any way prejudiced him. Moreover, in addition to this instruction, the trial court instructed the jury with standard instruction, CALCRIM No. 222, which explains how the jury is to interpret objections and the court's rulings to those objections. Therefore, defendant has not shown any error based on the juror's question or the trial court's response, and we do not discern any.
CALCRIM No. 222 provides, in pertinent part: "Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence. Their questions are not evidence. Only the witnesses' answers are evidence. The attorneys' questions are significant only if they helped you to understand the witnesses' answers. Do not assume that something is true just because one of the attorneys asked a question that suggested it was true. [¶] During the trial, the attorneys may have objected to questions or moved to strike answers given by the witnesses. I ruled on the objections according to the law. If I sustained an objection, you must ignore the question. If the witness was not permitted to answer, do not guess what the answer might have been or why I ruled as I did. If I ordered testimony stricken from the record you must disregard it and must not consider that testimony for any purpose."
3.2 Explanation of Dates in Charging Documents
Defendant's opening brief has a subheading, "Confusion of the Dates of the Charges," within his headed argument entitled, "Along with Improper Joinder, Evidentiary Rulings, Instructional Error, and Discovery Violations Actually Prejudiced Mr. Davis." Within that subheading, he states that "[a] juror asked whether the dates were appended to each count, evincing confusion between the joined cases." The juror did indeed ask with respect to the jury instructions, "On each count are the dates attached?" The trial court responded that the dates were not attached, but explained: "Count 4 occurred on August 14, 2013, so it's alleged the residential burglary occurred on August 14, 2013. And then Counts 2, 3, 4 [sic (should be counts 1, 2, and 3)], that's the attempted robbery, assault with a semiautomatic firearm, and possession of a firearm by a felon occurred on October 30th, 2013. The People are not required to prove that the crimes took place exactly on those days, but only that it happened reasonably close to those days."
Defendant asserts this response added confusion. No doubt, the erroneous statement of the count numbers for attempted robbery, assault with a semiautomatic firearm, and possession of a firearm by a felon was superficially confusing. However, the trial court did connect the correct dates of the consolidated information with the corresponding charged crimes, and the accurate count numbers for the crimes were provided on the verdict forms. Defendant provided no further analysis demonstrating any prejudicial error by the trial court. Therefore, we conclude he has failed to demonstrate any instructional error requiring reversal based on this statement by the trial court, and we conclude that any error in providing the wrong charging dates in the oral response to the jury's question was harmless.
3.3 Lack of Instruction
Defendant contends that instructional error exacerbated the prejudicial joinder, requiring reversal. He claims the trial court erred in failing to instruct the jury to limit consideration of evidence pertaining to counts 1, 2, and 3 to those counts alone. He also contends the court erred in failing to instruct the jurors of a limited purpose for the evidence about Silva, and he further claims that admission of evidence about Silva and Sotelo could not have been alleviated by a limiting instruction. We conclude the trial court did not err in failing to provide a limited instruction in the absence of a request for such an instruction.
"[W]here, as here, a defendant fails to request an instruction, a trial court 'generally [has] no duty to instruct on the limited admissibility of evidence.' " (People v. Valdez (2012) 55 Cal.4th 82, 139; see Evid. Code, § 355 ["When evidence is admissible . . . for one purpose and is inadmissible . . . for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly."], italics added.) There is an exception to this rule as stated in People v. Collie (1981) 30 Cal.3d 43, 64, in the "occasional extraordinary case in which unprotested evidence . . . is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose." This, however, is a "a narrow exception to the general rule not requiring sua sponte instruction," and it was hypothesized as applying with respect to the admissibility of evidence of other crimes. (People v. Rogers (2006) 39 Cal.4th 826, 854.) Defendant has not argued that the narrow exception of Collie should apply here, and we conclude the facts do not support its application in this case. Therefore, the trial court did not err in failing to provide an unsought limiting instruction. 4.0 Alleged Brady Violation
Brady v. Maryland (1963) 373 U.S. 83 (Brady).
Defendant claims the record suggests that the prosecution team had contact with Tyler D. which resulted in the divulgence of exculpatory evidence, but that the evidence was not documented or provided to defendant. Although not expressly articulated, it appears defendant contends this is a violation of the prosecution's duty to disclose exculpatory evidence to the defense. Regardless, we conclude the record does not support defendant's claim.
In an e-mail from the prosecutor to defense counsel, the prosecutor relayed that Tyler D. had approached the defense investigator, who informed the prosecutor that Tyler D. had implied that he may have doubts about his identification of defendant as the person who robbed him, but that the investigator did not provide the prosecutor with a report as requested. The prosecutor later received an e-mail from the investigating officer who had spoken with Tyler D. That e-mail read: " 'As far as the ID on Davis he isn't going to have a problem. The defense investigator was working him over trying to get him to waffle, tried to make him feel guilty that Davis is looking at "33" years in prison. . . .' " This information was also conveyed to defense counsel. At trial defendant asked to question Tyler D. before he testified, but the trial court deferred its ruling, and ultimately Tyler D. testified without the trial court ruling on defendant's repeated request.
Federal due process requires the prosecution to disclose evidence, within its custody or control, which is favorable to the defendant and material to guilt or punishment regardless of whether the defendant makes a request. (Brady, supra, 373 U.S. at p. 87 ; In re Brown (1998) 17 Cal.4th 873, 879.) Any exculpatory evidence known to those acting on the state's behalf is imputed to the prosecution. (In re Brown, at p. 879.) "There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." (Strickler v. Greene (1999) 527 U.S. 263, 281-282 [144 L.Ed.2d 286, 302]; People v. Salazar (2005) 35 Cal.4th 1031, 1043.) A Brady violation is demonstrated " 'by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.' " (In re Brown, supra, 17 Cal.4th at p. 887.) " 'We independently review the question whether a Brady violation has occurred, but give great weight to any trial court findings of fact that are supported by substantial evidence.' " (People v. Masters (2016) 62 Cal.4th 1019, 1067.)
However, defendant has not demonstrated on this record that the prosecutor was actually in possession of any exculpatory information that it failed to disclose to defendant. Rather, it appears it was the defense investigator who heard of Tyler D.'s alleged uncertainty, and there was no reiteration of that uncertainty when Tyler D. spoke with the investigating officer. Aside from defense counsel's uncorroborated belief that the investigating officer has "had substantial and meaningful contact with [Tyler D.], the nature of which is exculpatory to [defendant]," there is not any evidence in the record that the prosecution or anyone acting on the state's behalf had any exculpatory evidence. Moreover, defendant has failed to demonstrate that if such exculpatory evidence did exist, that the People's failure to provide it to him was prejudicial. (People v. Hoyos (2007) 41 Cal.4th 872, 918 [defendant bears the burden of showing materiality of the undisclosed evidence to prove Brady violation].) Therefore, we conclude defendant has failed to demonstrate the existence of a Brady violation in this case.
5.0 Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct in the course of presenting the People's closing argument. However, defendant neither objected to those portions of the prosecutor's closing argument he now claims constituted misconduct, nor did he request a curative admonition. (See People v. Hill (1998) 17 Cal.4th 800, 820 ["As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless . . . on [that] ground . . . the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety."].) Therefore, we conclude defendant's claim of prosecutorial misconduct is forfeited. (See People v. Abilez (2007) 41 Cal.4th 472, 493.)
DISPOSITION
The judgment is affirmed.
BUTZ, Acting P. J. We concur: MURRAY, J. RENNER, J.