Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM027426
ROBIE, J.
A jury found defendant Samson Frazier guilty of second degree murder and possession of a firearm by a felon, and found true the special allegation that he personally and intentionally discharged a firearm causing great bodily injury. In a bifurcated proceeding, the trial court found defendant served a prior prison term and had a prior strike conviction and a prior serious felony conviction. The court sentenced defendant to a term of 11 years plus 55 years to life in state prison.
On appeal, defendant contends the trial court erred by admitting evidence of a jailhouse conversation he had with his girlfriend without weighing the probative value of that evidence against its prejudicial effect as required by Evidence Code section 352. Defendant claims that error was compounded by the court’s instruction to the jury on consciousness of guilt by suppression and fabrication of evidence. (CALCRIM No. 371.) We affirm the judgment.
All further statutory references are to the Evidence Code.
FACTUAL AND PROCEDURAL BACKGROUND
On July 17, 2007, defendant, along with his girlfriend Myra, his sister Tanya, Tanya’s 18-month-old daughter, defendant’s friend Jeremy Neal, and Jeremy’s nephew Brandon, walked from an apartment complex to a convenience store to get something to drink. Along the way, they were approached from behind by three men -- Alberto Estrada, Jimmy Palmer, and a man named Frankie -- all wearing red, the color worn by members of the Norteños gang. Defendant, who is a member of the Sureños gang and wearing blue, turned around and asked the three men if they had a cigarette. One of them replied, “‘Fuck no.’” Palmer asked defendant, “Do you bang?” (a phrase used to determine whether someone is in a gang). Defendant pulled a gun out of his pocket and said something like, “Say I won’t” or “You don’t think I’ll do it” and then fired the gun at Estrada, hitting him in the chest. Defendant fled the scene, but was arrested shortly thereafter.
Palmer testified at trial that he became “involved with” the Norteños gang at the age of 15, but was no longer involved after a friend of his was shot.
Detective Jason Barkley testified that Palmer and Estrada were involved with the Norteños gang, and that defendant and Jeremy Neal were involved with the Sureños gang.
Defendant testified at trial that he became a member of the Sureños gang in prison in 2004.
Several hours after the shooting, defendant’s sister, Tanya, told police the three men had been “‘talking shit about southsiders.’” She confirmed that defendant pulled out a gun, said “You don’t think I’ll do it,” and shot Estrada, adding “‘That’s why I’m mad at him [defendant] cause now I’m not going to see him forever. I love him but he’s going to prison forever.’”
The day of the shooting, police interviewed defendant, who denied being present at the shooting and denied any knowledge of the incident. Several months later, Palmer, who was in custody on another matter, identified defendant in a photographic lineup.
At trial, Tanya denied much of the information she provided to detectives the night of the shooting, claiming she lied that night because she had a warrant and was under the influence of drugs and feared she would be arrested, and because she was pregnant and was afraid her children would be taken away from her.
Defendant testified that Estrada called him a “snitch” and then lifted up his shirt, revealing a gun. When Estrada went to grab the gun, defendant pulled his own gun out of his back pocket, cocked it, and fired it at Estrada.
During cross-examination, the prosecution sought to impeach defendant as to his credibility with an audiotape of a jailhouse conversation between defendant and his girlfriend, Myra. Defense counsel objected first on hearsay grounds. The court overruled the objection but heard argument from counsel at the bench regarding the relevance of the proposed evidence. The court concluded the evidence was admissible and permitted the jury to hear the following:
“Myra: Everything else doesn’t even matter.
“[Defendant]: Hey, did you see that? Did you memorize it. Babe.
“Myra: That’s all you baby.
“[Defendant]: So your [sic] not going to go? You won’t get up there for me? You won’t get on the stand? So I’m all alone then. So I’m all alone on this?
“Myra: No baby.
“[Defendant]: Huh?
“Myra: I don’t know what your [sic] talking about.
“[Defendant]: I’m asking.... Okay. Can I call you as a witness? That’s all right? Yes or no? I need....
“Myra: I thought... (unintelligible.)
“[Defendant]: Huh?
“Myra: (Unintelligible.)”
The tape then continued,
“Myra: I think she’s having a boy.
“[Defendant]: Can you memorize that? Can you memorize it?
“Myra: Yeah.
“[Defendant]: Look.
“Myra: But.... Yeah, she’s eight months pregnant....
“[Defendant]: Listen, Myra. Can I tell you something? Myra? Will you get on the stand and give your side of the story of what happened?
“Myra: What?
“[Defendant]: Will you get on the stand and give your side of the story of what happened? Pick up the phone. Can we pick the phone up?”
Defendant explained that he had asked Myra to memorize the telephone numbers of his attorney and someone named Evie Joseph.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends the trial court abused its discretion not in admitting evidence of the jailhouse conversation between defendant and Myra, but in “abandon[ing]” the duty to weigh the prejudicial effect of that evidence against its probative value as required under section 352 and instead delegating that duty to the jury. He urges further that the court’s error in failing to weigh the evidence under section 352 was compounded by its instruction to the jury on consciousness of guilt by suppression and fabrication of evidence (CALCRIM No. 371), given the “insufficient basis” for that instruction. For the following reasons, we disagree with the former claim and therefore need not address the latter.
“Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) A trial court’s evidentiary ruling to permit such evidence will be overturned only if the court exercised its discretion arbitrarily and capriciously, resulting in a miscarriage of justice. (Ibid.)
The law in California is clear that “a trial court, in making a determination whether certain evidence is substantially more prejudicial than probative, ‘need not expressly weigh prejudice against probative value--or even expressly state that [it] has done so....’” (People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6.)
Here, the court’s ruling demonstrates that it applied the test required under section 352. First, the court requested that counsel explain the relevance of the evidence sought to be admitted. Counsel for the People explained that the relevant portions of the jailhouse conversation demonstrated that defendant was asking Myra to memorize something and to testify falsely on his behalf. Defense counsel argued that theory was speculative and urged that, if asked, defendant would provide another presumably innocent explanation for his questions to Myra. The court permitted the testimony, noting the evidence “goes directly to whether or not [defendant] is credible,” regardless of whether defendant “claims he has some innocent explanation.” The court ruled as follows: “Whether it [the evidence] was to influence that person to testify falsely or some other way is the issue that’s before the Court -- the inference the DA would like to draw is that it shows that’s an inference to try to persuade a witness to testify falsely. [¶] The jury, I suppose, could draw that inference. I’m guessing that they could also draw the inference that it was some harmless reason too. So the Court thinks that during cross[-]examination this would be allowed and you could question him [the defendant], both of you, as to what the intent was and then let the jury decide.”
Later, during discussions with counsel regarding exhibits to be entered, defense counsel again objected to admission of the tape-recorded jailhouse conversation between defendant and Myra “as not relevant, 352, 5th and 6th Amendments.” The court overruled defense counsel’s objection, stating as follows: “Again we discussed this at the bench earlier. For those reasons the Court will find that any probative value outweighs any prejudicial effect.”
The fact that the court considered argument from counsel on the relevance of the proffered evidence, and its express statement that “any probative value outweighs any prejudicial effect,” is evidence that the court was well aware of its duty under section 352 and did in fact conduct the required analysis under that statute. There was no error.
Given our disposition in this respect, we reject defendant’s contention that there was an insufficient basis for the jury instruction on consciousness of guilt by suppression or fabrication of evidence. (CALCRIM No. 371.)
DISPOSITION
The judgment is affirmed.
We concur: HULL, Acting P. J. BUTZ, J.