Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC595165
McAdams, J.
A jury convicted defendant Raymond Goins of five counts of robbery in concert of an inhabited dwelling and one count of being an ex-felon in possession of a firearm. (Pen. Code, §§ 213, subd. (a)(1)(A), 12021.1, subd. (a).) The jury also found true allegations that defendant personally used a firearm during the robberies. The jury acquitted defendant of two counts of robbery. Defendant admitted allegations that he had previously suffered a serious felony conviction, a strike conviction, and had served three prior prison terms. (§§ 667, subd. (a), 667, subd. (b)-(i)/1170.12, 667.5, subd. (b).) The trial court sentenced defendant to a 28-year prison sentence.
Unless otherwise indicated, all further statutory references are to the Penal Code.
On appeal, defendant contends that the trial court erred prejudicially by admitting evidence that, three days after the separate preliminary hearing of one of the other persons charged in the robberies, the victims’ house had been shot up. He also contends that the trial court improperly restricted cross-examination of a witness for bias, and gave unconstitutional reasonable doubt instructions. We affirm.
STATEMENT OF FACTS
On the weekend of January 23, 2005, while their parents were out of town, brothers David and Bryan Lang, ages 21 and 19 respectively, had seven of their friends over to their house at 36 Rancho Drive in San Jose. The friends were Alex Guerrero, Bridget Martinez, Luis Murillo, Brandon Everly, Timothy Johnson, Reyna Torres, and Miguel Wooten. They were “[j]ust kicking it” – listening to music, drinking beer, smoking marijuana – when four intruders entered the house through Bryan Lang’s bedroom. The intruders were all African American men. One man was bigger and older than the others at six feet, two or three inches tall and 250 to 300 lbs., and approximately 40 years old. He was armed with a .45 caliber Desert Eagle handgun. The other men were approximately 20 to 25 years old. Each of the other robbers was armed with a handgun.
The intruders said: “Get the fuck down, this is a jack move,” meaning a robbery. They wanted to know where the money, drugs and jewelry were. The biggest of the intruders hit David Lang in the head with the butt of the gun “[r]ight when they came in.” Another of the intruders, later identified as Steven Dorell Wilson, also struck David Lang in the head with butt of a gun.
The intruders split up and went to different parts of the house. They took the Lang brothers to their parents’ room and put everyone else in the bathroom. David Lang was forced to crawl there on his hands and knees. Wilson asked for David Lang by name. The intruders ransacked the room while the brothers watched. They found the boys’ father’s rifle under the bed.
The biggest of the intruders robbed David Lang of his wallet, cell phone, chain and earrings at gunpoint while David was on the floor. The brothers’ friends were forced by the intruders to crawl to the bathroom. Brandon Everly’s wallet was taken from him at gunpoint. The robbers also took purses from Bridget Martinez and Reyna Torres at gunpoint. One of the robbers took Bryan Lang’s jewelry and made him empty his pockets and take off his clothes. The robber who took Bryan Lang’s property wore a black beanie on his head. From the hallway, this robber pointed a nine millimeter handgun at the people in the bathroom and told them they would be shot if they tried to leave the bathroom. When this robber saw Miguel Wooten, he said, “Aren’t you Reggie’s cousin? … You’re not supposed to be here.”
At some point, one of the robbers asked which of the people in the bathroom was David Lang’s brother. When Bryan responded, they asked him where the money, jewelry, valuables, and safe were. When Bryan said he didn’t know, the robber with the beanie hit him on the temple with the gun. At trial, Bryan identified defendant as the beanie-wearing robber who held him at gunpoint; he testified that he was 100 percent certain. However, in February 2006 he had not been able to pick defendant’s picture out of a photo lineup.
The robbers forced David Lang at gunpoint to crawl down the hallway, past the bathroom where his friends were being held at gunpoint by the beanie-wearing robber, to his bedroom. That gunman had his back to David, and David did not see his face. Once in his bedroom, David Lang was directed to open a safe. David pretended to spin the dial as if he were going to open it, and then swung at the intruder Steven Wilson. A physical fight between the two ensued. When David struck Wilson with his bare hands, Wilson “tuck[ed] the gun in” and ran straight towards the door in the room which led outside. Wilson left behind “[s]ome court papers” with his name on them.
David chased Wilson past the bar next door and told the bartender and bar patrons standing outside to call the cops because he was being robbed. David ran back to the house, where he and his brother joined up to chase a second robber away. Ten minutes later, the police arrived. The police detained all of the Lang brothers’ friends at gun point. David Lang was taken away from the house by ambulance. The officers found 40 grams of marijuana in the house. A bag containing some of the victims’ belongings was found in David’s room.
At 1:00 a.m., Bryan Lang called his mother, Mrs. Diane Lang, and frantically begged her to come home immediately. After speaking with the police, she and Mr. Lang did so. When they arrived home, the house was in disarray and there was blood on the carpet. While she was straightening up the mess in David’s bedroom, she found a folded-up piece of paper on the floor under a dirt bike that turned out to be a court paper for a hearing date with Steven Wilson’s name and address on it. David and Bryan did not know the name and she gave the paper to the police.
Four months later, David Lang was subpoenaed to testify at a court hearing on April 5, 2005. Before the hearing, his friend Miguel Wooten told David that he had heard “they were going to bust some John Wayne shit if I testified,” meaning do a drive-by shooting. David interpreted this as a real threat, but he chose to testify anyway and his testimony at that hearing was essentially the same as his testimony at defendant’s trial. Three days after David testified, his house was shot up while he was at home in bed, but the incident did not cause him any fear or concern.
Immediately after David Lang testified about the shooting and his lack of fear, the trial court instructed the jury: “Ladies and gentlemen, I just need to tell you something and admonish you in this regard that Mr. Goins, the defendant in this case, has not been charged nor accused of any of this conduct. This evidence is to be considered by you if at all only for the purpose of evaluating the witness’ testimony – this witness’ testimony. For no other reason. Thank you.”
At trial, David Lang was asked if defendant was the gunman who held his friends in the bathroom. David did not “know if it is him or not,” but defendant’s physical appearance was consistent with the robber in the hallway.
On April 5, 2005, Mrs. Lang testified at a court hearing about the January 23, 2005 break-in. Prior to that hearing, she was concerned about her safety and the safety of her family, and had asked the police if there would be any retaliation if they testified. Afterwards, an event occurred that caused her concern for her safety and that of her family. She, her husband and her three sons were at home in bed when, at 1:00 or 2:00 a.m., someone fired eight bullets through three walls of their home. Mrs. Lang felt that even though “coming forward … is what we need to do,” she was “still afraid that after we testify we will all get retaliation again.” However, Mrs. Lang acknowledged on cross-examination that in the year and a half since the incident in April 2005, no one had threatened her, her sons or their friends with regard to testifying in any court proceeding. Nevertheless, she still was fearful of testifying, for her sons and herself.
Immediately after Mrs. Lang’s testified about the shooting and her concern for her safety, the trial court admonished the jury that “Mr. Goins has not been charged nor accused of this conduct that you have just heard testimony about. This conduct is to be considered only for the purpose of evaluating the witness’s testimony – state of mind as she testifies today and for no other reason.”
Bridget Martinez testified that on the very day she testified, but before she took the stand, someone left a message on her cell phone saying “I’ve been watching you.” The message caused her concern for her safety. The message was played to the jury during her testimony.
At the April 5, 2005 court hearing for Wilson, all of the witnesses expressed concerns for their safety to Detective Ronnie Lopez. Brandon Everly told Lopez that he had received a phone call from an unknown person threatening that there would “be a John Wayne done at the house” if he testified.
Steven Wilson was arrested based on the court paper left at the Lang residence by him.
In June 2005, Everly told Detective Lopez that four months earlier he had been at a McDonald’s restaurant with Miguel Wooten, one of the other victims, when defendant asked Wooten for the phone number of a mutual friend. At that time, he recognized defendant as the robber who had held him and his friends in the bathroom at gunpoint. Wooten said that defendant’s name was “Raymond.”
Detective Lopez then assembled an array of 13 photographs and showed it to Everly on Wednesday, June 15, 2005. Everly was reluctant to view the photographic array, and Detective Lopez had to convince Everly that he “would try to do everything possible to keep his name out of the report.” Everly positively identified defendant’s picture as the robber who had held him and his friends in the bathroom. After his identification, however, Everly ceased to cooperate with the investigation, saying that he feared for his life. Everly did not identify defendant at trial. Detective Lopez also interviewed Wooten, but Wooten, too, was uncooperative.
In January 2006, Detective Lopez showed photographic lineups to Bridget Martinez and Luis Murillo. Both identified the picture of defendant as that of the robber who had held them in the bathroom at gunpoint. At trial, neither Martinez nor Murillo identified defendant.
Defendant was arrested in June 2005, on the basis of Everly’s identification of him as one of the robbers. After his arrest, the police recorded a number of his telephone calls to various people from county jail. They were played to the jury.
In one phone call, defendant told a relative that that he knew one of the victims and that the victim had told him he was not “tripping,” meaning that the victim was not cooperating with the police. Defendant also told his mother that he knew the victim. During a three-way call to a friend, defendant said he couldn’t say any names, but a person he would refer to as “B” (meaning Brandon Everly) had told the police that defendant had robbed him; defendant told his friend that he needed someone to “holler at the nigga. [¶] … [¶] You know what I mean? Tell the nigga, I mean.” In that same phone call, defendant said he was willing to pay B. “$1,500.00 … know what I mean? ... to be cool … it’s nothing … [¶] … [¶] alright, get at that nigga ASAP.” In another phone call, a friend told defendant that he had tried to get a relative who worked at DMV to find out about Brandon Everly, but the relative needed Everly’s birth date and possible street address. The friend told his relative that he would try to get more information. The friend then asked defendant, “But what was the deal with that?” Defendant responded: “Because, that’d be like my key (witness) … well, I can’t really say because it’s a recorded phone call and I don’t want the DA knowing shit.” During another three-way conversation, defendant told a friend that he needed that friend to “holler at him [Brandon Everly], make sure he can’t say anything good.”
Defense Case
Dr. Robert Shomer testified for the defense as an expert in eyewitness identification, perception and memory. He testified about how the procedures employed by police can affect the reliability validity and fairness of eyewitness evidence. He also testified about the factors that are relevant to eye witness identification.
DISCUSSION
Admission of Evidence of the Shooting into the Lang Residence
Defendant contends it was state law and federal constitutional error to admit evidence of the shooting into the Lang residence “in the absence of any evidence as to either [defendant’s] responsibility for the drive-by or any effect of the drive-by on the prosecution witness’s testimony.”
Background
Prior to trial, the prosecutor filed an in limine motion to admit evidence of a shooting into the Lang residence that occurred on April 8, 2005. According to the motion, the shooting occurred “four days after several members of the Lang family (David, Bryan, and Diane) … identified Steven Dorell Wilson as the man who broke into their home and robbed them at gunpoint.” In the motion, the prosecutor stated that four other witnesses identified Wilson at the preliminary hearing; before the hearing, most of the witnesses expressed fear and reluctance to testify; and after the shooting, “an already reluctant group of witnesses were now in a state of great concern and refused to testify” at Wilson’s trial. Most of the witnesses reluctantly testified at Wilson’s trial after being personally served with subpoenas, but they “either lied on the stand or simply didn’t remember their prior statements” and refused to identify Wilson, forcing the prosecution to impeach them with their prior inconsistent statements. Finally, “all of the witnesses have expressed enormous reluctance to further testify against Mr. Goins” and that reluctance was “directly related” to the shooting. The prosecutor argued that evidence of the April shooting and threats made to various witnesses should be admitted to “place in context the condition or state of mind under which the witness (if he knows of the threats and shooting) is now testifying.”
Defense counsel filed a pretrial in limine motion to exclude evidence of the shooting. He argued that because defendant was not charged with the shooting, the evidence was irrelevant and highly prejudicial. “Simply put, there are no relevant reasons to introduce this in this trial, other than to inflame the jury. The manner in which the witnesses testify should not allow this highly prejudicial information (that is not charged) to come into evidence.”
At the close of the David Lang’s first day of testimony, defense counsel moved to strike David’s testimony about the drive-by shooting of his house, because David testified that it caused him no fear or concern. The court took the motion under submission, indicating that if none of the other witnesses indicated any fear, it intended to strike David Lang’s testimony on this point and instruct the jury not to consider it for any purpose.
However, as described ante, Mrs. Lang testified that the shooting aroused in her a fear of further retaliation against her and her family for testifying at defendant’s trial. Bridget Martinez testified that a threatening message left on her cell phone the day of her testimony at defendant’s trial caused her concern for her safety. Detective Lopez testified that Brandon Everly refused to cooperate with the police after identifying defendant’s photograph from a photographic lineup, saying that he feared for his life. At trial, Everly testified that he did not get a good look at the robber, did not remember if he saw the robber at McDonald’s, did not remember if he identified the robber from a photographic lineup, and did not identify defendant at trial. He admitted he feared for his safety, but did not recall if anything happened at the Lang residence in April 2005 after the court hearing at which he testified. Although both Bridget Martinez and Luis Murillo identified defendant’s photograph from a photographic lineup, neither Martinez nor Murillo identified defendant at trial. Neither Martinez nor Murillo were questioned about the shooting.
At the close of the prosecution’s case, defense counsel renewed his motion to strike David Lang’s testimony about the shooting. The court denied the motion, ruling that given the evidence and the admonitions and the court’s Evidence Code section 352 analysis, the court viewed the evidence of the shooting as “particularly relevant” to the jury’s evaluation of the witnesses’ “demeanor, the way they responded to questions, the colloquy and their … expressed reticence about testifying.” During instructions, the court gave CALCRIM 226, on the jury’s evaluation of witnesses, and CALCRIM 303, on evidence admitted for a limited purpose.
CALCRIM 226 states, in relevant part: “In evaluating a witness’s testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are: [¶] … [¶]
CALCRIM 303 states: “During the trial, certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other.”
Standard of Review
We review the trial court’s evidentiary rulings for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 724.) “This standard is particularly appropriate when … the trial court’s determination of admissibility involved questions of relevance, …, and undue prejudice. [Citation.] Under this standard, a trial court’s ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Guerra (2006) 37 Cal.4th 1067, 1113 (Guerra), disapproved on another point in People v. Rundle (2008) 43 Cal.4th 76, 151.)
Forfeiture
At the outset, we reject the Attorney General’s claim that defendant has forfeited his constitutional claim because he did not specifically object below on federal constitutional grounds. Defendant’s claims were preserved for review. The trial court indicated “for any appellate record” that the court considered defendant’s objections to have been made on both state law and federal constitutional grounds. Furthermore, our Supreme Court has held that a defendant may argue on appeal “that the asserted error in admitting evidence over his Evidence Code section 352 objection has the additional legal consequence of violating due process,” even if due process was not specifically cited at trial. (People v. Partida (2005) 37 Cal.4th 428, 435.)
Analysis
Defendant argues that the evidence was not admissible under Evidence Code 352 because, coupled with evidence that defendant was acquainted with Steven Wilson, and that Wilson, but not defendant, had been arrested before the shooting, “there was a serious risk that the jury would infer that [defendant] was complicit in the shooting, notwithstanding the absence of any actual evidence of that.” Defendant also contends that the evidence was not admissible pursuant to Evidence Code 780 because the Langs did not repudiate their prior identifications and they, along with Bridget Martinez and Brandon Everly, were “ready, willing and able to testify.” Finally, defendant also appears to argue that the evidence of the shooting was unnecessary because, independent of the shooting, the prosecution’s witnesses had reason to fear retaliation for snitching to the police. In effect, he argues that the evidence had no relevance to the charged crimes and was unduly prejudicial. For the following reasons, we disagree.
Evidence Code section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of under prejudice, or confusing the issues, or of misleading the jury.”
Evidence Code section 780 provides in relevant part: “Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: [¶] (a) His demeanor while testifying and the manner in which he testifies. [¶] (b) The character of his testimony. [¶] … [¶] (f) The existence or nonexistence of a bias, interest, or other motive. [¶] … [¶] (j) His attitude toward the action in which he testifies or toward the giving of testimony.”
The fact that there was no proof of defendant’s involvement in the shooting did not render that evidence irrelevant. “Evidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. [Citations, including Evid. Code, § 780.] An explanation of the basis for the witness’s fear is likewise relevant to [his or] her credibility and is well within the discretion of the trial court.” (People v. Burgener (2003) 29 Cal.4th 833, 869 (Burgener); see also People v. Olguin (1994) 31 Cal.App.4th 1355, 1367-1369 (Olguin); People v. Gutierrez (1994) 23 Cal.App.4th 1576, 1587-1588 (Gutierrez).) Moreover, “it is not necessary to show the witness’s fear of retaliation is ‘directly linked’ to the defendant for the threat to be admissible. [Citation.] It is not necessarily the source of the threat—but its existence—that is relevant to the witness’s credibility.” (Burgener, at pp. 869-870; Olguin, at p. 1368; Gutierrez, at p. 1588.)
The evidence was not rendered irrelevant because some of the witnesses may have had other or different reasons to fear retaliation. In our view, evidence about the shooting provided one possible explanation for the witnesses’ attitudes toward the proceedings which the jury was entitled to evaluate along with other possible explanations. As the Court of Appeal explained in Olguin: “[T]he fact a witness is testifying despite fear of recrimination is important to fully evaluating his or her credibility. For this purpose, it matters not the source of the threat. … [¶] Regardless of its source, the jury would be entitled to evaluate the witness’ testimony knowing it was given under such circumstances. And they would be entitled to know not just that the witness was afraid, but also, within the limits of Evidence Code section 352, those facts which would enable them to evaluate the witness’ fear. A witness who expresses fear of testifying because he is afraid of being shunned by a rich uncle who disapproves of lawyers would have to be evaluated quite differently than one whose fear of testifying is based upon bullets having been fired into her house the night before the trial. The trial court acted well within its discretion in insuring the jury would have such evidence and would properly evaluate it.” (Olguin, supra, 31 Cal.App.4th at p. 1369.)
Nor was the evidence rendered irrelevant because David Lang disavowed any fear or concern for his safety. Mrs. Lang, who was also at home the night of the shooting, described the fear she felt for her safety and that of her family after that night. Especially in light of her testimony, the jury was not required to accept David Lang’s stated lack of fear at face value, or in a vacuum. The trial court did not err in concluding that the evidence was relevant to the jury’s consideration of David Lang’s testimony and its evaluation of his credibility.
Exclusion of the evidence was not required because the jury might have been tempted to infer that defendant was involved in the shooting, despite the lack of any evidence tying him to the shooting. The court was obviously aware of that risk and safeguarded against it by admonishing the jury during David Lang’s and Diane Lang’s testimony that defendant had not been accused of or charged with the shooting, and that the evidence must not be considered for any purpose other than evaluating the witness’s credibility. The court also included CALCRIM No. 303 in its charge to the jury. We presume jurors follow the court’s limiting instructions. (Guerra, supra, 37 Cal.4th at p. 1115.) Defendant has not pointed to anything that would rebut that presumption.
Defendant also argues that the Gutierrez case is inapposite because, in that case, the witnesses were reluctant to testify, recanted their prior statements and identifications, or claimed memory loss or that their prior statements were tainted, whereas here, the witnesses were ready, willing and able to testify. There are two answers to defendant’s argument. First, the record does not support it. Review of the record discloses, as we have outlined above, that many of the witnesses were reluctant to testify, evasive, claimed memory loss, disavowed their prior identifications and refused to identify defendant at trial. Second, even if the witnesses had been models of cooperation, evidence of the shooting would still have been relevant to their states of mind, attitude, actions, bias or prejudice. “A witness who testifies despite fear of recrimination of any kind by anyone is more credible because of his or her personal stake in the testimony.” (Olguin, supra, 31 Cal.App.4th at p. 1369.)
Finally, defendant argues that the error in this case is very similar to the error found in People v. Morris (1988) 46 Cal.3d 1 (disapproved on another point in In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 6) and People v. Zemavasky (1942) 20 Cal.2d 56. We disagree. Those cases place limits on collateral impeachment of a witness with the defendant’s bad acts. The shooting of the Lang residence was not a bad act committed by defendant, nor was it introduced in this case to collaterally impeach a witness. In our view, nothing in Morris or Zemavasky affects the vitality of the Burgener-Olguin-Gutierrez line of cases or the admissibility of evidence in this case.
In short, the evidence was highly relevant to the credibility of any witness who knew of the shooting, whether or not the witness admitted to fear. Here, the court weighed that probative value against the potential for prejudice, and protected against that prejudice by promptly and correctly instructing the jury regarding the limited purpose of the evidence. Under these circumstances, we cannot say that the trial court abused its discretion under Evidence Code section 352 in admitting this evidence. (Burgener, supra, 20 Cal.4th at p. 870.) Since it was not error to admit the evidence of the shooting, there was no violation of defendant’s federal right to due process.
Limitation of Cross-examination of Bryan Lang
Defendant asserts that he “was deprived of due process, a fair trial, and his right of confrontation by the trial court’s erroneous exclusion of evidence of witness Bryan Lang’s hope for law enforcement assistance in return for his testimony against [defendant].”
The Attorney General asserts forfeiture as a bar to our review of defendant’s constitutional claim. We find no forfeiture for the reasons stated ante, with respect to defendant’s argument that his due process rights were violated by admission of evidence of the shooting into the Lang residence.
Background
At defendant’s trial, Bryan Lang testified on direct examination that he currently had a pending case that was being prosecuted by the Santa Clara County District Attorney’s office, and that no one from that office had offered him any benefit for his trial testimony against defendant. On cross-examination, defense counsel asked Bryan Lang: “Isn’t it true, Mr. Lang, the way it works is they don’t come out and promise you anything for your testimony; that it is an unspoken thing; isn’t that your understanding?” Lang said “No.” Pursuing this line of inquiry, defense counsel then asked: “Mr. Lang, isn’t it true—I’m not talking about the case that is pending right now, not talking about your current felony case that you have got in this courthouse, but isn’t it true that on prior occasions, you have been arrested, and it appears to you in your eyes that you have received benefits because of your testimony?” Lang again answered “No.” The prosecutor interposed an objection, which was overruled. Defense counsel then asked Lang: “Well, isn’t it true that you have testified in the past, Mr. Lang, that you were hoping to get cooperation for your testimony?” Lang said “No.” (Italics added.) Defense counsel then sought to impeach Brian Lang with a transcript. The prosecutor objected, and a side bar conference (unreported) ensued. Following the conference, defense counsel then asked if, in June 2005, Lang had testified about the incident in his house. Lang replied “Yes.” However, the court sustained objections to questions about whether Lang had a pending case in June 2005.
Outside the presence of the jury, the prosecutor stated that Bryan Lang had testified at Wilson’s trial that he was hoping to receive, but did not receive, a benefit from the prosecutor for testifying against Wilson. The court indicated that, at the side bar conference, it had sustained the objections to defense counsel’s attempts to set up his impeachment of Bryan Lang with the transcript of the inconsistent statement Lang had made at the Wilson trial because the court believed Lang’s state of mind at the Wilson trial was not relevant to his state of mind at defendant’s trial. Defendant provided the court with the relevant pages from the transcript of Lang’s testimony at the Wilson trial. After reviewing the transcript, the court confirmed its ruling.
These pages were not made part of the appellate record. The record indicates that the court handed the pages back to defense counsel. Without them, and based only on the prosecutor’s representation, the record is unclear about the basis for Brian Lang’s testimony at the Wilson trial. However, this court’s prior unpublished opinion in People v. Steven Dorell Wilson, H029953, filed May 29, 2007, clarifies the matter. That opinion states: “The jury learned that Mrs. Lang spent $5,000 to post bail for Bryan, that Bryan had been arrested a second time on felony charges about a week before trial, that those charges were subsequently dropped, and that Bryan hoped those charges would not come back because of his testimony in this case.” (Slip opn., p. 16.) We may take judicial notice of our opinion in that case, on our own motion, for the sole purpose of clarifying the basis for Brian Lang’s testimony at the Wilson trial, because such clarification is not a matter of substantial consequence to the determination of this appeal. (Evid. Code, §§ 452, subds. (a) & (d), 459, subd. (c).)
Relevant Legal Principles
“ ‘The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.’ ” (Davis v. Alaska (1974) 415 U.S. 308, 315-316 (Davis), italics deleted.) “[W]hen the credibility of a witness is in issue, the very starting point [of confrontation] is in ‘exposing falsehood in bringing out the truth.’ ” (Smith v. Illinois (1968) 390 U.S. 129, 131.) “Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.” (Davis, at p. 316); although a court possesses considerable discretion to preclude repetitive, irrelevant, cumulative, or harassing interrogation (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 (Van Arsdall)), it must not narrow the scope in such a way as to preclude a defendant either from meaningfully “delv[ing] into the witness’ story to test the witness’ perceptions and memory” or from impeaching the witness. (Davis, at p. 316.) “The right of confrontation is not absolute, however [citations], ‘and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.’ ” (Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1138-1139.) Moreover, “[t]here is no Sixth Amendment violation at all unless the prohibited cross-examination might reasonably have produced a ‘significantly different impression of [the witness’s] credibility….’ ” (People v. Belmontes (1988) 45 Cal.3d 744, 780, quoting from Van Arsdall, supra, 475 U.S. at p. 680.) With this background in mind, we consider whether the trial court’s actions violated defendant’s Sixth Amendment rights.
Analysis
At defendant’s trial, Bryan Lang denied having testified in the past that he was hoping to get cooperation for his testimony. In fact, Bryan Lang had testified at Wilson’s trial that he hoped to get some law enforcement benefit vis-a-vis his then-pending charges in exchange for testifying at Wilson’s trial. This impeachment, had it been permitted, would have reflected on Bryan Lang’s credibility in two ways. First, it would have tended to show that Lang was willing to lie under oath. Second, Lang’s admission that he had hoped to use his testimony in Wilson’s case as leverage to obtain a favorable disposition of his then-pending charges, also tended to undermine Lang’s denial, in defendant’s case, that he hoped to use his testimony in defendant’s case to the same purpose. Having such an ulterior motive for testifying would have reflected on Lang’s state of mind as he testified in defendant’s case, and would have tended to show “a prototypical form of bias on the part of the witness….” (Van Arsdell, supra, 475 U.S. at p. 680.)
Although the trial court has considerable discretion to control abusive, repetitive, prejudicial or irrelevant cross-examination, in this case, defense counsel’s cross-examination on this point was none of those. By focusing on the fact that Lang’s prior inconsistent statement pertained to different charges and different testimony, the court overlooked the relevance of defense counsel’s proposed questioning. Although the balance of defense counsel’s cross-examination exposed discrepancies in Bryan Lang’s testimony and showed him to be an often uncooperative and forgetful witness, defense counsel was unable to prove through cross-examination on other points that Lang had lied under oath.
Assuming without deciding that the court’s exercise of discretion in this regard violated the Sixth Amendment by prohibiting cross-examination that “would have produced ‘a significantly different impression of [the witnesses’] credibility’ ” (People v. Frye (1998) 18 Cal.4th 894, 946), we nevertheless are convinced beyond any reasonable doubt that the error was harmless. (Chapman v. California (1967) 386 U.S. 18, 24; Van Arsdell, supra, 475 U.S. at p. 684 [Chapman standard applies to restriction of cross-examination to expose bias].) On cross-examination, defense counsel was able to exploit Bryan Lang’s admission on direct examination that he had been “in the back of a patrol car from time to time,” and that he had a pending case. Lang apparently refused to look at defense counsel during cross-examination and “plead[ed] the Fifth” to defense counsel’s question about prior arrests. On cross-examination, he often answered questions by saying he could not remember, and he admitted that he probably could not remember things because he had smoked so much marijuana between the robbery and the trial. Through cross-examination, the defense was also able to expose discrepancies between Lang’s statements to police after the robbery and at trial, and to use Lang’s failure to pick defendant’s picture out of a photographic lineup, and his tentative identification of another person’s picture, to cast doubt on the accuracy of Lang’s in court identification of defendant.
Moreover, despite the restriction on counsel’s ability to show that Lang had lied about his hopes of trading his earlier testimony for a happy resolution of his legal problems, defense counsel was able to sow enough seeds of doubt to argue to the jury that Bryan Lang had testified against defendant in order to “put himself in a better position” with respect to the felony trial he was currently facing on his pending case and that Lang would “dance for [his] handlers” now for the chance that he could “remind somebody of that later.”
Finally, the case against defendant was very strong. In addition to Bryan Lang’s in court identification of defendant, the evidence included Murillo’s, Martinez’s, and Everly’s pretrial identifications of defendant as the robber who held the group at gunpoint in the bathroom. These eyewitness identifications were independently corroborated by defendant’s telephonic admissions to his friends and family from jail. Against this backdrop, we are satisfied beyond a reasonable doubt that the verdicts would have been the same if the jury had learned that Bryan Lang had lied about having hopes of using his testimony against Wilson to gain some advantage from law enforcement officials on his then-pending cases.
Reasonable Doubt Instructions
Defendant contends that the reasonable doubt instructions given here “unconstitutionally constrained the jury’s consideration of sources of reasonable doubt.”
Background
The trial court instructed the jury with CALCRIM Nos. 200, 220, and 222. Defendant takes exception to the following language from those instructions.
Defendant did not object to these instructions at trial, and the Attorney General argues that defendant’s lack of objection forfeits his claim. We disagree. If defendant’s claim has merit, then his substantial rights have been affected by the challenged instructions, and statutorily no objection is necessary. (Penal Code § 1259.) Therefore we review the claim on its merits.
CALCRIM No. 200
“You must decide what the facts are. It is up to you, exclusively, to decide what happened, based only on the evidence that has been presented to you in this trial.”
CALCRIM No. 220
“In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, [he] is entitled to an acquittal and you must find him not guilty.”
CALCRIM No. 220 states in full: “The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.... [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”
CALCRIM 222
“You must decide what the facts are in this case. You must use only the evidence that was presented in this courtroom or during a jury view. ‘Evidence’ is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence.”
Applicable Legal Principles
First, “[w]e conduct independent review of issues pertaining to instructions.” (People v. Cooksey (2002) 95 Cal.App.4th 1407, 1411.) Next, we determine the correctness of the challenged instruction “in the context of the instructions as a whole and the trial record,” and not “ ‘in artificial isolation.’ ” (Estelle v. McGuire (1991) 502 U.S. 62, 72; People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.)
Finally, “ ‘[t] he due process clause of the Fourteenth Amendment protects the accused against conviction except on proof beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358, 361-362, and cases cited therein.) The United States Constitution does not require jury instructions to contain any specific language, but they must convey both that the accused is presumed innocent until proved guilty and that the accused may be convicted only upon proof beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 5….) When reviewing the correctness of reasonable doubt charges, the proper constitutional inquiry is “whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard.” (Id. at p. 6.)’ ” (People v. Flores (2007) 153 Cal.App.4th 1088, 1092-1093.)
Analysis
The gist of defendant’s complaint is that, taken together, the challenged passages from CALCRIM Nos. 200, 220, and 222 undermine the reasonable doubt standard by deterring the jury “from considering the absence of potentially available evidence as a contributing factor to its assessment of the facts and in establishing reasonable doubt.” He relies on Justice Mosk’s concurring opinion in People v. Brigham (1979) 25 Cal.3d 283, in which that learned justice observed that “by limiting the jury’s review to ‘the evidence’ [former CALJIC No. 2.90] implies that a doubt not arising from that source cannot qualify as reasonable.” (Id. at p. 298.) Defendant acknowledges that “[r]ecent cases have discussed and rejected certain related arguments but no case has been presented with the updated Brigham argument presented here.”
Defendant’s core argument has been rejected in People v. Rios (2007) 151 Cal.App.4th 1154 (Rios), People v. Westbrooks (2007) 151 Cal.App.4th 1500, People v. Flores (2007) 153 Cal.App.4th 1088, People v. Anderson (2007) 152 Cal.App.4th 919, People v. Ibarra (2007) 156 Cal.App.4th 1174, People v. Campos (2007) 156 Cal.App.4th 1228, and this court’s recent opinion in People v. Garelick (2008) 161 Cal.App.4th 1107.
In Rios, the court considered essentially the same argument that defendant raises here. The court noted that CALJIC No. 2.90 contained similar language referring to the “comparison and consideration of all the evidence,” and had been approved by the United States Supreme Court in Victor v. Nebraska (1994) 511 U.S. 1, 16-17. (Rios, supra, 151 Cal.App.4th at p. 1157.) As Rios explained, “CALCRIM [No.] 220 uses verbs requiring the jury to ‘compare and consider all the evidence that was received throughout the entire trial.’ CALJIC No. 2.90 uses nouns requiring ‘the entire comparison and consideration of all the evidence’ by the jury.” (Ibid.) The Rios court concluded that, like CALJIC No. 2.90, the challenged language of CALCRIM No. 220 informs the jury that its decision must be based on the evidence, and it rejected defendant’s claim that the instruction shifted the burden of proof. (Ibid.)
The contention that CALCRIM No. 220 prohibits the jury from considering the lack of evidence implicating the defendant in the crime in determining his guilt was rejected in Westbrooks. The court held that the sentence in question “merely instructs the jury that it must consider only the evidence presented at trial in determining whether the People have met their burden of proof. In other words, this instruction informs the jury that the People may not meet their burden of proof based on evidence other than that offered at trial.” (People v. Westbrooks, supra, 151 Cal.App.4th at p. 1509.) The court determined it would not have been reasonable for the jury to interpret CALCRIM No. 220 as precluding the jury from considering any perceived lack of evidence in determining the defendant’s guilt. (Id. at p. 1510.)
Similarly, in Flores, the court read the language at issue in CALCRIM No. 220 in conjunction with CALCRIM No. 222 and concluded that “[n]othing about the instructions given implies to the jury that the defendant must adduce evidence that promotes reasonable doubt or that the defendant must persuade the jury of his or her innocence by evidence presented at trial.” (People v. Flores, supra, 153 Cal.App.4th at p. 1093.)
We agree with the analyses of Westbrooks, Rios, and Flores, and likewise find that, viewed in their full context, there is no reasonable likelihood that the jury understood CALCRIM Nos. 200, 220, and 222 in the manner suggested by defendant. CALCRIM No. 220, in particular, makes it clear that it is the People’s burden to prove guilt beyond a reasonable doubt from the evidence adduced at trial. It also clearly states that if the evidence adduced at trial does not convince the jury of the defendant’s guilt, it must acquit. In our view, it is implicit in these two concepts that reasonable doubt may be engendered by the absence of proof. Justice Mosk’s concurrence in Brigham does not persuade us differently. Therefore, the trial court did not err in giving such instruction to the jury.
CONCLUSION
The trial court did not err in admitting evidence of the shooting at the Lang residence. Any error in restricting defense counsel’s cross-examination of the witness Bryan Lang was harmless beyond a reasonable doubt. CALCRIM Nos. 200, 220, and 222 do not undermine the reasonable doubt standard and are not unconstitutional.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.
• What was the witness’s behavior while testifying? [¶] … [¶]
• Was the witness’s testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided?
• What was the witness’s attitude about the case or about testifying?
• Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony?
• How reasonable is the testimony when you consider all the other evidence in the case?”