Opinion
H031992.
7-23-2009
THE PEOPLE, Plaintiff and Respondent, v. JACOB TOWNLEY HERNANDEZ, Defendant and Appellant.
Not to be Published in Official Reports
After a jury trial defendant Jacob Townley Hernandez (Townley) was convicted of premeditated attempted murder, in violation of Penal Code sections 187, subdivision (a), and 664. The jury also found true the allegations that Townley had personally used a gun and had personally inflicted great bodily injury in committing the crime. (Pen. Code, § 12022.53, subdivision (c); § 12022.7, subd. (a).) On appeal, he raises numerous issues bearing on his right to consult with counsel, admission of statements made by witnesses in police interviews, prosecutor misconduct, improper judicial comments, admission of gang evidence, and jury instructions. He further challenges the denial of his pretrial motion to suppress evidence obtained as a result of his detention. We will affirm the judgment.
I. Background
Seventeen-year-old Townley was accused by information with attempted murder, committed with three accomplices: 18-year-old Jose Ruben Rocha, 16-year-old Jesse Carranco, and 18-year-old Noe Flores. The charges arose from the shooting of Javier Zurita Lazaro around 9:00 p.m. on February 17, 2006. In a telephone call at about 7:00 p.m. that night, Townley asked Flores to "do a ride." Flores drove his 1992 white Honda Accord to pick up Townley and his girlfriend, Amanda Johnston, in Santa Cruz. Once in the car, Townley showed Flores a small black handgun, which Flores handled and returned to Townley.
Townley directed Flores to drive to Watsonville, where they picked up Carranco (known as "Little Huero") and Rocha (known as "Listo"), whom Flores had not met before. Townley was wearing Peoples Exhibit 23, a red and black plaid flannel jacket, which Johnston had given him as a gift. Carranco wore a red hooded sweatshirt; he had four dots tattooed on his knuckles, signifying his association with the Norteno gang. Flores wore black sweatpants, a white T-shirt, gloves, and a black zip-up hooded sweatshirt. Rocha wore a black flannel jacket with white in it.
The group then drove back to Santa Cruz, dropping Johnston off before heading downtown. They went to an apartment on Harper Street where Anthony Gonzalez lived. About 20 minutes later, the four drove toward the Ocean Terrace apartments, located at the corner of Merrill Street and 17th Avenue in an area known as Sureno gang territory. As they were moving down 17th Avenue, they saw Javier Lazaro on the sidewalk across the street, walking back to his apartment at the Ocean Terrace complex. Lazaro, aged 29, was not associated with any gang, but the sweatshirt he wore was blue, the color associated with the Surenos. Carranco told Flores in a "[k]ind of urgent" voice to turn around and pull over, and Flores did so. Grabbing a T-ball bat that Flores kept in the front passenger area, Carranco jumped out of the car, along with Townley and Rocha. Flores waited in the drivers seat with the engine running. He heard what sounded like firecrackers; then the three others ran back to the car and Carranco told him "urgently" to go. Flores drove away rapidly with his passengers and followed Carrancos directions back to Gonzalezs apartment.
Lazaro testified that as he was walking back to his apartment he heard three or four voices from inside Floress car, and then someone yelled, "Come here." He thought it was directed at someone else, so he continued walking without turning around. Just as he reached the parking lot of the apartment complex, he saw the group get out of the car and run across the street toward him. They asked him whether he was Norteno or Sureno. At that point Lazaro was frightened and ran, until he felt something push him to the ground. Lazaro received five gunshot wounds, including a fractured rib and a bruised lung. Two bullets remained in his body.
Lazaro did not see who shot him, but Ginger Weisel, Lazaros neighbor, was in the parking lot when Lazaro walked away from the group. She heard them call out "fucking scrap" and ask where Lazaro was from before seeing one of them shoot Lazaro six to eight times. Lazaro fell after about four shots. Weisel recalled that the shooter was about five feet, nine inches tall and wore a red and black plaid Pendleton shirt. Weisel called 911 from her apartment and returned to help Lazaro.
One of the detectives who investigated the case testified that Townley was about five feet, seven inches. Carranco was about five feet, six inches; and Rocha, about five feet, nine inches.
David Bacon was driving on 17th Avenue when he saw Floress car parked in a no-parking zone. He saw what appeared to be two Latino males of high school age, about five feet 10 inches tall. Seconds later he heard snapping sounds and saw one of the group standing in a "classic shooting position," holding a gun. He heard a total of five or six shots from what appeared to be a small-caliber gun. Bacon had the impression that the shooter wore a plaid jacket, which could have been Peoples Exhibit 22. The second man appeared to be a lookout. Bacon then saw two people run back to the car, which sped away. He parked his car, called 911, and returned to help Lazaro, who was lying on the ground with two women tending to him. Emergency personnel arrived within a minute after the last shot.
Susan Randolph stepped outside her home on 17th Avenue when she heard the gunshots. She described the three as young Latinos between 16 and 20 years old, ranging from five feet, six inches to five feet, nine inches.
Julie Dufresne was driving on 17th Avenue with Jeanne Taylor when she heard popping noises that sounded like fireworks, followed immediately by three people running across the street in front of her car. They were all about her height, five feet nine or 10 inches, or probably shorter, and they appeared to be between 15 and 20 years old. One wore a thin, red and black plaid flannel jacket.
Taylor thought there were five popping sounds, followed by the "three young men" running across the street in front of the car. One of them was less than five feet, five inches and wore what looked like a plaid Pendleton shirt in black and red. He appeared to be staggering as if he were drunk or "having difficulty with his coordination." The other two were taller; one wore a white and black plaid shirt, Peoples Exhibit 22, and the other a hooded sweatshirt. When they reached the white car, one went to the backseat on the drivers side, and the other two went around to the passenger side. Taylor thought that Peoples Exhibit 23 looked like the red and black shirt the "shorter person" had been wearing; Dufresne "couldnt say for sure."
Randi Fritts-Nash was one of the teenagers drinking at the Harper Street apartment. Sitting in Gonzalezs bedroom with five others, she heard a car pull into the parking lot, followed by a couple of knocks at the window. Gonzalez went to the window and then left the room. Before he left Fritts-Nash heard the anxious voices of two people outside, one of whom said the words "hit" and "scrap."
When Gonzalez reappeared, Townley and the other three were with him. Townley was wearing a red and black plaid jacket, Peoples Exhibit 23. Fritts-Nash heard Townley say something to Gonzalez about Watsonville Nortenos. She also saw Townley pull a small handgun out of his pocket and wipe off the prints with a blanket. Townley moved the gun several times from one pocket to another, saying, "I need to hide this gun." He also told her he was "looking at 25 to life." Rejecting Fritts-Nashs suggested hiding place, Townley put the gun in his shoe and a small black velvet bag of bullets into his other shoe. Townley told her to cross her fingers for good luck. Fritts-Nash asked him if he had shot someone; his head movement indicated an affirmative answer.
Townley and Carranco were tried together as adults under Welfare & Institutions Code section 707, subdivision (d)(2). Before trial both Flores and Rocha entered into plea agreements in which the prosecution would reduce the charges in exchange for their declarations under penalty of perjury. Flores thereafter pleaded guilty to assault with a firearm subject to a three-year prison term, and the prosecutor dismissed the attempted murder charge against him. Rocha pleaded guilty to assault with force likely to produce great bodily injury, with an expected sentence of two years.
The jury found Townley guilty of attempted premeditated murder and found the Peoples allegations of firearm use and great bodily injury to be true. (Pen. Code, § 12022.53, subds (b), (c), (d); § 12022.5, subd. (a); § 12022.7, subd. (a).) On September 12, 2007, he was sentenced to life in prison with the possibility of parole for the attempted murder, with a consecutive term of 25 years to life for the section 12022.53 firearm enhancement.
II. Discussion
A. Issues Related to Witness Declaration
1. Restriction on Attorney-Client Discussion of the Flores Declaration
The guilty pleas in Floress and Rochas cases were taken in closed proceedings. At Floress hearing the prosecutor expressed concern that without his declaration Flores might testify that he was the one with the gun, thus undermining the prosecutions case against Townley. The court subsequently affirmed that the purpose for the written statements "was so that having entered a plea, they could not turn around and tell a totally different story without being subjected to impeachment."
At Floress plea hearing the prosecutor stated that Flores would be permitted to serve his sentence out of state "because he was previously stabbed in the jail. There are very serious concerns about his physical well-being." This was not the rationale she articulated in justifying the declarations, however.
Rochas declaration stated that he understood that he had "to tell the judge in open court and under oath what I myself did on February 17, 2006." In Floress declaration, on the other hand, he stated: "I understand that I have to tell the judge in open court and under oath that the contents of this declaration are true." He also stated, "I do understand that I may be called as a witness in any hearing related to the events that transpired on February 17, 2006."
At each change-of-plea hearing, the court ordered the declaration to be filed under seal, to be opened only if the prosecution called him to testify about any of the matters covered in the declaration. Defense counsel were permitted to look at the document, but they were "prohibited from discussing the contents or the existence of the document with their client or any other person." Defense counsel also were not permitted to have a copy of the declarations. Thereafter, the prosecution waived this last restriction and provided a copy to the defense.
Counsel for Townley and Carranco were unsuccessful in moving to withdraw the order not to discuss the contents or existence of the document with their clients. At a hearing from which the defendants were excluded, the court reasoned that it would be improper to rescind the order without Floress and Rochas counsel being present. The court did advise defense counsel that if the witnesses testified inconsistently with their statements, then the sealing order "would be undone" and counsel would be free to cross-examine them with the declarations.
At trial, the defense attorneys had both a copy of Floress declaration and a transcript of his change-of-plea hearing. They remained under orders not to show the declarations to their clients, but they were permitted to use the documents for cross-examination. The court made it clear that Floress declaration was sealed for his protection.
During Carrancos cross-examination of Flores, the prosecutor successfully objected to defense counsels reading the title of the document. The court also sustained some of the prosecutors objections because they were "questions about things that werent in the document . . . suggesting to the jury that wed intentionally omitted facts. And thats misleading." Carrancos counsel tried to ask Flores about the requirement that he sign the declaration in order to obtain the three-year sentence; again the prosecutors objection was sustained, as was a question about Floress methamphetamine use on the night of the shooting. Eventually the trial court took judicial notice of the fact that the declaration was part of the plea bargain and accordingly instructed the jury.
On appeal, Townley contends that the courts restrictions before trial and during examination of Flores violated Townleys Sixth Amendment right to consult with his attorney. He relies on Geders v. United States (1976) 425 U.S. 80, 88-91 (96 S.Ct. 1330) and its progeny to support his belief that this was structural error for which a showing of prejudice is not required. (See, e.g., Perry v. Leeke (1989) 488 U.S. 272, 278-279 ["a showing of prejudice is not an essential component of a violation of the rule announced in Geders"].)
"A defendant in a criminal trial is guaranteed not just the right to be represented by counsel but the right to the effective assistance of counsel. . . . Accordingly, the court may not properly restrict the attorneys ability to advise the defendant unless the defendants right to receive such advice is outweighed by some other important interest." (Morgan v. Bennett (2d Cir. 2000) 204 F.3d 360, 365, citing United States v. Cronic (1984) 466 U.S. 648, 654; Strickland v. Washington (1984) 466 U.S. 668, 685-86.) In Geders, the United States Supreme Court rejected a trial courts order prohibiting the defendant from conferring with his attorney during a 17-hour overnight recess, "when an accused would normally confer with counsel." (425 U.S. at p. 91.) The trial courts concern over the possibility of counsels coaching his client before the defendant testified was insufficient to justify the precautionary order in light of the ways that contingency could have been prevented, such as skillful cross-examination by the prosecutor or the courts ordering the examination of the defendant to continue without interruption. (Id. at pp. 89-91.)
The restriction here was very different from the broad one discussed in Geders. There the defendant was not allowed to talk to his attorney "about anything." (Id. at p. 83.) Here, by contrast, there was no complete denial of Townleys access to his attorney; nor was there any prohibition on discussions between them about Floress anticipated testimony. "[T]he court should not, absent an important need to protect a countervailing interest, restrict the defendants ability to consult with his attorney, but that when such a need is present and is difficult to fulfill in other ways, a carefully tailored, limited restriction on the defendants right to consult counsel is permissible." (Morgan v. Bennett, supra, 204 F.3d at p. 367.)
The interest the trial court sought to protect in this case was the safety of a prosecution witness. The restriction was confined to discussions about the declaration, but the counsel and client were nonetheless able to confer about the version of events Flores had given, including the entire interview with the police. To the extent that this version differed from the account in the declaration, cross-examination was permitted. Indeed, the key fact that presented such a discrepancy was whether it was Flores or Townley who wore Peoples Exhibit 23, the black and red plaid flannel jacket. No one suggested, however, that Flores was the shooter or even left the car that night. During closing argument Townleys attorney agreed that the shooter wore Peoples Exhibit 23. His theory was that Townley later handled the shirt and thereby transferred gun residue to his hands. Moreover, counsel for Carranco directed a portion of his cross-examination to Floress inconsistency without curtailment by the court.
In his declaration Flores first stated that he had been wearing a "red and black Pendleton shirt" that night. He later stated that Townley was wearing a flannel shirt with red in it; and he gave the same description of the shirt worn by "Listo" (Rocha).
Where witness intimidation threatens the integrity of the judicial process as well as the safety of the witness, a gag order is not necessarily a Sixth Amendment violation. (Morgan v. Bennett, supra 204 F.3d at p. 367.) Furthermore, although we agree with Townley that the Morgan court imposed a more limited restriction than was ordered in this case— the attorney was not to reveal the fact that the witness was to testify the next day— nevertheless we are convinced that the prohibition on sharing the content of Floress declaration was carefully tailored so as not to impair Townleys Sixth Amendment rights or his ability to receive a fair trial. The United States Supreme Court has emphasized that "the right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated." (United States v. Cronic, supra, 466 U.S. at p. 658 ; Lockhart v. Fretwell (1993) 506 U.S. 364, 368-369 .) Finding no "actual breakdown of the adversarial process," we must reject Townleys assertion of error. (United States v. Cronic, supra, 466 U.S., at pp. 657-658.)
2. Testimony by Flores to a Particular Version of Facts
"A prosecutor may grant immunity from prosecution to a witness on condition that he or she testify truthfully to the facts involved. (People v. Green (1951) 102 Cal.App.2d 831, 838-839 . . . .)" (People v. Boyer (2006) 38 Cal.4th 412, 455.) "[A]n agreement [that] requires only that the witness testify fully and truthfully is valid, and indeed such a requirement would seem necessary to prevent the witness from sabotaging the bargain." (People v. Fields (1983) 35 Cal.3d 329, 361.) "But if the immunity agreement places the witness under a strong compulsion to testify in a particular fashion, the testimony is tainted by the witnesss self-interest, and thus inadmissible. (People v. Medina (1974) 41 Cal.App.3d 438, 455 . . . .) Such a `strong compulsion may be created by a condition "that the witness not materially or substantially change her testimony from her tape-recorded statement already given to. . . law enforcement officers." (People v. Medina, supra, 41 Cal.App.3d at p. 450.)" (People v. Boyer, supra, 37 Cal.4th at p. 455.)
In this case Townley contends that Floress declaration compelled him to testify to the version of facts contained in that document or risk being prosecuted for perjury and losing the benefit of his plea bargain. That compulsion, Townley insists, "tainted" Floress testimony, resulting in error that was prejudicial in light of the importance the prosecutor placed on this testimony. We disagree. In the declaration Flores averred that the statements he was making in the document were "true under penalty of perjury." He had discussed his statement with his attorney and had not been threatened or offered an agreement to testify in exchange for telling the truth in the declaration, aside from the plea agreement his attorney had negotiated. Floress understanding that he would be expected to — indeed, "have to"— tell the judge that he had made truthful statements in the declaration did not nullify his claim in the declaration itself that he was telling the truth. The trial court properly interpreted Floress statement to mean that if he testified, he must do so truthfully. Furthermore, we have taken judicial notice of a subsequent modification of Floress declaration. The challenged sentence was replaced with the following: "I understand that I have to acknowledge to the Judge in open court and under oath that the contents of this declaration are true at the time of the entrance of my plea." Also added was Floress handwritten statement, "I understand if called as a witness I must tell the truth." Flores was cross-examined on these changes at trial.
In these procedural circumstances we find no error. The declaration at issue does not compare to People v. Medina, supra, 41 Cal.App.3d at page 450, where accomplice witnesses were given immunity on the condition that they not "materially or substantially" alter their testimony from the recorded account they had given to the police. Also clearly distinguishable is People v. Green, supra, 102 Cal.App.2d at pages 838-839, where the accomplice was promised dismissal of the case against him if his testimony resulted in the defendants being held to answer for the same charges. It was not improper to require the witness to tell the truth in court.
3. Earlier Versions of Witness Declarations
Townley next contends that he should have been afforded the opportunity to inspect previous versions of Floress and Rochas declarations, which they had declined to sign, along with correspondence between the prosecutor and Flores about factual scenarios Flores refused to confirm. In Townleys view, these materials were discoverable under section 1054 and its predecessor authority, People v. Westmoreland (1976) 58 Cal.App.3d 32. In Westmoreland, the court held that the prosecutor must disclose to the defense "any discussions he may have had with the potential witness as to the possibility of leniency in exchange for favorable testimony even though no offer actually was made or accepted." (58 Cal.App.3d at pp. 46-47.) Townley further argues that the withholding of these "discussions of leniency" denied him his constitutional rights to due process and confrontation of witnesses.
The trial court expressed the view that prior drafts of the witnesses plea agreements were "not evidence of anything." It did, however, query whether an unsigned version might allow the jury to find a discrepancy worth exploring at trial. The prosecutor maintained that this was work product, a "creature of [her] head" which was not discoverable, and the People adhere to this position on appeal. After extensive discussion among counsel and the court, the court reiterated its opinion that an unsigned declaration was not evidence of anything and that no obligation to produce it arose under Brady v. Maryland (1963) 373 U.S. 83 (83 S.Ct. 1194).
We find no error in this ruling. Even discounting the Peoples position that the prosecutors suggested version represented her work product, we nonetheless agree with the court that the unsigned declaration was not relevant or material evidence. This case does not present facts similar to those in Westmoreland, where the prosecutor remained silent while the witness falsely testified that he had not been offered the opportunity to plead guilty to a lesser offense. Here there was no attempt to mislead the jury or any arrangement that was not disclosed to the defense. Flores was not promised leniency beyond the negotiated disposition of his case. And here the witness did not agree to any version of the document except the one he signed. That was the relevant evidence that was material to Floress credibility, and on that document defense counsel were permitted to cross-examine the witness.
Furthermore, even if any prior draft was material evidence favorable to the defense, any error in excluding it was harmless beyond a reasonable doubt. (Cf. People v. Phillips (1985) 41 Cal.3d 29, 48 [failure to disclose agreement between prosecution and witnesss attorney but not communicated to witness harmless error].) The jury was fully informed of the details of the plea bargain between Flores and the prosecution. He was cross-examined on the discrepancy between his testimony and his declaration, including the statement in the declaration that he had been wearing a "red and black Pendleton shirt" on the night of the shooting. In addition, the court instructed the jury that Floress declaration was part of his plea agreement with the prosecution. The withholding of the earlier versions offered to Flores was not prejudicial to Townley.
B. Exclusion of Defendants during Discussions of Declarations
Townley next claims that his exclusion from hearings at which the declarations were discussed violated his constitutional right to be present at critical stages of the proceedings against him. "The rule is established that a defendant has a federal constitutional right that emanates not only from the confrontation clause of the Sixth Amendment but also from the due process clause of the Fourteenth Amendment to be present at any stage of the criminal proceedings `"that is critical to its outcome if his presence would contribute to the fairness of the procedure." [Citations.]" (People v. Marks (2007) 152 Cal.App.4th 1325, 1332-1333.) It is also settled, however, that "a defendant does not have a right to be present at every hearing held in the course of a trial. `During trial, a defendant is not entitled to be personally present at the courts discussions with counsel occurring outside the jurys presence on questions of law or other matters unless the defendants presence bears a reasonable and substantial relation to a full opportunity to defend against the charges. [Citation.] A defendant claiming a violation of the right to personal presence at trial bears the burden of demonstrating that personal presence could have substantially benefited the defense. [Citation.] " (People v. Price (1991) 1 Cal.4th 324, 407-408.)
Townley has not met that burden. He has not shown that his physical presence would have contributed to his attorneys efforts to secure a retraction of the order to withhold the declarations from him. Nor does he offer argument to support the bare assertion that "the error was not harmless beyond a reasonable doubt." Reversal is not required on this ground.
C. Admission of Witness Statements for Impeachment
At trial the prosecution called Anthony Gonzalez and Sarah Oreb, who were among the teenagers at Gonzalezs Harper Street apartment when Townley arrived with Flores, Carranco, and Rocha. Oreb, who was Gonzalezs girlfriend at the time, said that she was "pretty drunk" when sheriffs arrived. To one of the officers, Stefan Fish, however, Oreb appeared to be sober. Several of the teenagers were taken to the sheriffs office for interrogation.
During her first interview by Detective Pintabona, Oreb said she saw the white Honda, a statement she denied at trial. Oreb contributed no further information to Pintabona; she swore "on [her] life up and down" that she did not hear anyone say what Pintabona quoted four others as saying, that the visitors to Gonzalezs apartment had "just shot some scraps." Even when Pintabona insinuated that she could be treated as an accessory, she insisted that she was telling him the truth and that he was "badgering " her to get her to lie. While sitting with the others in the hallway, Oreb saw Gonzalez being taken into custody. A short time later, angry and frustrated, she was re-interviewed. This time Oreb said she heard the words "hit" or "scrap." At trial, she explained that she had told that to Pintabona only so that she could go home. By that time it was almost 7:00 a.m.; she had not slept and had not eaten since the evening.
Stefan Fish, a sergeant by the time of trial, testified that the day after the shooting, Oreb contacted him by telephone and agreed to meet with him because she "felt bad" that she had not previously told the investigator what she had heard the night before. Oreb said that she was at the window in Gonzalezs apartment when she heard one of the people outside say that a "Scrap got hit."
At trial Oreb recanted much of her statement to the police. During examination as a hostile witness by the prosecution, she denied hearing the words "I hit a scrap" spoken outside the window. She testified that the police took her and her friends to the police station, where she told the officers that she had not heard anything outside the window. The police did not believe her, and they kept threatening to lock her up "just like [her] boyfriend," so she eventually lied and told the officer what he wanted to hear. Oreb denied telling Sergeant (then Deputy) Fish that she felt bad about lying the day before; she initiated the contact only to ask him why Gonzalez had been arrested.
In light of Orebs adamant retraction, the prosecutor sought to play for the jury a recording of the first police interview between Officer Pintabona and Oreb. Over defense objections, the court allowed the evidence, finding that Orebs trial testimony was "a fabrication . . . It was really shocking." Based on a draft prepared jointly by Townleys counsel and the prosecutor, the trial court gave the jury a cautionary instruction about the use of that evidence. The court explained that any opinion, conclusion, or summary of the facts by the officer was an interviewing technique which could not be used as evidence of either defendants guilt. The jury was admonished to "totally discount what the police officer says," particularly those statements that the officers "know things" about the defendants. Instead, the jurors were permitted to weigh what they heard in the taped interview against what Oreb had said on the witness stand "about how that interview was conducted."
On appeal, Townley contends that Orebs incriminating statements should not have been admitted because they were coerced: She was only 16 years old, she was intoxicated, she was deprived of food and sleep for six hours, and she was threatened without Miranda warnings before she finally told the officer what he wanted to hear to avoid being arrested.
The evidence on these points was not so straightforward, however. Oreb did not appear to be inebriated to Deputy Fish when he arrived at the apartment. At trial Oreb said she arrived at 1:00 or 2:00 in the morning; yet during the interview—which appears to have lasted between 30 minutes and an hour— Pintabona mentioned that it was 3 a.m. After listening to the CD recording, Oreb conceded that she was not threatened, but only felt threatened. She also admitted that she was not threatened during the second interview when she told the detective "what he wanted to hear." The trial court found that "Orebs statements about what happened during the interview were quite consistent with what happened during the interview." The transcripts of her trial testimony and the recorded interview support this factual conclusion. Oreb resisted the officers attempt to persuade her to accede to his account of the statement about shooting a "scrap." She admitted that there was no badgering or threats in the second interview, at which she voluntarily admitted hearing the reference to "scraps." And even if the second interview was a product of the earlier pressure, the effect did not carry over to the contact with Deputy Fish the next day, which she initiated by asking specifically for him. Oreb told the deputy that she had heard the words "hit" and "scrap," and that she felt bad for not having admitted this earlier. There is no evidence that this disclosure was precipitated by trauma or the fear of arrest; Oreb herself denied having repeated those words and explained that she had contacted the deputy only to discuss Gonzalezs arrest.
Additionally, almost six weeks after the shooting, while Gonzalez was out of custody, Oreb met with Detective Montes, who investigated gang-related cases for the district attorneys office. Montes showed a photo spread to Oreb. In the course of their meeting, she told him that at the window of Gonzalezs apartment she had overheard "somebody say they hit a scrap." Oreb was not threatened with custody, nor was Gonzalez in custody at that time. She mentioned the statement three times, and her demeanor was "[c]alm, patient, soft spoken[, and] pleasant." She was cooperative, "[j]ust fine."
Finally, in none of the interviews did she attribute the "scrap" reference to Townley. Taking all of these circumstances into account, we find no conceivable prejudice from Orebs statements. Any error in admitting the assertedly coerced statement was harmless beyond a reasonable doubt. (Cf. People v. Cahill (1993) 5 Cal.4th 478, 510 [adopting the federal standard prejudice standard for evaluating admission of defendants coerced confession]; Arizona v. Fulminante (1991) 499 U.S. 279, 306-312 ; see also People v. Lee (2002) 95 Cal.App.4th 772, 789 [coerced identification of defendant not harmless beyond a reasonable doubt where other evidence of defendants guilt insufficient].)
When police officers arrived at the Harper Street apartment, they saw that Gonzalez was drunk and was being held up by Oreb. Sergeant Sulay thought Gonzalez was "probably still under the influence" when he was at the station being interviewed, an impression reinforced by Gonzalez at trial. During the interview, however, he said he did not think he was still drunk.
The transcript of the interview with Gonzalez reflected his persistent denials of knowledge. Eventually, the interviewer arrested Gonzalez "for accessory to attempted murder" because he was "covering up." At that point he was read his Miranda rights. That interview lasted about 45 minutes in the early morning of February 18, 2006. In a second conversation with Detective Sulay, Gonzalez offered the statement that Townley had come to his house and said, "We beat up some scrap," and shortly afterward the police showed up and started "harassing" him and the rest of the group. At trial Gonzalez said that he did not recall making this statement.
Townley contends that Gonzalez, like Oreb, was coerced into giving the inculpatory statement. We disagree. The first interview was not unduly prolonged, nor, contrary to Gonzalezs claim at trial, did the interviewer tell him what he wanted Gonzalez to say. The evidence of Gonzalezs degree of inebriation was conflicting. The bare fact that the interviewer advised Gonzalez that if he withheld information he could be considered an accessory after the fact did not in itself make his later statement involuntary. "There is nothing improper in confronting a suspect with the predicament he or she is in, or with an offer to refrain from prosecuting the suspect if the witness will cooperate with the police investigation. More is needed to show that testimony is the inadmissible product of coercion . . . ." (People v. Daniels (1991) 52 Cal.3d 815, 863.) Unlike the defendant in People v. Lee (2002) 95 Cal.App.4th 772, on which Townley relies, neither Oreb nor Gonzalez was threatened with an accusation of the charged crime itself. Our independent review reveals no coercion in violation of Townleys due process rights.
D. Prosecutor Misconduct
Townley next contends that the prosecutor overstepped the bounds of proper advocacy in a number of ways, thus engaging in misconduct that was individually and cumulatively prejudicial. The People respond first that Townleys attorney failed to preserve the issue as to some of the asserted instances of misconduct by failing to object. As to others, they maintain that the act was not misconduct at all. We examine the parties positions as to these claims first by reviewing the context in which they occurred.
We deny Townleys request that we take judicial notice of a prior unpublished opinion discussing conduct by this prosecutor.
1. Comments on Witness Credibility
During opening statement the prosecutor told the jury that the police sergeant who interviewed Townley at Harper Street "felt that he was holding back and not being entirely truthful. The sergeant thought that maybe that was because they were in a Norteno affiliated house and he was investigating a shooting by three or four guys wearing red who shot at another guy in a blue sweatshirt. [¶] So the decision was made to take them to the Sheriffs Office for an interview to see if in a different kind of environment he might be more forthcoming." When the jury had been dismissed for the day, Townleys attorney objected and moved for a mistrial, reminding the court that during in limine motions he had opposed the prosecutors request to call a gang expert. In that opposition counsel had expressed the concern that the expert might suggest that a witness was lying to help the defendant or that a former codefendant testifying for the prosecution was credible. The court had allowed the gang expert to testify, but only as to matters the jury had heard from other witnesses. The expert was not to "address issues like snitch and rat and veracity and credibility. . . unless its become apparent from the testimony of . . . witnesses that theres a basis for that needing to be explained to the jury in some way. [¶] But he cannot be put in a position where he is either vouching for the credibility of your witnesses or . . . essentially negatively vouching for them in any way . . . ."
The trial court denied the mistrial motion, noting that the "no vouching" order pertained to a different situation: "What was referred to here was actually the policemans impression of behavior that he saw from a person that he was interviewing at that time," in contrast to the pre-trial discussion of an opinion of a witnesss credibility because he or she was a "snitch."
In examining Sarah Oreb, the prosecutor attempted to bring out the inconsistencies between her trial testimony and her prior statements to the police. Oreb was permitted to describe the officers tactics in trying to persuade her to admit that she had heard Townley say he had "hit a scrap." The defense did not object as Oreb continued with this testimony and denied that Sergeant Fish had accurately reported her voluntary statement to him. However, at one point the prosecutor, having repeatedly attempted to elicit Orebs admission that she had heard the "hit a scrap" statement, said, "I suppose you wouldnt be surprised to hear I dont believe [you]. Which is why I am continuing to ask the question." Townleys counsel immediately objected. The objection was sustained, and the court admonished the jury to disregard the remark. The prosecutor then asked Oreb, "If theres a recording of your interview with both Deputy Pintabona, and a subsequent interview with Detective Henry Montes, they edited those recordings?" Counsels objection to this argumentative question was also sustained.
Further into her testimony, Oreb was insisting that she had lied every time she said she had heard the "hit a scrap" statement. She maintained that it was not acceptable to lie, which was why she was then telling the truth. The prosecutor asked, "Okay. So recently, within the last two weeks, you decided that you shouldnt lie? [¶] [Oreb]: No, not within the last two weeks. [¶] [The prosecutor]: When did you decide you werent going to lie? . . . [¶] [Oreb]: I dont know. [¶] [The prosecutor]: When did it become important to you not to lie? [¶] [Oreb]: Its always been important to me not to lie. [¶] [The prosecutor]: Apparently it wasnt so important each time you talked to somebody in law enforcement?" Again the defense objected to the question as argumentative, but this time the court overruled the objection. However, just before playing the recording of the first interview, the prosecutor asked why Oreb had lied about hearing a knock at Gonzalezs apartment window. Oreb recounted how she had merely told the interviewer what he wanted to hear. The prosecutor asked, "Did it occur to you that he didnt believe you?" Defense objections were sustained as argumentative and calling for speculation.
Oreb also testified that she used Townleys name and the words about hitting a scrap because that was what she had heard from others. Defense objections were raised on hearsay grounds. The trial court overruled one objection on the ground that it went to credibility. When defense counsel affirmed that the questioning was relevant to credibility only and not for the truth, the court explained to the jurors that as to these questions about the source of Orebs information, they could use Orebs testimony not for the truth of what other people said but only to determine whether Oreb was telling the truth about her recollection.
Anthony Gonzalez also recanted the statement he had made about the shooting in police interviews. Like Oreb, he said he did not remember what had happened that night and had simply told the police what they wanted to hear because they had arrested him. Gonzalez said he kept telling the detectives what he knew and they kept telling him it wasnt true. Later, the prosecutor asked Detective Ramsey about a subsequent interview with Gonzalez. Ramsey testified that the purpose of the second interview was to "see if hed be a little bit more up front and cooperative" with the officers. The prosecutor then asked, "And did you find that he was a little bit more forthcoming?" Townleys attorney objected to the question as irrelevant, and the objection was sustained.
"The standards governing review of misconduct claims are settled. A prosecutor commits misconduct under the federal Constitution when his or her conduct infects the trial with such `"unfairness as to make the resulting conviction a denial of due process." [Citations.] Under state law, a prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct even when those actions do not result in a fundamentally unfair trial. (People v. Frye (1998) 18 Cal.4th 894, 969 . . . .) In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review. (People v. Alfaro (2007) 41 Cal.4th 1277, 1328 . . . .)" (People v. Hawthorne (2009) 46 Cal.4th 67, 90; People v. Lopez (2008) 42 Cal.4th 960, 965-966.)
Townley contends that "clear misconduct" occurred when the prosecutor commented on Orebs lack of credibility. The court sustained the objection to that remark, however, and admonished the jury accordingly, thus averting any prejudice. The reference to the police impressions during opening statement and the questioning about Orebs lies likewise created no reversible misconduct. The court properly ruled that the opening statement did not violate the in-limine order; and the court sustained defense counsels objections to argumentative questioning of Oreb with only one exception. That exception could not have had a significant impact on the jurors perceptions of the case, as it only emphasized what they already knew, that Oreb had lied during questioning by the police. The subsequent jury instruction to ignore any question to which an objection was sustained reinforced the courts admonition and thus prevented any prejudice. It is also noteworthy that no requests to admonish the jury followed the objections to the prosecutors questions.
Otherwise, the examination of Oreb proceeded without objection on the ground now asserted. Townley has waived the issue as to these questions, and does not present analysis to support the bare assertion of ineffective assistance of counsel. In any event, it is clear that Orebs insistence that she had lied to the police supported Townleys defense. Thus, allowing the prosecutor to elicit this testimony was justified as a tactical choice by the defense. Failing to object to asserted prosecutorial misconduct does not warrant reversal on appeal for ineffective assistance of counsel "except in those rare instances where there is no conceivable tactical purpose for counsels actions." (People v. Lopez, supra, 42 Cal.4th at p. 972.)
As to the prosecutors examination of Gonzalez, the only objections made by the defense were for hearsay, leading, and irrelevancy. The recordings of both Oreb and Gonzalez were allowed over the objection that they did not contain prior inconsistent statements. The court properly ruled in both cases that the witnesses had fabricated their testimony—in Orebs case, that she heard nothing at the window, and in Gonzalezs case, that he did not remember anything that had happened that night.
2. References to Townleys Bad Character
a. Involvement in previous criminal activity
Without objection from the prosecution the court granted a defense motion in limine to preclude evidence that Townley had a juvenile record and was on juvenile probation at the time of the offense. Also precluded without objection was evidence or allegations that Townley might have been involved in other shooting incidents. Nevertheless, early in direct testimony by Detective Phillips, the prosecutor asked him what he had been asked to do on February 18, 2006. He answered that he had been asked to assist another detective in conducting a probation search, and he started to recite the address when both defense attorneys and the prosecutor interrupted with objections. After conferring privately with the witness, the prosecutor resumed her examination with the question, "You did a probation search first thing in the morning on a different case; is that right?" The witness replied in the affirmative, and when asked whose house he searched, he named the people who lived there, including defendant Townley.
Later, during testimony by Scot Armstrong, a ballistics expert, he mentioned two sheriffs numbers corresponding to two cases. Subsequently he was referring to "fired cases" identified as "REG-1, number 1 through 4. REG-110. And 131MH-001." The prosecutor directed the witnesss attention to the five "REG" casings submitted when Townleys attorney obtained a sidebar conference. After completion of Armstrongs examination, both defense attorneys moved for a mistrial. The prosecutor acknowledged the in-limine ruling but noted that she had directed the witness not to mention any other investigations. "Clearly, he forgot." The slip, the prosecutor stated, "certainly was not anything intentional." Moreover, she argued, the jury was not likely to have understood what the witness was referring to by "SCD" numbers and different casings. The court agreed that "there was not enough there that the jury could possibly infer that there were other investigations going on or there were other bullets or casing being investigated beyond whats in this case."
On appeal, Townley contends that the prosecutor engaged in "highly prejudicial misconduct" by eliciting information about his probation status and other shootings. He maintains that not only was the mention of a probation search improper, but the prosecutor "compounded the problem" by informing the jury "both that Townley was on probation, and that he was a suspect in a different case."
While "[i]t is misconduct for a prosecutor to violate a court ruling by eliciting or attempting to elicit inadmissible evidence in violation of a court order" (People v. Crew (2003) 31 Cal.4th 822, 839), it is evident from the record that the incipient reference to a probation search occurred because Phillips forgot to avoid mentioning any case but this one. It is true that a prosecutor "`has the duty to guard against statements by his witnesses containing inadmissible evidence, and if a prosecutor `believes a witness may give an inadmissible answer during his examination, he must warn the witness to refrain from making such a statement. " (People v. Earp (1999) 20 Cal.4th 826, 865.) Here, however, the prosecutor did warn the witness not to refer to other investigations; and when he slipped, she interrupted her examination apparently to remind him. As in Earp, "nothing in the record suggests that the prosecutor had a basis for anticipating the response in question by Detective [Phillips]. Therefore, there was no prosecutorial misconduct." (Ibid.)
As to the disclosure of the additional forensic investigation, Townley disputes the Peoples characterization of the disclosures as inadvertent; in his view, it was part of a "demonstrated pattern of ignoring or attempting to evade the trial courts rulings." We find no error in the trial courts ruling, however. As did the trial court, we find the prosecutors brief references to obscure case numbers unlikely to encourage the jurors to speculate that Townley was being investigated for other shooting incidents. She mitigated potential harm by refocusing the witnesss account on the shooting of the night before, relegating the mention of a probation search to an apparently unrelated case. The courts determination that the disclosure was obscure, unintentional, and unlikely to cause prejudice is supported by substantial evidence.
b. Evidence that Townley was Dangerous
Detective Ramsey testified that while Detective Makdessian was transporting Townley to the sheriffs station, Ramsey, who was in the car ahead, received information from Sergeant Sulay that caused him to alert Makdessian to stop the patrol car. The officers asked Townley to step out of the car; then they handcuffed him and examined his shoes. Inside the right shoe was an unloaded pistol; in the left shoe was a bag containing cartridges. During the direct examination of Ramsey, the prosecutor asked him to describe his "degree of alertness" in this encounter. The witness replied, "Extremely heightened." The prosecutor then asked, "Did you feel that your safety was in danger?" The witness answered, "Yes." At that point, however, Townleys attorney objected and moved to strike. The court granted the motion and admonished the jury to disregard the answer. The prosecutors next question, whether Ramsey had his gun out, was answered in the negative; but when she asked why not, his answer— "I didnt want to —" was interrupted by another objection on irrelevancy grounds, which was also sustained.
While Detective Makdessian was describing the same events, he stated that while transporting Townley he received an urgent call from then-Deputy Fish over the car radio, which the detective returned by cell phone. The prosecutor asked, "Did you have a physiological response after you had that phone conversation with Sergeant Fish?" Defense counsel objected to the question as irrelevant, and the court sustained the objection. After describing Detective Ramseys removal of the gun from Townleys shoe, Makdessian was asked, "Had you ever transported somebody unhandcuffed with a gun before?" He answered, "Never." The prosecutor continued, "Do you anticipate ever doing that again?" Another defense objection to the irrelevant question followed and was sustained.
Sergeant Fish was also questioned about the discovery of the gun. Hearsay and irrelevancy objections were sustained to two questions: about what a witness had told him and about whether Sergeant Sulays telephone call was related to officer safety. Because the question about officer safety was answered ("Very much") before the objection was sustained, the court instructed the jury to disregard the answer.
Townley contends that this line of questioning improperly suggested that Townley was a danger to the officers safety. The questions, however, did not imply that the officers were actually threatened by Townley, nor that their safety concerns were caused by anything other than the knowledge that there was a passenger in the backseat with access to a weapon. In any event, the questions were at worst irrelevant and they provoked objections sustained on that ground. No prejudice resulted from the prosecutors line of questioning about officer safety.
Townley further argues that the prosecutor tried to give the jurors the impression that Flores was in protective custody because the defendants were a threat to him. The prosecutor was permitted to bring out Floress statement that he was in "PC," or protective custody. When the prosecutor asked whether he was in protective custody because he had given a statement to the sheriffs deputies, the objection as speculation was sustained. Then the prosecutor asked, "Who is housed in protective custody?" Objections on multiple grounds followed, and the court suggested that the prosecutor move on to other questions until they could discuss the issue later. After the jury had left for the day, the prosecutor protested that it was important to present the evidence that he had to be housed in protective custody and transported separately because he was a snitch and had negative feelings about that "category." The court pointed out that Flores had said he was not afraid to be there testifying. Following extensive debate on the issue, the court cited the right to a fair trial and sustained the defense objection.
Flores eventually admitted that he did not want to tell the police about what his companions had done the night of the shooting because he did not want to get them in trouble. The prosecutor questioned Flores further about what he thought of people who told the police about crimes others had committed. Her questions about why Flores did not want to tell the police what had happened the night of the shooting were permitted; but the court sustained relevancy objections to her question about what word was used to describe a person who told the police what someone else had done, as well as the questions about what Flores thought about such people. The court overruled the objection to the question whether he wanted to be such a person. Flores said he might get hurt. The prosecutor was not so successful in asking whether Flores felt like a Good Samaritan; he did not have an opinion about whether a person who told the police about a crime was a Good Samaritan, and he did not feel like one when he was talking to the police. The question "Why not" was met with another objection, which was sustained as irrelevant. At that point the court directed the prosecutor to move on to another area, and she did.
The prosecutor later asked Flores whether he had wanted to talk to the police; he said he had not. When she asked why, a defense objection was overruled and Flores simply answered that he had not wanted to get in trouble. Flores explained that he had eventually told the truth to Sergeant Sulay, though he did not like talking to him. The question "Why not?" was again met with an irrelevancy objection, which was sustained. Also sustained were similar objections to the question, "Why did you ultimately tell Sergeant Sulay the truth?" and the question, "What did you think about yourself for [telling Sergeant Sulay what had happened the night before]."
Ginger Weisel, the victims neighbor at the Ocean Terrace apartment complex, testified at length about what she had seen that night. On redirect, the prosecutor asked whether she wanted to be there testifying; she answered that she did not. The prosecutor asked why; and the defense objection ("352") was overruled. The witness responded that she did not "need to be part of this" and did not "want problems." She then was allowed, over objection, to testify that she was familiar with gangs and knew there were Surenos living at the complex.
The jury subsequently heard from Detective Montes, the gang investigator who related Orebs statement that she had "heard somebody say they hit a scrap." Oreb was not threatened with custody, nor was Gonzalez in custody at the time of the detectives interview with her. The prosecutor asked Detective Montes whether it had appeared to him that Oreb "was at all reluctant" to tell him that she did not remember looking out the window, but defense objections were sustained. The prosecutor then asked whether Orebs demeanor had suggested any reluctance or timidity, and another objection was sustained. The jury was instructed to disregard the last two answers, but no answer to either question exists on the record.
When Gonzalez was describing his interview with sheriffs deputies, he was asked whether he was "scared" while talking to them. The court sustained defense counsels objection to the question as irrelevant. Also sustained were questions about whether he remembered contrasting his concern about his freedom "with something else" (irrelevant); whether he had wanted to speak with the police officers (irrelevant), and whether he wanted to be there testifying (asked and answered). Later the prosecutor asked, "Did you feel that, or do you feel now that talking about what happened that night is dangerous for you?" The objection ("irrelevant. 352.") was sustained. Then the prosecutor repeated the question, "Do you want to talk about what happened that night?" The same objection was sustained, along with the courts comment that this question had been asked and answered.
This record reveals that to the extent that the prosecutor sought to portray witnesses as in fear of Townley, she was unsuccessful. Whenever she asked a question that could have suggested an answer revealing fear by a witness, defense counsel interrupted with a timely objection, and if the witness had already answered, the jury was instructed to disregard it. In addition, the jurors were instructed at both the beginning and the end of trial that the attorneys remarks and questions were not evidence; only the witnesses answers were evidence. They also were told that if an objection was sustained, they must ignore the question, refrain from guessing what the answer might have been, and disregard any answer that might have been given. (Cf. People v. Hamilton (2009) 45 Cal.4th 863, 929.) "As a general matter, we may presume that the jury followed the instructions it was given. . . and defendant has failed to supply any persuasive reason to suppose the jury instead would have accepted as evidence the insinuation allegedly implicit in the prosecutors questions." (People v. Prince (2007) 40 Cal.4th 1179, 1295.) Accordingly, no prejudice could have resulted from any improper questions posed by the prosecutor.
3. Comments during Argument to the Jury
a. Appealing to Fear of Gang Violence
Townley next asserts that the prosecutor made "improper comments that preyed upon the jurys fear" during her argument. One of the challenged remarks occurred in the context of the prosecutors discussion of the natural and probable consequences of an assault: "Is somebody almost dying a natural and probable consequence of assaulting a rival gang member in that rival gang member[]s turf? Read about it all the time. You read it about it all the time. Gang fights where somebody ends up dead." At this point Carrancos attorney objected, but the prosecutor maintained that she was only talking about natural and probable consequences. The court cautioned her to be "careful about the intent issue" and overruled the objection. The prosecutor then continued with the point that one has to intend the assault, but "almost being killed [was] a natural and probable consequence" of an attack by a rival gang member.
During her closing argument, the prosecutor used the facts that Lazaro was shot five times and that "there were additional bullets brought" to show that Townley had premeditated and planned to kill the victim. She queried, "Why did he need all those bullets? Why did he need all those bullets? Maybe they were going to go out and do another one. But why, if you dont mean to kill somebody, do you need to have to [sic] all that?" Carrancos attorney objected that "[k]illing is an improper argument," but the objection was overruled.
Townley contends that these comments, together with the questions suggesting that the officers were in danger from the defendants and that the witnesses feared the defendants, "were a blatant plea to the fears and vulnerabilities of the jurors, and were calculated `to induce a level of fear in the jurors so as to guarantee a guilty verdict. " He compares this situation to Commonwealth v. Mendiola (9th Cir. 1992) 976 F.2d 475 (overruled on another ground in George v. Camacho (9th Cir.1997) 119 F.3d 1391), where the prosecutors appeal to jury fears of the defendants dangerousness constituted clear misconduct from which prejudice was "highly probable." (Id. at p. 487.) This case, however, bears no resemblance to Mendiola. There the prosecutors inflammatory argument evoked an image of a dangerous criminal who, if freed, would walk out of the courtroom "right behind" them and retrieve the gun. (Id. at p. 486.) In this case the prosecutors speculation about the defendants intentions on the night of the shooting was a far cry from the clear attempt to evoke fear and alarm among the Mendiola jurors, and the reference to gang fights was confined to her discussion of the natural and probable consequences of a gang-motivated assault.
The Mendiola prosecutor told the jury, "Now as I said, a lot of people are interested in your decision. . . . Everyone in Saipan is interested. Thats why there are so many people in the courtroom. The people want to know if they are going to be forced to live with a murderer. [¶] Your job is to worry about Mr. Mendiola. And when I say worry, I mean worry. Because that gun is still out there. [¶] Mr. Mendiola deserves to be punished for what he did and thats your decision. And its important because, as I said, that gun is still out there. If you say not guilty, he walks out right out the door, right behind you." (Commonwealth v. Mendiola, supra, 976 F.2d at p. 486.)
b. Racially Biased Remarks
A prosecutor engages in misconduct if he or she refers to facts not in evidence, thereby "offering unsworn testimony not subject to cross-examination." (People v. Hill (1998) 17 Cal.4th 800, 828.) In Hill the prosecutor impugned the testimony of a defense witness who had witnessed the killing while visiting a friend whose last name was Hill. In an "outrageous fabrication," the prosecutor asked the jury to infer from the similarity of the names that the defendant and witness were related. (Id. at p. 829.) Townley contends that the prosecutor engaged in "almost identical" misconduct to that condemned in Hill, through remarks that were racially and ethnically biased.
The source of the challenged argument was the prosecutors characterization of the perpetrators "culture" and the suggestion that Townley was part of that culture. The prosecutor argued that Flores was scared to identify his companions. "He didnt want to dime people out. He didnt want to be a rat. Nobody wants to be a rat in that culture. In our culture we generally call it a Good Samaritan helping police solve a case. Different culture." Then, referring the jury to the "two different Spanish voices" that called out to the victim, the prosecutor commented that Townley "may or may not" speak Spanish, although Townleys girlfriend had testified that he did not know Spanish. The prosecutor also pointed out that "one of his sur names [sic] is Hernandez." She did not acknowledge Floress testimony that he had never heard Townley speak Spanish.
Townley contends that the prosecutor engaged in misconduct by making the incorrect, racially biased suggestion that Townley spoke Spanish and implying that he was part of a culture that frustrates police investigation. Our reading of the record, however, is more consonant with the Peoples interpretation. The prosecutors reference to a "different culture" occurred in the context of her discussion of gang behavior, including the resistance being a "snitch." The prosecutor had already established during examination of Flores that he had not wanted to tell the police about what the group had done that night because he did not want to get them in trouble. She repeatedly used the term "Good Samaritan" and elicited Floress statement that he did not feel like a Good Samaritan by talking to the police. We see no impermissible racial or ethnic insinuations in the challenged reference to being a "rat" on others. At worst it was illogical, creating a false comparison between a "rat" and a Good Samaritan. In addition, in further discussing Floress reluctant testimony, the prosecutor clarified her associations by specifically referring to "the gang culture. Thats where this happened that night. That particular culture."
Susan Randolph had believed that all three were Hispanic. David Bacon saw only two of the assailants, who appeared to be of "Latino origin." Jeanne Taylor described the shortest of the three, the one with the black and red plaid jacket, as being of dark complexion. Ginger Weisel described the gunman as five feet nine inches, but she did not see any of their faces. They were yelling in English. Randi Fritts-Nash, one of the teenagers drinking at the apartment, described Townley as white, while the others were Hispanic. In her first interview at the station Oreb also described Townley as a "white guy." In the year that Noe Flores had known Townley, he had not heard Townley speak Spanish. Amanda Johnston, Townleys girlfriend, testified that Townley did not know Spanish.
As for the comment that Townley "may or may not" speak Spanish, the prosecutors erroneous suggestion was not clearly deliberate. Moreover, it was corrected by Townleys attorney, who pointed out that the prosecutor had incorrectly recalled or misunderstood the evidence. He reminded the jury that two witnesses, not just one, had explained that Townley did not speak Spanish. This correction, together with the jury instruction to rely on the evidence rather than argument, dispelled any potential prejudice that conceivably could have resulted from the prosecutors misstatement.
Townleys attorney noted that "there were two people. Not just one. Not just Amanda Johnston. Noe Flores also testified, whos known Mr. Townley for over a year. Mr. Townley didnt speak Spanish. Mr. Flores did. So there are actually two people that established Mr. Townley does not speak Spanish."
c. Misstating the Burden of Proof
Townley further challenges three statements the prosecutor made during her argument to the jury. In her opening argument, she said, "I want to highlight a couple of things about Townley being the shooter. I suspect most of you dont have much doubt in your mind about whether he is the shooter." We do not regard this comment as a claim that the prosecutor professed to have personal knowledge of Townleys guilt, so the Peoples response is not helpful. Instead, Townley merely asserts that the prosecutor suggested she had a personal belief in his guilt and thus "lowered the burden to overcome doubt about this factual question." We disagree. The remark was brief and did not suggest that Townley had to refute her personal belief by presenting his own evidence. Moreover, the defense objection to it was sustained. The prosecutor then rephrased her comment to say, "Based on the evidence, all of the evidence you heard, the evidence doesnt support you[r] having a reasonable doubt as to whether . . . Townley was the shooter."
The prosecutor introduced her closing argument by revisiting the concept of reasonable doubt: "[W]hat I want to tell you is [that] juries have worked with this for hundreds of years. Its not super-esoteric. Its a doubt to which you can assign a reason. And the reason thats so important is because [sic] jury deliberations are a group activity. You all will deliberate together. And in order for you to be able to effectively do that, it cant be a feeling, because its very difficult to put feelings into words so that all of you folks can talk about it. So it has to be a reasonable doubt based on the evidence. So remember, it isnt a feeling like I feel like maybe somethings amiss. Its something you can put your finger on and talk to your fellow jurors about."
Townley contends that this argument misstated the law in the same manner that the Supreme Court condemned in People v. Hill, supra, 17 Cal.4th at page 831. Reversal is not required, however. First, he did not object to the prosecutors statement, thus forfeiting the issue. Secondly, the challenged remark was not comparable to the argument rejected in Hill. There, the prosecutor stated that in order to have reasonable doubt, "`you have to have a reason for this doubt. There has to be some evidence on which to base a doubt. " (Id. at p. 831.) The trial court clouded the picture further by not only overruling the defense attorneys objection, but also chastising him, thereby appearing to endorse the prosecutors incorrect position and potentially biasing the jury against the defense. The prosecutor then continued: "`There must be some evidence from which there is a reason for a doubt. You cant say, well, one of the attorneys said so. (Italics added.)" (Id. at p. 831.)
Here the prosecutor did not affirmatively state that the defendant must have produced evidence to support a reasonable doubt; she said only that there must be a reasonable doubt based on the jurors evaluation of the evidence presented. It is not reasonably likely that her statement would have been understood by the jury to mean that Townley had the burden of producing evidence to demonstrate a reasonable doubt of his guilt.
Later in her argument the prosecutor stated: "I want to remind you that the evidence doesnt have to eliminate any possible doubt. Just any reasonable doubt. Thats all. That is all. Theres always going to be possible doubts. But what an abiding conviction really is, what it boils down to, is it sits right in your gut. You feel okay, you feel good about the decision you made. Maybe some of you regret it later? Perhaps in a way. Perhaps some of you may feel badly about being involved in this trial. Something very violent happened to a nice guy. He was almost killed. Who wants to be a part of that? The Defendants are young. That is tragic. Its nothing short of tragic. But they made very adult decisions that night and, in fact, they made a very adult decision with somebodys life hanging in the balance. That is what they did that night."
Townley argues that these statements lowered the burden of proof by "equat[ing] abiding conviction to a moral certainty with something that the jury feels `okay about or `good about the decision even if `[m]aybe some of you regret it later. "Again there was no objection to the prosecutors explanation. Townley misinterprets the prosecutors reference to regret; she was suggesting that some jurors might feel bad about convicting young people involved in a tragic event; yet they were making adult choices that almost cost an innocent person his life. Characterizing "abiding conviction" as a conviction that "sits right in your gut" is not equivalent to a mere hunch or "gut feeling." Thus, even if Townley had preserved this claim by a timely objection, we would find no basis for reversal. (Cf. People v. Barnett (1998) 17 Cal.4th 1044, 1156 [describing "beyond a reasonable doubt" as "that feeling, that conviction, that gut feeling that says yes, this man is guilty" was not a purported definition of "moral certainty" and did not cause a misunderstanding of the reasonable doubt instruction].) As in Barnett, the trial courts instructions, together with the correct statements of the standard by both defense counsel, mitigated any misstep in the prosecutors characterization of the standard of proof and emphasized the burden placed on the prosecution to prove every element beyond a reasonable doubt. Hence, we find no reasonable likelihood either that the jury construed the prosecutors remarks as requiring the defendant to carry any burden of proof or that the jury misapplied the relevant law.
d. Misstating Facts
Townley points to two instances he believes constituted misconduct by misstating facts. First, during opening argument the prosecutor was discussing Floress declaration, and in particular his "mistake" about what he was wearing the night of the shooting. She stated, "When he was speaking with sheriffs deputies, they didnt make him any promises. They didnt tell him well cut you some slack if you come clean." The prosecutor went on to emphasize how reluctant Flores was to "come clean" and tell the officers what had happened. He did so, she pointed out, without distancing himself or minimizing his own role. She concluded, "Theres nothing, nothing to suggest that he was doing anything but telling the truth that day. [¶] No promises from the D.A.s office. He admitted that he understood what he had to do if he was called as a witness was to tell the truth. Theres no evidence that he doesnt like these guys, that hed want to set them up for some reason. Nothing. He just met Carranco that night. There was no suggestion that he had any ill-will toward Townley, so why would he? Why would he set `em up? He didnt get anything out of it. Again, deputies didnt promise him anything."
Townley again forfeited any challenge to this alleged misstatement by failing to object. Were we to address the merits, we would reject the Peoples assertion that the prosecutor spoke accurately when she said Flores received no benefit from testifying. Although his declaration contained the statement that he did not have "an agreement to testify in exchange for telling the truth in this declaration," it also reflected the plea deal he had made with the district attorney. Nevertheless, the jury was fully aware of the negotiated disposition of Floress case. At trial Flores acknowledged that he had pleaded to a reduced charge, that he might be called to testify, and that if called he would have the obligation to tell the truth.
Townley also takes issue with the following statement by the prosecutor: "When people talk about going to prison for life, they are talking about killing somebody." The prosecutor was referring to Townleys statement to Fritts-Nash that he was "looking at 25 to life." Townley contends that the comment "not only misstated the evidence, but . . . suggested that the prosecutor had evidence beyond the record to support her assertions." The prosecutors statement was an illogical inference from the facts and an incorrect statement of the law. Nevertheless, defense counsels objection was sustained, thus minimizing any harm.
e. Sarcastic Remarks
Finally, Townley argues that the prosecutor made "a host of sarcastic comments in front of the jury," directed at defense witnesses as well as the attorneys. He specifically focuses on two incidents. The defense had called Laurie Kaminski, an expert in gunshot residue, who had watched a video showing Townley rubbing his hands together and touching his shirt. Kaminski suggested that gunshot residue might be transferred from the shirt to his hands. She also expressed the opinion that it can be misleading to try to establish the meaning of gunshot residue based on its location, because particles "redistribute themselves." Thus, residue on someones hands could result from being near a gun when fired, or from handling a fired gun or fired ammunition. In cross-examining Kaminski, the prosecutor asked what the odds would be of contamination ending with the right hand having significantly more particles than the left hand or sleeve. Kaminski explained that there would be no way to estimate those odds. The prosecutor suggested, "Sure a curious coincidence, wouldnt you say?" A defense objection, "argumentative," was sustained.
Even if this was an impermissible comment on the evidence, it was brief and insignificant, and in any event it was tempered by the ruling sustaining the objection. We find no harm from the offhand remark.
The second comment occurred during closing argument, when the prosecutor was going over Carrancos participation and Townleys admissions to Fritts-Nash after the shooting. The trial court overruled an objection by Carrancos counsel to the depiction of Carranco as saving face by getting out of the car with the other two assailants. At that point the prosecutor said, "If Im lucky, I can be accused of misconduct one more time." This sarcastic remark was clearly gratuitous, but it had no bearing on the issues, and it only cast the prosecutor in an even more pejorative light, making her appear petty and querulous. And when Carrancos attorney asked the court to strike her remark, the prosecutor responded with yet more petulance: "Perhaps you should admonish Counsel as [sic] to stop objecting on that [misconduct] basis." The trial court appropriately curbed such fractiousness by telling the prosecutor to "Just finish the argument." No prejudice to Townley resulted from the prosecutors intemperate but self-defeating conduct.
E. Trial Courts Comments on Witness Credibility
During cross-examination of Flores and later in closing argument, defense counsel suggested that Flores had merely assented to the detectives leading questions without independently recalling facts. In cross-examining Flores, counsel for both defendants brought out Floress initial denial to the police that he had witnessed anything, along with questions apparently designed to suggest that (a) Flores was manipulated into admitting his participation in the crime and (b) Floress plea bargain was an incentive for testifying against Townley and Carranco. The following colloquy took place in cross-examination by Carrancos attorney: "Q. And early on when youre talking to Detective Ramsey, you initially told him several times that you didnt know anything about this; is that correct?" After the prosecutors objection was overruled, Flores answered "Yes" and counsel continued: "And Detective Ramsey, during that interview, conveyed to you that they already had some information about this situation; is that correct? [¶] A. Yes. [¶] Q. Detective Ramsey also told you he didnt believe your statement that you didnt know anything about this situation; is that correct? [¶] A. Yes. [¶] Q. Detective Ramsey at one point called you a stand-up guy; is that correct? [¶] [The prosecutor]: Your Honor, objection. Hearsay. It exceeds — [¶] THE COURT: Its all irrelevant. Sustained." When Carrancos attorney tried to defend his question as relevant to Floress state of mind, the court responded with the explanation challenged on appeal: "Weve already established by everyones agreement that whatever — most of what he told Detective Ramsey wasnt the truth, and that he told what he thinks characterizes the truth to Sergeant Sulay later in the interview. Thats my understanding of the testimony in this case. I dont know where youre going with characterization and police tactics used by Detective Ramsey. And those arent actually that relevant."
For example, Townleys attorney asked, "You indicated to Deputy Ramsey when you were initially talking to him you hadnt seen anything; is that correct? [¶] A. Yes. . . . [¶] Q. You hadnt witnessed — the way you used — `I witnessed nothing; is that correct? [¶] A. Yes. [¶] Q. You took the position, I didnt know what happened. [¶] A. Yes."
Shortly thereafter, Carrancos attorney brought out Floress acknowledgement that in the interrogation room he was nervous and scared and afraid of being locked up. The next question— "And you asked detectives if you were going to be able to go home; is that correct?"—prompted an objection by the prosecutor on relevance grounds. Counsel responded, "Goes to the credibility of the statement that hes making." But the court disagreed, explaining that "[t]he credibility is what hes saying today, not what he said back when he was interviewed. You all have to use his interview for impeachment of different purposes, but the jury has to focus on whether his testimony today is truthful or not, and on the other indications here that theyve heard."
Townley contends that these rulings violated his Sixth Amendment rights to present a defense and cross-examine witnesses, because the court improperly commented on the evidence and "cut-off [sic] reasonable attempts to demonstrate that [Floress] testimony was the product of threats and promises of leniency." Even if Townleys attorney had made a proper objection, we would reject his contention, as we find no impairment of Townleys constitutional rights. The court was not declaring the police tactics irrelevant to Floress credibility at trial; it was merely observing that it had already been established that Flores had not told the truth to the deputies when first interviewed. The colloquy did not significantly add to the jurys understanding of the defense position.
The issue presented here is not comparable to the cases on which Townley relies. He cites only one part of the holding in Crane v. Kentucky (1986) 476 U.S. 683 (106 S.Ct. 2142), where the Supreme Court explained that the right to a fair trial was violated by the "blanket exclusion" of testimony about the circumstances of the defendants confession. (Id. at p. 690.) The high court cited its earlier decision in which it had explained that while "`the exposure of a witness[s] motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination, "a defendant is not entitled to " `cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. " (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678-679 .) Accordingly, "trial judges retain wide latitude . . . to impose reasonable limits on such cross-examination based on concerns about, among other things, . . . interrogation that is repetitive or only marginally relevant." (Id. at p. 679.) California v. Green (1970) 399 U.S. 149, 158 (90 S.Ct. 1930) also is not helpful to Townley; the cited holding merely confirms that "the Confrontation Clause is not violated by admitting a declarants out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination." People v. Fierro (1991) 1 Cal.4th 173, 221 only offers the reminder that a prior inconsistent statement is admissible "not only to impeach credibility but also to prove the truth of the matters stated." And People v. Rodriguez (1986) 42 Cal.3d 730, 772 is inapposite because it addressed judicial comments to a deadlocked jury; indeed, the court emphasized that "accurate, temperate, nonargumentative, and scrupulously fair" commentary is not tantamount to coercing the deadlocked jurors into reaching a verdict. (Id. at p. 766.) "Accordingly, we have made clear that the trial court has broad latitude in fair commentary, so long as it does not effectively control the verdict. For example, it is settled that the court need not confine itself to neutral, bland, and colorless summaries, but may focus critically on particular evidence, expressing views about its persuasiveness." (Id. at p. 768.) The court in this case did not even go that far; not only were the coercive circumstances of a deadlocked jury absent here, but there was no comment beyond pointing out a fact that had already been established.
Nor is this case analogous to People v. Sturm (2006) 37 Cal.4th 1218. There the trial judges comments during the penalty phase of trial told the jury that the defendant had been convicted of premeditated murder, which was not true. That inaccurate statement not only advanced the prosecutors argument that the defendant had premeditated the murders, but "severely damaged" the defense position that lack of premeditation and deliberation was a mitigating factor in the penalty decision. (Id. at p. 1232.) No such damage occurred here. The courts statement was accurate in that Floress credibility on the witness stand was the critical point the jury had to determine. If his trial testimony was false, defense counsel could use the circumstances of his prior statement for impeachment; and Townleys attorney did so by bringing out the details of Floress plea agreement with the prosecution. Defense counsel also stated in closing argument that Flores tended to agree with any suggestion made to him about the facts. Only Carrancos attorney was curtailed in his cross-examination of Flores on the veracity of the statements made to Detective Sulay. The court acted to control the proceedings and minimize jury confusion by limiting Carrancos cross-examination to testimony bearing on Floress credibility at trial. Townley himself was not deprived of a fair trial by the trial courts ruling. Furthermore, any potential jury misunderstanding would have been averted or corrected in the instruction with CALCRIM No. 318, which told the jurors that they could use the prior statement to evaluate whether Floress trial testimony was true and whether his statements to the detectives were true.
F. Instruction on Voluntary Intoxication
Jeanne Taylor, who was the passenger in the car driven by Julie Dufresne, testified at trial that she saw three young men running across the street in front of the car. The shorter one in the red and black plaid Pendleton jacket (which she recognized when shown Peoples Exhibit 23) was memorable because he had a "staggered ga[it]" and was "almost stumbling." Having been professionally involved in body mechanics, Taylor thought the gait "looked like a staggering drunk in an attempt to run. . . . Not losing his balance, just having difficulty with his coordination."
Townley contends that in light of this testimony, the trial court had a duty to instruct the jury on voluntary intoxication with CALCRIM No. 626. Recognizing that he did not request such instruction, he argues that it should have been given sua sponte because there was substantial evidence that the shooter was voluntarily intoxicated. If the jury had received the instruction, Townley maintains, the jury might not have found intent to kill or premeditation and deliberation.
Townleys argument cannot succeed. The Supreme Court has repeatedly held that "an instruction on voluntary intoxication, explaining how evidence of a defendants voluntary intoxication affects the determination whether defendant had the mental states required for the offenses charged, is a form of pinpoint instruction that the trial court is not required to give in the absence of a request." (People v. Bolden (2002) 29 Cal.4th 515, 559, citing People v. Saille (1991) 54 Cal.3d 1103, 1120; see also People v. Rundle (2008) 43 Cal.4th 76, 145, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Nor would it have been error to refuse the instruction had there been a request. "A defendant is entitled to such an instruction only when there is substantial evidence of the defendants voluntary intoxication and the intoxication affected the defendants `actual formation of specific intent. " (People v. Williams (1997) 16 Cal.4th 635, 677; accord, People v. Roldan (2005) 35 Cal.4th 646, 715.) Jeanne Taylor was the only witness who suggested that the person wearing Exhibit 23 "looked like a staggering drunk" as he ran across the street; no other witness made any observation or reported that he had been drinking, much less that he was incapable of forming the requisite intent for attempted murder. It is not remotely probable that the jury could have had a reasonable doubt on the question of whether Townley was "not conscious of his actions or the nature of those actions," within the meaning of CALCRIM No. 626. Thus, no pinpoint instruction on voluntary intoxication was necessary.
G. Instruction on Intent to Kill
The trial court instructed the jury with CALCRIM Nos. 875 and 915, which defined the lesser offenses of assault with a deadly weapon and simple assault. Townley recognizes that these were proper instructions in themselves, but he asserts error in the failure of the court to state clearly that these instructions applied only to the assault crimes. By giving "[c]ontradictory instructions," Townley argues, the court "eliminated the prosecutions burden of proving intent to use force and intent to kill in the attempted murder, premeditation and enhancement instructions."
This contention requires no expansive analysis, because the record discloses no ambiguity in the instructions given. The trial court introduced each crime and associated element and enhancement by clearly stating what the prosecution had to prove for that specific concept. In defining attempted murder, for example, the court explicitly stated that the People must affirmatively prove the defendants specific intent to kill the victim. In defining premeditation and deliberation, the court twice stated that it was the prosecutions burden to prove the allegation and that these elements could not be inferred merely from the commission of an assault with a deadly weapon. The explanations of the assault charges were clearly distinguished from the instructions pertaining to attempted murder. We find no reasonable likelihood that the jury was confused or misled into incorrectly applying the intent instructions. (Cf. People v. Kelly (2007) 42 Cal.4th 763, 791 [no reasonable likelihood the jury would have interpreted instruction not to require intent]; People v. Coffman (2004) 34 Cal.4th 1, 123 [no reasonable likelihood the jury was confused by lack of instruction defining implied malice].)
H. Holding Case for Medina
Townley requests that this court "defer consideration of the appeal" pending the Supreme Courts decision in People v. Medina, No. S155823 regarding the "natural and probable consequences" doctrine. The Supreme Courts opinion in Medina has now been filed, and it offers no ground for reversal in this case.
I. Admission of Gang Evidence
Townley next asserts prejudicial error in admitting evidence of gang membership, vocabulary, and behavior, because he was not a gang member. "Even if the evidence had some relevance to Carrancos case, the court should have denied the prosecutors 11th-hour motion to consolidate their cases," presumably for the same reason, that it was irrelevant to Townleys. We find no error.
"In cases not involving the gang enhancement, we have held that evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal. (E.g., People v. Cardenas (1982) 31 Cal.3d 897, 904-905 . . . .) But evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendants gang affiliation— including evidence of the gangs territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like— can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime." (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)
Here there was abundant evidence that the shooting was gang related and that Townley had participated for the benefit of the Norteno gang, even though he was not a member. Codefendant Carranco clearly was a Norteno member; the occupants of the car talked about finding a Sureno; the victim happened to be wearing blue, the color of the rival Sureno gang and was walking outside an apartment complex associated with the Surenos; the assailants demanded to know whether the victim was a Norteno or a Sureno and one yelled the word "scrap"; and later at Gonzalezs apartment—a Norteno-safe refuge— one of them mentioned having "hit a scrap," a slang reference to assaulting a Sureno. Given the irrefutable motivation for the shooting, this evidence was unquestionably probative. It made no difference that Townley was not a formal member of the Norteno gang. Thus, even without the evidence recovered from a search of his bedroom (which included items reflecting a Norteno association), the record unambiguously supports the trial courts admission of testimony explaining the practices, culture, and parlance of these rival gangs. Likewise, it was neither error nor prejudicial to admit testimony from Sergeant Fish and Detective Montes that the Ocean Terrace apartments were associated with the Surenos. Because the admission of the gang evidence was proper as to Townley, his assertion of prejudice from the joint trial with Carranco must also fail.
J. Detention and Transportation
Before trial the defense moved to suppress the evidence of the gun and ammunition found in Townleys shoes while being transported to the sheriffs station. The defense argued that the evidence was the fruit of an unlawful detention; although Townley was subject to a probation search, the scope of that condition did not encompass consent to any detention for questioning. The trial court denied the motion, relying on the probation search condition and the evidence the officers had gathered from interviewing witnesses in Gonzalezs bedroom. The court agreed with the prosecutors suggestion that the officers had probable cause to arrest Townley based on these interviews, but the prosecutor insisted that the transportation was only a detention. The court found that the officers had "probable cause to accuse him of something" when they decided to transport Townley, and they "certainly had probable cause to arrest him" once they had the information from Fritts-Nash about the gun in his shoe.
These interviews gave the officers reason to suspect Townley as a participant in the crime or at least an accessory after the fact. Sergeant Sulay in particular believed that Townleys nervous behavior and evasive responses to questioning indicated that he knew more than he was saying. He also admitted ownership of the red and black plaid jacket, Peoples Exhibit 23. Once Sulay obtained information about the gun and ammunition from Fritts-Nash, he considered it urgent to contact the deputy transporting Townley, who was riding in the patrol car unhandcuffed.
The People concede that the decision to transport Townley was a "de facto" arrest, but they maintain that it was supported by probable cause. Alternatively, they argue, the probation search condition, along with the information supplied by Fritts-Nash, provided an independent source for the search of the shoes, thereby attenuating any illegality of the transportation. Even if probable cause to arrest was lacking, we agree that the valid probation search condition attenuated the connection between the transportation to the sheriffs station and the subsequent discovery of the concealed gun and ammunition. (Cf. People v. Brendlin (2008) 45 Cal.4th 262, 272 [outstanding warrant sufficiently attenuated connection between unlawful traffic stop and subsequent discovery of drug paraphernalia].)
Disposition
The judgment is affirmed.
WE CONCUR:
RUSHING, P. J.
PREMO, J.