Opinion
B296834
08-05-2020
THE PEOPLE, Plaintiff and Respondent, v. SENGCHAN HOUL, Defendant and Appellant.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Susan Sullivan Pithey, Assistant Attorneys General, Paul M. Roadarmel, Jr. and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. KA114915) APPEAL from a judgment of the Superior Court of Los Angeles County. Mike Camacho, Judge. Affirmed as modified. Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Susan Sullivan Pithey, Assistant Attorneys General, Paul M. Roadarmel, Jr. and David A. Wildman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Sengchan Houl (defendant) appeals from his murder conviction. Defendant contends that the trial court erred in both denying a defense motion to remove a juror after he expressed concern about continuing to serve on the jury, and in denying his motion to exclude police video and audio recordings as irrelevant and more prejudicial than probative. Defendant also requests correction of the presentence custody credit to add an additional day. We correct the custody credits, but finding no merit to defendant's remaining contentions, we affirm the judgment.
BACKGROUND
Defendant was charged with the murder of Jonah Hwang, in violation of Penal Code section 187, subdivision (a) (count 1). The special circumstance of murder perpetrated by means of intentionally discharging a firearm from a motor vehicle at another person and persons outside the vehicle with the intent to inflict death, within the meaning of section 190.2, subdivision (a)(21), was also alleged. In count 2 defendant was charged with shooting from a motor vehicle in violation of section 26100, subdivision (c), and in count 3, shooting at an inhabited dwelling in violation of section 246. As to counts 1 through 3, the information alleged that defendant personally and intentionally discharged a firearm causing great bodily injury and death, within the meaning of section 12022.53, subdivision (d), and that he personally used and discharged a firearm within the meaning of section 12022.53, subdivisions (b) and (c). All of the events charged in counts 1 through 3 were alleged to have occurred on February 20, 2017. In counts 4, 5, and 6, defendant was charged with shooting at an inhabited dwelling, in violation of section 246, on January 27, 2017, March 7, 2017, and again March 25, 2017.
All further statutory references are to the Penal Code, unless otherwise indicated.
The trial court granted defendant's section 1118.1 motion for acquittal of counts 5 and 6, but allowed the prosecution to amend the information according to proof to add counts 7 and 8, charging defendant with the lesser offense of willfully discharging a firearm in a grossly negligent manner, in violation of section 246.3, subdivision (a). The trial court renumbered counts 7 and 8 to counts 5 and 6 on the verdict forms. The jury found defendant guilty as charged in the amended information, and found true the special circumstance and the firearm allegations.
On January 29, 2019, the trial court sentenced defendant on count 1 to life in prison without the possibility of parole, with a consecutive term of 25 years to life due to the firearm enhancement of section 12022.53, subdivision (d). The court acknowledged its discretion to stay, strike, or dismiss the firearm enhancements but chose not to do so, because "defendant not only fired a single shot that took the life of Jonah Hwang but he fired multiple shots as well endangering additional individuals, including children." The court imposed the firearm enhancements alleged under section 12022.53, subdivisions (b) and (c) and stayed them pursuant to section 654. The court then imposed the high term of seven years as to counts 2 and 3, plus firearm enhancements, and stayed both sentences pursuant to section 654. As to the remaining counts, the court selected count 4 as the base term and imposed the high term of seven years. As to counts 7 and 8 the court imposed eight months (one-third the middle term of two years) to run consecutively to the term in count 4. The court awarded 674 actual days of presentence custody credit, with no conduct credit, and imposed and stayed mandatory fines and fees upon finding that defendant did not have the ability to pay them. Defendant chose not to contest the demand for victim compensation, and the court ordered payment of $14,586 to the Victim Compensation Board.
Defendant filed a timely notice of appeal from the judgment.
Prosecution evidence
The shooting of January 27 , 2017
Nathan and Sara Robinson lived on West 11th Street in Pomona with their two children, Sydney, who was 15 years old at that time, and Elijah, who was nine. Sometime around January 30, 2017, the Robinsons discovered a bullet hole in their front door, which they reported to the police. Sara testified that though 11th Street was busy, theirs was a somewhat quiet residential neighborhood. She thought the bullet strike was a weird, random event, as she had never before heard of a shooting on her street. The family had no known enemies, and Sara could not think of a motive.
The record refers to several families with shared surnames. To avoid confusion, we will use the first names of individual family members after first mention. When referring to members of each family collectively, we use the plural of their surnames.
When Pomona Police Department (PPD) Officer Joe Deleo came to the house to investigate the bullet strike, he found other damage in the stucco which also appeared to be from a bullet strike, as well as two aligned bullet holes in two blue agave plants, directly in line with the front door. He also found a spent nine-millimeter casing in the street. Officer Deleo spoke to Raymond Maciel (Raymond), who lived at the corner of 11th Street and Hamilton Boulevard. Raymond gave the officer information about a vehicle that was possibly involved in the shooting.
Raymond testified that on January 27, 2017, between 12:30 and 1:00 p.m. he heard gunshots that sounded like they came from his backyard or the driveway of the house behind him. As he turned he saw a full-size, bluish gray, extended cab Toyota pickup truck on 11th Street, approaching Hamilton Boulevard. There were no other cars in sight, and Raymond had not seen the truck before he heard the gunfire. Raymond saw that the driver was a man, and he did not see any passengers. The truck, traveling fast, came within 35 feet of Raymond. It went through the stop sign at Hamilton Boulevard and turned right.
Raymond's preliminary hearing testimony was read for the jury.
The shooting of February 20
On Monday, February 20, 2017, the Robinsons were entertaining Johnny and Karen Hwang and their two children, eight-year-old Jonah and 10-year-old Micah. In addition, the Robinsons were caring for two other children, a 10-year old and a six or seven-year old. The children ate dinner first and then went into the living room at the front of the house at about 6:30 p.m. while the adults remained in the dining room to have their dinner.
In her trial testimony, Sydney described what occurred after she and the other children went to the living room intending to play a game. Sydney, who was then about 5'6" tall, was standing with her back to the living room window. Jonah was sitting on the sofa which faced away from the window, toward the kitchen. The window blinds were open and the living room was illuminated. As Sidney was about to sit down, she heard five gunshots behind her and the sounds of car tires screeching and an engine revving. She saw a spray of liquid on the table and her father emerging from the kitchen, when she heard him say, "Jonah has been shot."
Corporal Adam Viers of the PPD was the first officer to arrive on the scene shortly after the shooting. He immediately entered the house through the front door where he found a child lying on the floor with his head in a woman's lap. Blood and brain matter was on the floor nearby. The scene was chaotic. People were screaming and it was obvious the child was dead or dying as a result of having been shot. Corporal Viers's black-and-white patrol car was equipped with a forward-facing video camera mounted on the roof of the car. On his belt was an audio recorder. Two minutes of the video recording and audio were played for the jury. Paramedics, additional police officers, and detectives soon arrived. Jonah died within minutes after a bullet entered the back of his head and exited through the front.
At the time of the shooting Giovanni Franco (Franco) and his mother lived nearby on Hamilton Boulevard. He testified that at 6:30 p.m. on February 20, 2017, he was home when he heard two loud pops which sounded like fireworks. He looked out the window and saw a truck slowly driving down the street, and then make a right turn. It was a large pickup truck. His mother called 911.
When members of law enforcement, including crime scene investigator Adam MacDonald, walked through and around the house, they found multiple bullet holes in the front, including one in the front window, and one in the garage door. MacDonald determined that four shots had been fired at the house. The photographs of the bullet strikes he took were admitted into evidence.
None of the exhibits admitted into evidence was made part of the record on appeal.
The Robinsons left their home that night and never lived in that house again. The house was again fired upon, on March 7 and March 25, 2017.
The shooting of March 7
After hearing about the February 20 shooting, Juan Carlos Gutierrez (Gutierrez), a long-time resident of West 11th Street, had surveillance cameras installed around the front of his house.
Guadalupe Maciel testified that on the evening of "March 27," 2017, she heard two loud gunshots outside her home. When she looked out she saw a big truck approach on 11th Street and then turn onto Hamilton Boulevard.
Respondent points out that the record reflects that the prosecutor asked Guadalupe about March 27th, 2017, not March 7. Both parties agree that either the prosecutor misspoke or the date was misreported, as the March 7 shooting occurred at 7:12 a.m., the March 25 shooting occurred at 6:44 p.m., and Guadalupe testified that she heard the gunshots around dinnertime when it was dark outside.
On March 8, 2017, MacDonald was again sent to the Robinson house, where he found evidence of another shooting. He obtained the March 7 video recording from Gutierrez's surveillance system, a portion of which was played for the jury. It showed that at approximately 6:44 p.m. a pickup truck passed in front of the house. The passenger side headlight was somewhat misaligned and the passenger side quarter panel of the front end of the truck appeared to be damaged. Different camera views of other angles of the same truck were also played for the jury.
The March 25 shooting
Detective Anthony Luna, with the assistance of an FBI-PPD task force, installed a covert camera near the Robinson home sometime after the March 7 shooting. He was then able to monitor the scene remotely on his laptop computer.
On the morning of March 25, Raymond was in his backyard when he heard multiple gunshots in rapid succession and then saw the same Toyota pickup truck as before. The truck was traveling east on 11th Street, the same direction as on January 27. After failing stop at the stop sign, the truck made a right turn onto Hamilton Boulevard. After Raymond called Detective Luna, shortly after 7:13 a.m., Detective Luna used his laptop to view the video from the covert camera. He observed a truck moving eastbound on 11th Street toward Hamilton Boulevard. Detective Luna put out a call to search for the vehicle seen in the video. He also emailed a photograph from the surveillance video which clearly showed the damage to the truck, to members of the task force.
At 7:16 that morning, Officer Marcus Perez, Jr. was dispatched to the Robinson house, where, in the street directly in front of the residence, he found a shell casing expended from a nine-millimeter semiautomatic handgun. He also found two fresh bullet holes in the exterior of the house.
Defendant's arrest , search of the truck , and ballistics
A 2010 Toyota Tundra pickup truck was soon located in a carport about one and a half blocks away. A GPS tracking device was attached and the next day a surveillance team in unmarked cars began following the truck. When the truck began moving, a team of officers intercepted it. Defendant was the only occupant of the truck when it was stopped. Defendant emerged and was placed face-down on the ground, handcuffed, and patted down for weapons. A nine-millimeter Smith & Wesson semiautomatic handgun was found in his back waistband. Two cell phones were recovered from defendant, and the truck was impounded.
Detectives and crime scene investigators searched and photographed the truck and evidence found inside. The damage found on defendant's truck was the same damage as on the truck depicted in the surveillance video for March 25: front passenger door was dented and the misaligned headlight pointed slightly downward. A single spent bullet casing was found under the rear seats and three other casings were found in the bed of the truck.
Los Angeles County Sheriff's Department firearms expert, Phil Teramoto testified about bullet casings being ejected from semiautomatic firearms and the unique markings left on the casings and sometimes on fired bullets by the barrel of the gun used. Teramoto tested the Smith & Wesson nine-millimeter handgun found on defendant and the Ruger handgun found during a search of defendant's home. He was provided with the nine fired cartridge cases and six fired bullets recovered from the crime scene after the shootings, and compared the barrel markings of the test bullets and casings with them. Teramoto identified all the crime scene casings and bullets as having been fired from defendant's Smith & Wesson pistol.
Defendant's internet searches
Sheriff Detective John Moore, a cell phone and computer forensics expert, extracted and analyzed the data from the cell phones seized from defendant. He found that the phones were used to search for and open several news articles about the shootings between February 24, 2017, and March 21, 2017.
Defendant's whereabouts on the days of the shootings
In January, February, and March 2017, defendant worked as an independent contractor for Swift Transportation in Riverside County, near the intersection of the 60 freeway and Interstate 15. Defendant owned and operated his own truck, to which he attached Swift trailers to pick up and deliver goods in California and beyond. Tractor trucks doing work for Swift were equipped with GPS which could track the location of the tractors within a 30-yard variance. In addition, in each cab there was a digital terminal for communication with supervisors which also recorded whether the ignition was on or off, the speed of the truck, and other data. A Swift Trucking security investigator provided the PPD with defendant's tractor truck data, as well as video recordings from surveillance cameras located around the terminal property for the dates of the shootings.
On January 27, 2017, Raymond heard gunshots between 12:30 and 1:00 p.m. near the Robinson's house. Detective Luna testified that driving time from the Robinson's house to the Swift Trucking lot would be approximately 18 to 26 minutes. Swift records showed that defendant went on duty at Swift at 1:34 p.m. on January 27, 2017. On February 20, Franco heard gunfire at around 6:30 p.m., and defendant went on duty at Swift that day at 7:15 p.m. On March 7, defendant was off duty the entire day. On March 25, Raymond heard gunfire and saw defendant's pickup truck leaving his neighborhood sometime between 7:00 and 7:13 a.m., the same day that defendant went on duty at 8:30 a.m. with a co-driver.
Antoinette Nunez, a California Department of Justice call-record analyst, mapped the call activity of defendant's two phones for January 27, February 20, March 7, and March 25, 2017, showing that on the dates and times of the shootings, defendant could have been in the area of the crime scene. Nunez determined that both phones were traveling together on January 27 and one or the other was used to make calls in Pomona between 11:32 a.m. and 1:12 p.m., before travelling to the city of Ontario near the intersection of Interstate 15 and the 60 freeway at 1:53 p.m. On February 20, calls were made in Pomona at 5:40 p.m. and 6:17 p.m. For March 7, Nunez found activity in Pomona at 5:58 p.m. and 6:22 p.m. The phones then traveled northeast at 6:59 p.m. For March 25, 2017, Nunez found activity near Interstate 15 at 7:50 a.m.
Defense evidence
Detective Freeman testified that black-and-white patrol cars were equipped with dash cameras or "dash cams" that could record the exterior of the car, but body cameras or "body cams" were issued to patrol officers and detectives just three months before trial. There was no video of defendant's arrest or the chain of custody of the gun recovered at the time of arrest.
Defendant's brother Hak Houl, testified that he spoke to Detective Freeman in late March 2017 about the Toyota Tundra that defendant drove during January, February, and March 2017. Hak said that he and his older brother also drove the vehicle. The three brothers were the only people who had access to the truck. Hak testified that he had driven it only a half dozen times in the six months prior to March, and then he used it to run an errand or two in Pomona. Hak also told the detective that defendant was a long-haul trucker, who would be gone for extended periods, and stayed with Hak on and off when he was in town and not working. The brothers did not live together. Hak denied that he committed any of the four shootings.
DISCUSSION
I. Juror No. 3
Defendant contends that Juror No. 3 demonstrated that he was unable to perform the duties of a juror, and thus the trial court erred in denying defendant's request to remove the juror.
Soon after the jury was sworn and before the first witness was called, Juror No. 3 asked "What is the longest trial? Because I don't think I feel fair. I don't know the person that's taken [sic] from me. I need to back [sic] to work, sir." The court replied that this was all taken into consideration, but now that Juror No. 3 was a sworn juror, he had to remain on this trial. The court added, "We need you back tomorrow morning like everyone else. We're going to do our best to get you back to your responsibilities at the job." Juror No. 3 replied, "Yeah, because my company pays for two days, and I attend yesterday and today," adding, "My income is very important to my home." The court stated that it sympathized with him, but the court could not override the attorneys' decision, would do its best to get the case through the system as quickly as possible.
It appears that either Juror No. 3 skipped words or his statements were not transcribed properly. --------
Juror No. 3 then asked, "How long does it take?" "Because I got another concern. I have to travel out of the country in the next couple of days." The court replied, "Again, you need to be back with us each and every day until you're excused by me. If for whatever reason you decide to ignore my order --." Juror No. 3 interrupted the court, stating, "No, no, no." The court told him that there would be significant penalties. The court acknowledged that Juror No. 3's concern was legitimate, but told him he could not excuse him now that he had already been selected and sworn.
After the jury was excused for the day, the court noted that though Juror No. 3 now clearly indicated his wish not to serve, he certainly did not express those concerns at any point during voir dire. The court invited counsel to put their concerns on record about what to do with Juror No. 3. Defense counsel was "very skeptical of No. 3 whether he will pay attention, whether he will be angry with the court," or just disregard the process.
The prosecutor observed that he had previously seen jurors raise issues of time commitment after being sworn, but since there were only two alternates, the prosecutor proposed waiting to see if Juror No. 3 appeared the next morning and then "measure his demeanor" to see if he appeared relaxed and to be paying attention.
The court expressed concern about Juror No. 3's "late disclosures," which were inconsistent with his earlier responses that he would have the time for this trial. The court decided to wait and reconsider the defense request to excuse No. 3 for cause at the end of the following day, and if necessary, would question Juror No. 3 again. "We may have to excuse him ultimately during some portion of this trial for whatever reason. But we will revisit the subject tomorrow."
Defendant acknowledges that defense counsel never renewed the request to remove Juror No. 3. Respondent contends that the issue has thus been forfeited. Citing People v. Memory (2010) 182 Cal.App.4th 835, 857 (Memory), defendant counters that counsel was not required to continue to object to the court's ruling to preserve the issue for appeal. In Memory, there had been a contested hearing on the defendant's motion to exclude evidence, as well as a definitive ruling by the trial court, rather than a denial without prejudice, as there was here. "As a general matter, when a trial court denies a motion without prejudice the matter is forfeited if not renewed. [Citation.]" (People v. Mills (2010) 48 Cal.4th 158, 170, citing People v. Zambrano (2007) 41 Cal.4th 1082, 1124 [motion for change of venue], disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) When counsel fails to later renew the motion, the court is entitled to assume that counsel has abandoned it. (People v. Mills, supra, at p. 170.) This rule applies equally to issues regarding jury selection and instruction. (Ibid.)
Defendant asserts that if we find this claim forfeited, defense counsel's failure to renew the motion or raise the issue again amounted to a denial of defendant's right to the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 15 of the California Constitution.
The Sixth Amendment right to assistance of counsel includes the right to the effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 686-694 (Strickland).) It is the defendant's burden on appeal to demonstrate that trial counsel was inadequate and that prejudice resulted. (People v. Lucas (1995) 12 Cal.4th 415, 436.) Prejudice is shown by "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, at p. 694.)
We presume that counsel's tactical decisions were reasonable, unless "'"the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission."' [Citation.]" (People v. Lucas, supra, 12 Cal.4th at pp. 436-437.) "If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.]" (People v. Carter (2003) 30 Cal.4th 1166, 1211.) Here, it may be that counsel was satisfied with Juror No. 3's demeanor the following day. The record is silent regarding counsel's reasoning on the issue, as well as any request to provide an explanation. Defendant's claim must therefore be rejected.
Although defendant recognizes that it is his burden to make an initial showing of prejudice, he has failed to demonstrate a reasonable probability of a different result absent the alleged error. (See Strickland, supra, 466 U.S. at p. 694.) Indeed, defendant makes no attempt to do so, but merely argues that Juror No. 3 made an "explicit statement of bias" when he said, "I don't think I feel fair. I don't know the person that's taken [sic] from me. I need to back [sic] to work, sir." Defendant provides no authority or argument, or explanation for his reasoning that Juror No. 3's concern about getting back to work demonstrates bias or prejudice. "[T]o warrant discharge, the juror's bias or other disability must appear in the record as a demonstrable reality. [Citations.]" (People v. Holloway (2004) 33 Cal.4th 96, 125.) As defendant has failed to demonstrate bias, he has also failed to demonstrate any error by his counsel or the court.
Moreover, for the reasons discussed in the next section of this opinion, there is no reasonable probability that the result of the trial would have been different if Juror No. 3 had been excused.
II. Crime scene video
Defendant contends that the trial court erred in denying his motion to exclude video recorded on Corporal Viers's body camera as he entered the Robinson home, on the ground that it was irrelevant and more prejudicial than probative.
Before discussing defendant's contentions, it is necessary to clarify what the evidence was, as defendant's description of it is misleading. Corporal Viers did not have a body camera. As Detective Freeman testified, PPD's patrol cars were equipped with dash cameras or dash cams, that could record the exterior of the car, but body cameras were not issued to patrol officers and detectives until later. Corporal Viers testified that his patrol car was equipped with a forward-facing video camera mounted on the roof of the car. On his belt there was an audio recorder. Only defense counsel called this audio recorder a "body cam" and did so only once in his argument to the court that the recording should be excluded.
The trial court listened to the two minutes of audio and observed: "It made notes of the noises or the sounds that I heard. Primarily, it's the sounds of the revving engine from the patrol unit when the officer certainly responded to the scene, sirens included. You can hear some cross talk between the officer driver and perhaps what sounds like a dispatch operator. The dispatch operator certainly did advise the officer during this video that someone had indicated that the child was not breathing and that they were indicating that someone had shot into the house. We certainly see the patrol unit arrive at the scene. There is some additional rustling noise ostensibly attributed to the officer's movement of getting out of his vehicle, running toward the house where evidently the shooting took place. Then you hear a series of wailing sounds, traumatic noises from what I believe is a female voice and that, essentially, is it."
The court overruled defendant's objection, hearing nothing that would be inappropriate for a jury to hear, and noting that the words, "a child not breathing" and "someone shot into the house" show the "state of mind of the declarants as to the traumatic nature of the event that certainly helps explain why this officer proceeded in the manner that he did. Again, it sets out parameters of a chaotic scene, which obviously will be part of the evidence in the case."
We review rulings on the admissibility of evidence for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 203, 207.) The trial court's exercise of discretion "'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
"In a prosecution for murder, photographs [and video] of the murder victim and the crime scene are always relevant to prove how the charged crime occurred, and the prosecution is 'not obliged to prove these details solely from the testimony of live witnesses.' [Citation.]" (People v. Pollock (2004) 32 Cal.4th 1153, 1170.)
The video played for the jury (People's exhibit No. 9) has not been included in the record on appeal. The trial court did not indicate how much, if any, of the interior of the house was displayed. The court stated that there was a series of wailing sounds and traumatic noises, but the record does not indicate how much of the two-minute recording consisted of wailing and chaotic sounds or how loud they were, to permit this court to gauge whether the sounds were inflammatory. The trial court's exercise of discretion is "'presumed correct [and] all intendments and presumptions are indulged to support it on matters as to which the record is silent . . . .' [Citations.]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
Regardless, assuming that the trial court erred, we agree with respondent that the two-minute video and sound recording in this case was harmless. Error in the admission of evidence is generally reviewed for prejudice under the test of People v. Watson (1956) 46 Cal.2d 818. (People v. Hernandez (2011) 51 Cal.4th 733, 746.) Under that test, we examine the entire cause, including the evidence, to determine whether the reasonable probability that defendant would have obtained a more favorable result had the evidence been excluded. (Watson, at p. 836; Evid. Code, § 353, subd. (b); Cal. Const., art. VI, § 13.) It is the defendant's burden to demonstrate the reasonable probability of a different result. (See Hernandez, at p. 746.)
Defendant makes no effort to meet his burden. Instead, he offers the conclusory argument that the admission of the recording was fundamentally unfair, and thus the standard of review to be applied should be the test for federal constitutional error stated in Chapman v. California (1967) 386 U.S. 18, 24.) Under that test, the People have the burden to demonstrate "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Ibid.) We disagree that the Chapman test is applicable, but find the admission of the evidence harmless under either standard.
First, as respondent notes, the evidence of defendant's guilt is overwhelming. Raymond saw the full-size, extended-cab Toyota truck leaving the area of 11th Street and Hamilton Boulevard immediately after hearing gunshots on January 27 and again on March 25. On February 20, Franco, saw a large pickup truck leave the neighborhood via Hamilton Boulevard right after hearing the 6:30 p.m. gunfire that killed Jonah. On March 7, Guadalupe saw a truck leaving 11th Street and turning onto Hamilton Boulevard just after hearing gunfire.
Defendant's truck was recognizable for its size, color, misaligned headlight, damage to the front passenger side, and the placement of parking permits and registration stickers. Gutierrez's surveillance cameras recorded a truck matching that description right after the shootings of March 7 and March 25 in the Robinson's neighborhood. The FBI camera recorded defendant's truck at the same time on March 25, and showed a single male occupant with facial hair similar to defendant's. Swift Trucking and defendant's cell phone records place defendant's cell phones in the area of the crime scene at the times of the shootings.
When police detained defendant he was driving the same truck and was armed with the murder weapon, which was also the same weapon that fired the bullet casing found in the street in front of the Robinson house the day after the January 20 shooting, and fired the casing found in the street in front of the Robinson house shortly after the March 25 shooting. Several other bullet casings fired from that gun were found under the rear seat and in the truck bed of defendant's truck.
Finally, defendant's February and March internet searches for news articles about the shootings, demonstrates not only that the shootings were on his mind, but also a consciousness of guilt. (See People v. Harbert (2009) 170 Cal.App.4th 42, 49, 57-58 [internet search and other post-crime behavior].)
We conclude that the two-minute recording including sounds of wailing for an unknown duration, was so minor in relation to the more than two days of testimony and all other evidence considered by the jury, to be harmless beyond a reasonable doubt, as it was "'"unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record." [Citation.] . . .' [Citation.]" (People v. Pearson (2013) 56 Cal.4th 393, 463, quoting Yates v. Evatt (1991) 500 U.S. 391, 403, disapproved on another point in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn 4.)
III. Custody credit
Defendant contends that he should have received 675 days of presentence custody credit, rather than 674 days, as calculated by the trial court. Respondent agrees. Defendant was arrested on March 26, 2017, and sentenced on January 29, 2019. We agree that the span is 675 days, and will modify the judgment accordingly. (See People v. Taylor (2004) 119 Cal.App.4th 628, 647 [miscalculated custody credit may be corrected whenever discovered].)
DISPOSITION
The judgment is modified to add one additional day of presentence custody credit, for a total of 675 days. In all other respects, the judgment is affirmed. The superior court is directed to prepare a corrected abstract of judgment reflecting this credit, and to deliver a copy of the corrected abstract to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
CHAVEZ We concur: /s/_________, Acting P. J.
ASHMANN-GERST /s/_________, J.
HOFFSTADT