Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles No. BA246483 Curtis B. Rappe, Judge
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Timothy M. Weiner, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Luis Castro Lopez appeals from his conviction after jury trial of two counts of attempted willful, deliberate, premeditated murder; two counts of assault with a semi-automatic firearm; and one count of shooting at an occupied motor vehicle. (Pen. Code, §§ 664, 187, 245, subd. (b), 246.) The court sentenced him to concurrent terms of 25 years to life in state prison, with a 20-year section 12022.53, subdivision (c) enhancement, for the attempted murder convictions. It imposed and stayed the sentences for the assault and shooting at an occupied vehicle. Appellant claims that procedural, evidentiary and instructional errors, and several forms of misconduct deprived him of a fair trial. He also raises sentencing errors. We modify the sentence because of a calculation error and otherwise affirm.
All statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
In 2003, appellant rented apartment 9 of a complex at 1805 West 82nd Street in Los Angeles. Veronica Rios, the mother of three of his children, lived in apartment 2 of the same complex. Appellant's mother, some of his siblings, and Daria Diaz, the mother of his young son, lived about a block away, in apartments at 8118 South Western Avenue. Appellant belonged to the 18th Street gang for many years and was called "Termite."
On the night of January 28, 2003, Ysenia Flores and Angelica Rodriguez were working at a Jack in the Box restaurant on the corner of Florence and Western in Los Angeles. Rodriguez ended her shift at approximately 10:00 p.m. As she left the parking lot, she saw appellant in his Lexus in the drive-through lane. Appellant started a conversation with Rodriguez while William Thomas and his 17-year-old son, Diondre Thomas, sat in William's white van, behind appellant's Lexus, in the drive-through lane. Appellant and Rodriguez continued talking until someone in line behind William honked. Appellant left the Lexus and approached William's van. They met outside their vehicles, yelled at each other, and returned to their vehicles.
Appellant continued slowly through the drive-through lane while speaking to someone on his cell phone about meeting him at Jack in the Box. After he received his food order, instead of driving away, appellant stopped the Lexus near the Jack in the Box building. A passenger with an "18" tattoo on his neck left the Lexus and entered a black SUV on Western. William received his order, drove north on Florence, and turned onto Western. Appellant followed William's van in the Lexus. William drove quickly and ran a red light.
With the Lexus following him closely, William drove into a parking lot behind his pet shop, near 89th and Western. Appellant left the Lexus and started shooting at William's van. William and Diondre left the van and tried to hide behind a camper. Appellant fired several shots at them from a distance of 15 feet or less, returned to his car, and drove away. William grabbed his gun from the pet shop, tried to call 911, and returned to Jack in the Box to ask Flores to call 911.
All of the described sites are within about a mile of each other.
Police officers responded to Flores's 911 call. They found two slugs in William's van and four spent nine-millimeter shell casings in the parking lot behind his pet shop. The casings were from one weapon.
A few days later, while driving on Western near Manchester, within a block of the shooting scene, William saw a Lexus that he recognized from the Jack in the Box incident. He recorded its license plate number as BLX4178 and provided it to the police. A similar license plate number (4XLB178) was assigned to a 1990 white Lexus (the 1990 white Lexus). On February 11, 2003, the 1990 white Lexus was parked behind the 8118 South Western Avenue building occupied by many of appellant's relatives.
In late March, the police obtained a warrant to search appellant's residence on 1805 West 82nd Street, apartment 9 (apartment 9) where they found a Lexus key. On May 6, 2003, custom officials seized the 1990 white Lexus from Salvador Ruiz Cisneros, near the border in San Ysidro, three days after he had visited appellant at the county jail. The Lexus key from apartment 9 opened the 1990 white Lexus and started its engine.
DISCUSSION
Search Warrant
Appellant contends that the trial court erred in denying his motion to quash the search warrant for apartment 9. He argues that several material facts were intentionally or recklessly omitted from the affidavit and that the affidavit is insufficient to justify a finding of probable cause to support issuance of the warrant when such facts are considered. We disagree.
In Franks v. Delaware (1978) 438 U.S. 154, the United States Supreme Court held that a defendant may challenge the veracity of statements contained in an affidavit of probable cause made in support of the issuance of a search warrant. Pursuant to Franks, the court conducted hearings and considered whether the omissions were material to the determination of probable cause. (See U.S. Const., 4th Amend.; People v. Luttenberger (1990) 50 Cal.3d 1, 14-15 & fn. 4.) "[M]ateriality is evaluated by the test of Illinois v. Gates (1983) 462 U.S. 213[], which looks to the totality of the circumstances in determining whether a warrant affidavit establishes good cause for a search." (Luttenberger, at p. 23.) In reviewing the lower court's ruling on a motion to quash a search warrant, we use the deferential substantial evidence standard to evaluate its factual findings. We exercise our independent judgment to determine whether the affidavit provided probable cause to issue the warrant. (Ornelas v. United States (1996) 517 U.S. 690, 691; People v. Alvarez (1996) 14 Cal.4th 155, 182.)
In moving to quash the apartment 9 search warrant, appellant argued that Los Angeles Police Department Officer Roger F. Guzman omitted material facts regarding two unnamed sources from his affidavit. Guzman's affidavit stated that one unnamed source informed him that appellant lived in apartment 9, but failed to disclose that the source was appellant's former girlfriend, Daria Diaz, and that she told Guzman that she wanted appellant in jail and out of her life.
Guzman's affidavit indicated that another unnamed source, Luis Aguilar, informed him that appellant had two girlfriends, including one named Veronica, who lived at 1805 West 82nd Street, apartment 2. Guzman failed to disclose facts known to him regarding conflicts between appellant's family and Aguilar's family. Appellant's mother had testified against Aguilar when he was charged with indecent exposure. In addition, Aguilar's wife had made a criminal threat complaint against appellant's brother.
Guzman corroborated Aguilar's information. For example, he obtained records showing that appellant was cited for driving without a license on July 3, 2002, while driving a car registered in Veronica Rios's name. Aguilar also advised Guzman that appellant drove a late model white Lexus that was parked in the rear parking lot at 8118 South Western Avenue. Guzman corroborated that information by observing the 1990 white Lexus parked there.
"'When material information has been intentionally omitted from a warrant affidavit, the proper remedy is to restore the omitted information and reevaluate the affidavit for probable cause.' [Citation.]" (People v. Avalos (1996) 47 Cal.App.4th 1569, 1581.) Here, after doing so, the court correctly concluded that there was probable cause to search apartment 9. The information from Aguilar was reliable because it was corroborated by other independent sources. (See Illinois v. Gates (1983)462 U.S. 213, 238-239; Avalos, at p. 1581.) The court logically reasoned that Diaz's motive to eliminate appellant from her life did not impair the reliability of her statement that he resided in apartment 9. It stated, "[A]lthough someone with an axe to grind might make up stories about what someone has done . . . it's much less likely that they would make up stories about where they can be found. [¶] [I]f she really wants him out of her life she [might] make up this story that he admitted killing . . . people . . ., but what she is going to get right . . . is where to find that person, where they live, things of that nature . . . ."
Issues Relating to Evidence of Appellant's Gang Affiliation
We reject appellant's contention that the trial court erred by admitting evidence of his gang membership, and that such evidence was more prejudicial than probative. Evidence Code section 352 calls for the exclusion of evidence "if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice. . . ." We apply "'the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including one that turns on the relative probativeness and prejudice of the evidence in question. [Citations omitted.]'" (People v. Jablonski (2006) 37 Cal.4th 774, 805.)
"[E]vidence of a criminal defendant's gang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged. [Citations.]" (People v. Williams (1997) 16 Cal.4th 153, 193; Evid. Code, § 1101.) However, where the evidence of gang membership is relevant to an issue in the case, such as identity, its admission does not amount to proof of guilt by association. (People v. Carter (2003) 30 Cal.4th 1166, 1194.)
Flores, the Jack in the Box drive-through window employee who saw the Lexus driver on January 28th, noticed a "square number 18" tattoo "on his left shoulder," which was in "that area . . . between the shoulder and the elbow." When shown an unidentified photograph of appellant's arm, Flores said she believed that the "18" tattoo depicted in the photograph was the one she saw on the Lexus driver's arm. Flores also saw an "18" tattoo on the Lexus passenger's neck. A gang expert testified that 18th Street gang members have such tattoos.
Appellant does not dispute that the assailant's identity was a key issue below. At trial, prosecution witnesses Rodriguez and Diaz declined to provide testimony consistent with all of their earlier statements linking appellant to the shootings. For example, Diaz, a former 18th Street gang member, recanted or claimed to have forgotten several of her earlier statements. The court admitted properly admitted evidence of appellant's gang affiliation to show identity.
Relying upon People v. Albarran (2007) 149 Cal.App.4th 214, 227-228, appellant argues that "the dominant function of the gang affiliation evidence was . . . to overwhelm the jury with evidence of Lopez's criminal disposition." We disagree. In Albarran, numerous eyewitnesses to a shooting described the assailants as Hispanic males, teens, or adults, with shaved heads. Albarran is inapposite. In Albarran no witness had indicated that the assailants had tattoos or other features connecting them to a specific gang. (Albarran, at pp. 217-219.) Thus, unlike the gang evidence below, the Albarran gang evidence had no probative value to show identity.
Appellant challenges the expert testimony regarding "trece" tattoos like that on his hand which demonstrate honor toward the Mexican Mafia and are obtained only in prison. The probative value of that evidence was minimal at best. Even assuming that the court erred by admitting such evidence, its prejudicial impact was limited where the jury heard other admissible gang evidence, and the expert conceded that he had no personal knowledge that appellant had received his tattoo in prison. In addition, the court took measures to minimize the potential prejudicial impact of the gang evidence. For example, it cautioned the prosecutor that the gang expert could not address appellant's individual intent or describe the types of crimes that were typically committed by 18th Street gang members.
Citing People v. Killebrew (2002) 103 Cal.App.4th 644 and its progeny, appellant further argues that portions of the gang expert's testimony were speculative and lacked a proper foundation. He claims that in testifying about the concept of gang respect, the expert provided a speculative opinion regarding appellant's mental state. The record indicates otherwise. While Killebrew prohibits "an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial" (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1551), an expert can give opinions regarding the knowledge and intent of a hypothetical gang member. (People v. Gonzalez (2006) 38 Cal.4th 932, 946-947, fn. 3.) Here, the court admonished the prosecutor that the gang expert could not address appellant's individual mental state and the expert provided permissible testimony regarding "the expectations of gang members in general when confronted with a specific action." (Killebrew, at p. 658; see People v. Gonzalez, supra, 38 Cal.4th at pp. 946-947 & fn. 3; People v. Garcia (2007) 153 Cal.App.4th 1499, 1513-1514.) For example, the expert testified that in the gang culture, "[r]espect makes and breaks people," and that "[i]ndividuals who are insulted will often respond violently."
We also reject appellant's contention that expert testimony concerning gang tattoos was improper because tattoos are not beyond the common knowledge of lay jurors. Expert testimony regarding gang habits and culture is "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Evid. Code, § 801, subd. (a); People v. McDonald (1984) 37 Cal.3d 351, 367, overruled on another ground in People v. Mendoza (2000) 23 Cal.3d 4th 896, 914.) Expert opinion is admissible "whenever it would 'assist' the jury" and "[i]t will be excluded only when it would add nothing at all to the jury's common fund of information." (McDonald, at p. 367.) Here, the challenged expert testimony properly added to the jury's common fund of information without posing an "'intolerable "risk to the fairness of the proceedings or the reliability of the outcome." [Citations.]'" (People v. Jablonski, supra, 37 Cal.4th at p. 805.)
Appellant further argues that the court committed prejudicial error by admitting evidence that approximately two months after the shooting, just prior to his arrest, Demon, an 18th Street gang member, "came over and took a chrome handgun from [appellant]." Appellant claims that the admission of such evidence violated Evidence Code section 350 because it was "probative of no material issue in this case," and that even if it were probative, it should have been excluded as unduly prejudicial under Evidence Code section 352. We disagree. The court's exercise of discretion under Evidence Code section 352 will not be disturbed on appeal absent a clear abuse of that discretion, that is, unless the trial court's decision exceeds the bounds of reason. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.) The court did not exceed the bounds of reason by admitting the challenged gun evidence. (Ibid.) Further, any error in its admission was not prejudicial where far stronger evidence linked appellant to the crimes.
We also reject appellant's claim that the admission of gang expert testimony violated his constitutional right to confrontation because the expert referred to a letter written by a gang member. (U.S. Const., 6th Amend.; Crawford v. Washington (2004) 541 U.S. 36.) The expert reviewed a letter from Downer, an 18th Street gang member, to appellant which included 18th Street gang references, such as Roman numeral XVIII, and "18th Street." The letter called appellant "Termite," his gang moniker, and it was signed, "Con Todo Respecto," "Downer," "18, S.P." The expert's references to the letter did not violate appellant's confrontation rights because it was not introduced to establish the truth of its contents. "[T]he materials [underlying an expert's] opinion are not elicited for the truth of their contents; they are examined to assess the weight of the expert's opinion. Crawford itself states that the confrontation clause 'does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.'" (People v. Thomas (2005) 130 Cal.App.4th 1202, 1210, citing Crawford, supra, 541 U.S. at p. 59, fn.9.)
Witness Intimidation Evidence
Appellant's claim that the court erred by permitting the prosecution to present witness intimidation evidence also lacks merit. This claim concerns William's testimony that an unknown African-American male visited him at his pet shop about a week after the preliminary hearing. The visitor, who resembled "Iced Tea," asked whether William had "anything to do with the case dealing with the suspect." William testified that "[i]t was scary [and that he] didn't know where he was coming from." William provided that testimony after appellant called him as a witness to question him regarding his letter to the prosecution seeking compensation for crime-related losses. Appellant sought to show that William had a "financial motivation" in the outcome of the case. William's letter also described the Iced Tea visitor.
Appellant argues that absent proof connecting the Iced Tea visitor to him, evidence concerning that visitor lacked sufficient probative value to outweigh its prejudicial impact. (See Evid. Code, § 352.) That evidence was properly admitted pursuant to Evidence Code section 356 which provides: "Where part of an act, . . . or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party [and that] any other act, . . . or writing . . . necessary to make it understood may also be given in evidence."
Evidence of the Victim's Gang Affiliation
We find no merit in appellant's argument that the court abused its discretion under state evidentiary law, and denied his constitutional rights to due process and confrontation by excluding evidence of the victim's gang affiliation. (U.S. Const., 5th, 6th & 14th Amends.) He contends that such evidence was highly relevant to show bias and a motive for William to falsely implicate appellant in the crime, simply because he was a known 18th Street gang member. Appellant presented no actual evidence that William was a member of the Eight-Trey gang, or of their having had a mutual history of prior gang-related conflicts. When counsel asked if William was an Eight-Trey gang member, he answered, "That I remember, no." Appellant's counsel then raised the possibility that William was a "provocateur" who "might have started the shooting."
Appellant's confrontation and due process violation claim is equally meritless. "[T]he Confrontation Clause guarantees only 'an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.' [Citation.]" (Kentucky v. Stincer (1987) 482 U.S. 730, 739.) "A trial court's limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted." (People v. Quartermain (1997) 16 Cal.4th 600, 623-624.) Here, no reasonable juror would have received a significantly different impression of William's credibility had he been cross-examined extensively regarding his alleged gang affiliation, particularly after hearing his evasive answer to defense counsel's question regarding his membership in the Eight-Trey gang.
Eyewitness Identification Expert
Appellant contends that the trial court erred when it excluded the testimony of Dr. Robert Shomer, an expert on eyewitness identification. He contends that the error deprived him of his constitutional right to due process and trial by jury, because Shomer would have explained to the jury why each identification of appellant should be carefully scrutinized in light of the psychological principles that impacted the identification. We review a trial court's exclusion of expert testimony for abuse of discretion. (People v. Sanders (1995) 11 Cal.4th 475, 508.) None appears.
In People v. McDonald, supra, 37 Cal.3d 351, the California Supreme Court said: "[T]he decision to admit or exclude expert testimony on psychological factors affecting eyewitness identification remains primarily a matter within the trial court's discretion . . . . We expect that such evidence will not often be needed . . . ." (Id. at p. 377.) When "an eyewitness identification of defendant is a key element of the prosecution's case," eyewitness identification expert testimony may be excluded unless the eyewitness identification "is not substantially corroborated by evidence giving it independent reliability . . . ." (Ibid., italics added.) Here, other evidence substantially corroborated the Thomases' identifications of appellant. For example, other evidence linked appellant to the 1990 white Lexus that William recognized from the shooting; to the location where that Lexus was parked; to the key that opened that Lexus; and to the person who was driving that Lexus near the border. Because the eyewitness identifications below were substantially corroborated by other evidence giving them independent reliability, the court properly excluded Shomer's expert testimony. (See People v. Goodwillie (2007) 147 Cal.App.4th 695, 724.)
Further, where the factors affecting the reliability of the Thomases' testimony were well known to the jury, Shomer's testimony regarding these factors would have been cumulative. (See People v. Sanders, supra, 11 Cal.4th at p. 509; see also People v. Jones (2003) 30 Cal.4th 1084, 1112.) For example, the jury already knew that appellant was a stranger to the Thomases, who had arguably brief views of him during the crimes, while they were under stress, and that witness descriptions of the suspect's car varied as to its age, its manufacturer, its color, and other attributes. The jury also knew that certain witnesses failed to identify appellant, recanted earlier statements or discounted their identifications of him, and that witnesses had provided varying descriptions of the suspect's clothing, facial hair, et cetera.
We reject appellant's related contention that the exclusion of Shomer's testimony deprived him of his state and federal constitutional rights to present a defense. The application of the ordinary rules of evidence to exclude defense evidence does not infringe on the right to present a defense. (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) The testimony was properly excluded. Moreover, even if its exclusion were erroneous, it did not prevent appellant from challenging the veracity of the witnesses' testimony or the accuracy of the identifications. In fact, appellant's trial counsel extensively explored both matters on cross-examination and in closing argument. Because the court's refusal to admit Shomer's testimony did not result in "the complete exclusion of evidence intended to establish [appellant's] defense," it did not violate his due process rights. (People v. Cunningham (2001) 25 Cal.4th 926, 999.)
Subpoena Duces Tecum
Appellant further argues that the trial court erred by quashing portions of a subpoena duces tecum requiring the Los Angeles Police Department to produce a "complete CAL-GANG print-out/list of all Hispanic male individuals in Cal-gang who possess the following tattoos, including color xerox photocopies of same: (1) A tattoo of '18' on his left upper arm or shoulder; and (2) A tattoo of '18' on his neck." The subpoena was served on the second day of trial. A criminal defendant maintains a right to discovery of material exculpatory evidence under the due process clause, including "a right to discovery by a subpoena duces tecum of third party records by showing 'the requested information will facilitate the ascertainment of the facts and a fair trial.' [Citation.]" (People v. Superior Court (Barrett)(2000) 80 Cal.App.4th 1305, 1312-1313, 1316.) However, "[t]he right of discovery in criminal cases is . . . not absolute. The court retains wide discretion to protect against the disclosure of information that might . . . violate some other legitimate governmental interest." (Id. at p. 316.)
Here, a deputy city attorney challenged the portions of the subpoena seeking the photographs on multiple grounds, including the burden of complying with the broad request. In order to produce those photographs, city employees would have been required to review and examine "several hundred" files of identified 18th Street gang records, isolate those with photographs, review and examine the photographs, and reproduce those that fit the subpoena's description. The city attorney also voiced concern regarding potential security and safety issues posed by releasing photographs of gang members. Appellant's counsel claimed that the request was "very particularized" as it only sought photographs of "tattoos . . . [of] the left upper arm or left shoulder area which show the number 18 in that area," and that such records were material to "identify another individual" who fit the suspect's description. The court suggested that counsel provide information regarding specific individuals and the reasons that each was a logical suspect, implying that it would reconsider requests for photographs of such individuals. Counsel responded that the best way for the defense to obtain information regarding other gang members who fit the suspect's description would be to obtain the material through the subpoena.
The court acted within its discretion in granting the motion to quash. The city and police department had legitimate interests in using their resources efficiently. The court reasonably concluded that it would place a significant burden on them to compel them to review the volume of material necessary to produce the requested photographs. (See Lemelle v. Superior Court (1978) 77 Cal.App.3d 148, 165.)
Judicial Misconduct
Appellant's contention that "judicial misconduct infected the proceedings in this case and mandates reversal" also lacks merit. He bases this claim on the following comments that the court directed at defense counsel in the jury's presence:
"[DEFENSE COUNSEL]: Excuse me. I'm going to object to this page, your Honor. We need to approach.
"THE COURT: What for? I'm sorry. What for?
"[DEFENSE COUNSEL]: 352 material that's on the front page of this that has not been discussed.
"THE COURT: Well, why didn't we discuss this earlier?
"[DEFENSE COUNSEL]: Because I didn't notice it or I would have.
"THE COURT: How long have you had this?
"[DEFENSE COUNSEL]: Your Honor, I need to approach on this.
"THE COURT: How long have you had this?
"[DEFENSE COUNSEL]: This particular record probably for some time but this morning
"THE COURT: Well, in the future let's try [to] do this before we get going.
"[DEFENSE COUNSEL]: I understand.
"THE COURT: We spent a considerable amount of time on this earlier.
"[DEFENSE COUNSEL]: I understand that. And we talked about it this morning. It was just decided this morning and I didn't see it this morning."
On the same day, after counsel voiced concern regarding the above-referenced comments, the court instructed the jury as follows: "Ladies and gentlemen, from time to time in this trial I have made comments to both attorneys about trying to keep on schedule and use the time efficiently and wiser; however, what I want to make clear to you is that my comments really have to do with the procedure and timeliness of this trial. They have nothing to do with the merits. [¶] Everybody understand that? [¶] So don't hold it against anybody on either side if the court indicates that things could have been done in a more timely manner or things of that nature."
Judicial misconduct occurs when a trial judge conveys to the jury the court's "disdain for [defense] witnesses and their testimony" (People v. Sturm (2006) 37 Cal.4th 1218, 1240) or "'persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense . . . .' [Citations.]" (Id. at p. 1233.) On review, an appellate court determines "the propriety of judicial comment on a case-by-case basis in light of its content and the circumstances in which it occurs." (People v. Cash (2002) 28 Cal.4th 703, 730.) Here, the court's behavior did not remotely constitute judicial misconduct. The court made brief comments during one session of a month-long trial regarding counsel's delay in presenting an evidentiary issue to the court. Further, the court promptly admonished the jury not to hold it against anyone if it indicated that things could have been done in a more timely manner.
Prosecutorial Misconduct
We also reject appellant's claim that repeated, prejudicial misconduct by the prosecutor denied him a fair trial. For the most part, he failed to preserve the issue for review because he did not object on the ground of prosecutorial misconduct. The record does not suggest that defense objections to improper comments by the prosecutor would have been futile. (People v. Hill (1998) 17 Cal.4th 800, 820.) Even if appellant had fully preserved the issue for review, we would affirm his conviction because little, if any, misconduct occurred. "'A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process.' [Citations.] 'Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under [California] law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.' [Citation.]" (People v. Tafoya (2007) 42 Cal.4th 147, 176.)
Appellant argues that the prosecutor committed misconduct by failing to prepare witness Michael Lorenz to avoid disclosing that certain letters addressed to appellant bore prison return addresses. We disagree. Before Lorenz testified, the prosecution and defense agreed to stipulate that Lorenz had discovered a certain group of documents together. When Lorenz testified about having seen "numerous letters written from prison to," defense counsel objected, and the trial court ordered the statement stricken and directed the jury to disregard it. Thereafter, at sidebar, the prosecutor stated that "[defense counsel] wanted these envelopes in . . . because of the different addresses." Defense counsel explained that he "was not aware that [Lorenz] was talking about the envelopes" rather than the actual letters, and stated that he "[did not] have a problem with [the envelopes] being marked with Wasco State Prison," but wanted to ensure that Lorenz would not testify about "any letter written by" appellant. (Italics added.) The court later overruled appellant's objection to questions about the prison return address.
While a prosecutor who intentionally elicits inadmissible evidence commits misconduct, merely eliciting evidence is not misconduct. (People v. Chatman (2006) 38 Cal.4th 344, 379-380.) Here, the defense had indicated that it had no "problem with [the envelopes] being marked with Wasco State Prison," and the court's rulings implied that the elicited testimony was admissible. Neither the prosecutor's questions nor the failure to prevent Lorenz's mentioning the prison return address constituted misconduct.
Appellant further argues that the prosecutor engaged in misconduct by suggesting to the jurors that in order to find him not guilty, they would have to determine that some other man with an "18" tattoo on his arm was involved in the shooting. Appellant claims that the prosecutor thereby improperly described the reasonable doubt standard of proof and contradicted the presumption of innocence and shifted the burden of proof to the him. We are not persuaded. Before and after making the challenged argument, the prosecutor advised the jury that appellant could be convicted only if the jury found him guilty beyond a reasonable doubt. In context, the challenged remarks were vigorous arguments (see People v. Fosselman (1983) 33 Cal.3d 572, 580) and fair comments on the state of the evidence. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1146.)
Finally, appellant claims that the prosecutor committed misconduct because her argument improperly denigrated defense counsel by suggesting that the "defense was attempting to confuse the jurors regarding the corroborative evidence and distract them with attacks on the police investigation." The relevant portion of the argument follows:
"[PROSECUTOR]: That is corroboration in this case that the identifications made by the witnesses are correct. It's another piece of evidence. And that's why it's so important to try to confuse it . . .
"[DEFENSE COUNSEL]: Objection, your Honor. That's improper argument -
"THE COURT: Overruled.
"[DEFENSE COUNSEL]: - - to allege that the defense is confusing the evidence.
"THE COURT: Overruled.
"[PROSECUTOR]: Another tactic, you know, when you have a case and you're going to defend somebody and you've evidence like this where eyewitnesses come into court and they say, hey, this is the guy and what do you do? You're going to digress into an analysis of police error."
In arguing to the jury, the prosecutor was "entitled to point out that the opposing side is engaging in what [she] believe[d] to be an attempt to confuse the issues, and [to] urge the jury to ignore that attempt and focus on the relevant evidence." (People v. Demetrulias (2006) 39 Cal.4th 1, 31-32, italics added.) The prosecutor did not denigrate defense counsel or engage in misconduct by making the challenged argument.
Brady Issue
Appellant claims that a new trial is warranted because the prosecution failed to produce information regarding witnesses who may have provided exculpatory evidence, in violation of Brady v. Maryland (1963) 373 U.S. 83. We disagree. This claim concerns information regarding Jesse, a person who was in William's car a few days after the shooting when he spotted the 1990 white Lexus. Under Brady, the prosecution has a duty to disclose material exculpatory evidence to the defense. (Id. at p. 87.) However, "Brady and its progeny do not require disclosure of information before the prosecution actually or constructively possesses it." (People v. Zambrano (2007) 41 Cal.4th 1082, 1163; see also § 1054.1.) Here, the prosecutor learned about Jesse for the first time during William's trial testimony. The prosecutor did not violate Brady by failing to disclose information regarding Jesse to appellant's counsel before trial.
Appellant further claims that the prosecution improperly failed to disclose the names of customers at a club near the shooting scene. The record indicates otherwise. After Diondre testified at trial that witnesses may have seen the gunfire or its immediate aftermath, appellant's counsel claimed that the prosecution had failed to disclose information about such witnesses. "'[T]he prosecution . . . does [not] have the duty to conduct the defendant's investigation for him. [Citation.] If the material evidence is in a defendant's possession or is available to a defendant through the exercise of due diligence, then . . . the defendant has all that is necessary to ensure a fair trial. . . .' [Citations.]" (People v. Zambrano, supra, 41 Cal.4th at p. 1134.) Appellant's counsel had access to information suggesting that club customers may have witnessed the shooting. The prosecution interviewed William in December of 2003 or January of 2004, when he "indicated that there was a club or people--or a social club." That interview was "turned over to the defense long before [the] trial ever began," and the defense also had interviewed William at least once or twice.
Improper Juror Contact
We reject appellant's contention that "improper juror contact abrogated [his] presumption of innocence and denied him his constitutional right to due process and a fair trial." This contention relates to comments that a courtroom spectator made to two jurors outside the courthouse. In evaluating a claim of juror misconduct, we "accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence." (People v. Nesler (1997) 16 Cal.4th 561, 582.) We make an independent determination of whether juror misconduct has resulted in prejudice. (Ibid.) Juror misconduct raises a rebuttable presumption of prejudice. (People v. Danks (2004) 32 Cal.4th 269, 302.) Improper juror contact may constitute a form of juror misconduct. (See, e.g., Remmer v. United States (1954) 347 U.S. 227, 229.)
Here, after defense counsel presented closing argument, the court read the following notes from two jurors to all counsel: "The Gentleman with the black jacket came up to me and said, quote, excuse me, you look familiar, where do you live, close quote. I stated that I am not allowed to talk to anyone. I feel scared for my life." (Juror 12.) "This afternoon during the lunch break I was approached by the Black man sitting in the audience with the White woman. He questioned me about my car and if I liked it or not. I answered him but I felt uncomfortable because I don't know who he is." (Juror 4.)
Defense counsel explained that the Black man mentioned in the notes had accompanied counsel's neighbor to court, and that counsel had not realized that her neighbor or her friend would attend the proceedings. The friend was identified as Lance Gary Rushing. Rushing stated that, with regard to juror 4, he was "in the market [to buy] a car," and that he saw juror 4 sitting in the "same type [he was] looking at." Rushing also said that he "just asked her questions about did she like her car." With regard to juror 12, Rushing stated that he "just simply said you look familiar to me," and "may have asked her where she lived because [he] thought she looked familiar [like] someone [he] ran into in [his] daily life period."
The court and counsel questioned jurors 4 and 12 individually. Juror 4 indicated that the stranger's inquiry made her uncomfortable, but nothing that had happened would affect her judgment, and that she could be fair to both sides. Juror 12 was quite upset by the contact, and was visibly shaken in the jury room in the presence of at least a few other jurors. She said that she "felt nervous" about the contact, but that she could put it aside and be fair. The court then spoke with two other jurors who had been approached by others earlier in the trial, according to juror 4. After speaking with those jurors individually, the court made the following statement to the entire jury:
"All right. Ladies and Gentlemen, you'll remember at the beginning of the trial I made some orders to the attorneys and people connected with them and also some orders to you and basically just to summarize that what I ordered was that there be no conversation between attorneys, anybody working with them such as paralegals, investigators and witnesses in this case. [¶] And it's been brought to my attention today that there may have been some contact by people that have been out in the audience and various jurors that wasn't directly covered by my order and I understand there may have been some discussion in the jury room about it and my concern is I want to make sure that everybody on this jury, whether they heard those discussions or not, can still be fair to both sides in this case. [¶] So in this country trials are public. Anybody can attend. And I don't want the fact that that's true to affect your ability to be fair to both sides. [¶] So . . . is there anybody sitting here among the jurors, including the alternates, who feels that anything that has happened in this case would make it impossible for them to be absolutely fair to both sides? [¶] Okay. I see no hands. [¶] Is there anybody else that has had any kind of contact that they're at all concerned about with anybody they have seen either in the audience or about the courtroom whatsoever? [¶] Just raise your hand if so. [¶] Okay. [¶] All right. Again, I hope you understand the mere fact that we've taken time for this subject - - I don't want you to draw any inferences about it other than it's my duty to make sure that both sides get a fair trial."
The following day, defense counsel moved for a mistrial based on the contact between Rushing and jurors 4 and 12. When the court denied the motion, defense counsel moved for the removal of jurors 4 and 12. The court denied that request. After further discussion, the parties stipulated that juror 12 should be excused and the court dismissed her. Following the verdict, defense counsel moved for a new trial, on multiple grounds, including improper juror contact. The court denied that motion.
"'[A] nonjuror's tampering contact or communication with a sitting juror, usually raises a rebuttable "presumption" of prejudice.' [Citations.]" (People v. Danks, supra, 32 Cal.4th at p. 302.) Here we conclude that Rushing's contact with the jurors was not prejudicial. In discussing the incident, and throughout the inquiries of jurors and alternates, counsel and the court were sensitive to the fact that jurors heard the testimony that an African-American man had visited victim William and asked about "the case dealing with the suspect." Appellant argues that it is "almost certain" that the contact would have been perceived by them as defense intimidation of the jurors. We disagree. In addition to the inquiries described above, the court questioned each juror and alternate individually to assess the need to excuse any of them or take other action. It also took measures to prevent further discussion of the incident. The court acted sensitively, questioned each juror in an appropriate manner, and dismissed the sole juror who seemed distracted and upset by the contact.
Jury Instructions
Appellant contends that the use of the phrase "kill zone" in CALJIC No. 8.66.1 is argumentative. Specifically, he claims that "kill zone" is "unnecessarily inflammatory and is inappropriate in a neutral instruction." We disagree. In People v. Campos (2007) 156 Cal.App.4th 1228, the court rejected a comparable argument challenging "kill zone" language in CALCRIM No. 600: "It does not invite inferences favorable to either party and does not integrate facts of this case as an argument to the jury. Other disparaging terms, including 'flight' (CALJIC No. 2.52), 'suppress[ion] of evidence' (CALJIC No. 2.06), and 'consciousness of guilt' (CALJIC No. 2.03) have been used in approved, long-standing CALJIC instructions. We see nothing argumentative in this instruction." (Id. at p. 1244.) Similarly, we see nothing argumentative, inappropriate or inflammatory in CALJIC No. 8.66.1.
Appellant also argues that CALJIC No. 8.41 "created an impermissible burden shifting presumption in favor of attempted murder." We disagree. As read to the jury, CALJIC No. 8.41 provided in relevant part: "An attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant attempted to kill someone because of a sudden quarrel or in the heat of passion." (Italics added.) The instruction also stated that "[i]f enough time passed between the provocation and the attempted killing for a person of average disposition to 'cool off' and regain his clear reasoning and judgment, then the attempted murder is not reduced to attempted voluntary manslaughter on this basis." (Italics added.)
Appellant emphasizes the word "reduce," and argues that "[b]y instructing the jurors that they should effectively find [his] conduct to be attempted murder unless they were persuaded to 'reduce' it to attempted voluntary manslaughter," the trial court impermissibly shifted the burden of proof. Appellant cites no cases that have disapproved CALJIC No. 8.41 on this basis and we do not find this argument persuasive. Moreover, the court instructed the jury that appellant was presumed to be innocent and entitled to a verdict of not guilty unless the prosecution proved his guilt beyond a reasonable doubt (CALJIC No. 2.90), and that the instructions were to be considered as a whole (CALJIC No. 1.01). "Jurors are presumed to understand and follow the court's instructions." (People v. Holt (1997) 15 Cal.4th 619, 662.)
The minimal prejudice resulting from the small number of errors below obviates the need to address their cumulative impact.
Sentencing Issues
Appellant claims that his due process rights under the Fifth, Sixth, and Fourteenth Amendments of the federal Constitutional were violated when the trial court used his prior sustained juvenile petitions as strikes to increase his sentence under the Three Strikes law. In a separate argument, he claims that the federal and California Constitutions "bar the use of juvenile court wardship declarations as prior convictions under the Three Strikes Law." We address these claims together.
The prevailing view in California is that prior sustained juvenile petitions may constitutionally be used as strikes under the Three Strikes law. (People v. Del Rio (2008) 165 Cal.App.4th 439, 441; People v. Buchanan (2006) 143 Cal.App.4th 139, 149; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830-834; People v. Lee (2003) 111 Cal.App.4th 1310, 1312-1316; People v. Smith (2003) 110 Cal.App.4th 1072; 1077-1079; People v. Bowden (2002) 102 Cal.App.4th 387, 391-394; People v. Fowler (1999) 72 Cal.App.4th 581, 584-587.) However, in People v. Nguyen (2007) 152 Cal.App.4th 1205 (review granted Oct. 10, 2007, S154847), two Sixth District justices concluded that a sustained juvenile petition cannot constitutionally be used as a strike because the juvenile offender does not have the right to a jury trial in juvenile proceedings. We agree with the prevailing view upholding the constitutionality of the use of sustained juvenile petitions as strikes. Pending the Supreme Court's resolution of this issue, we will adhere to the prevailing view.
Appellant also claims that the trial court abused its discretion by denying his motion to strike his prior qualifying strike convictions pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. We disagree. A trial court has limited discretion under section 1385 to strike prior convictions in Three Strikes cases. (Romero, at p. 530.) In determining whether to exercise that discretion, the court must consider "whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
We review the denial of a section 1385 motion under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 373-374.) Here, counsel for appellant stipulated that he had two prior petitions that qualified as strikes. Prior to sentencing, the trial court stated that it had reviewed the Romero motion and was intimately familiar with the facts of the case. In denying the motion, the court stated appellant had "two prior convictions for very, very serious offenses involving firearms," and ended up "attempting to kill two people with firearms." The court did not abuse its discretion by denying the Romero motion.
Finally, appellant claims that his minimum parole eligibility term should be modified. Respondent agrees. The court sentenced appellant to a life term with a minimum parole eligibility term of 45 years as to counts 1 and 2, plus a consecutive term of 20 years. He should have been sentenced to a life term with a minimum parole eligibility term of 25 years as to those counts.
Section 667, subdivision (e)(2)(A) provides for three alternate means of calculating the minimum indeterminate term of a Three Strikes sentence, as follows: "If a defendant has two or more prior felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greatest of: [¶] (i) [t]hree times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior felony convictions, [or] [¶] (ii) [i]mprisonment in the state prison for 25 years, [or] (iii) [t]he term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046."
The court incorrectly determined that the greatest term under section 667, subdivision (e)(2)(A) would be that calculated under option (i), apparently because it incorrectly believed that the minimum parole eligibility term for attempted murder is 15 years. In cases of indeterminate terms, in calculating sentences under section 667, subdivision (e)(2)(A)(i), the minimum parole eligibility term is tripled. (People v. Acosta (2002) 29 Cal.4th 105, 114.) The court below erred by concluding that 15 years was the minimum parole eligibility term for attempted premeditated murder. In fact, the minimum parole eligibility term for this crime is seven years. (§§ 664, subd. (a), 3046, subd. (a)(1); Robert L. v. Superior Court (2003) 30 Cal.4th 894, 900, fn. 5; People v. Salas (2001) 89 Cal.App.4th 1275, 1280; Acosta, at p. 113.) Thus, the term to be tripled here is the minimum seven-year parole term under section 3046, subdivision (a)(1), without the addition of the 20-year firearm enhancement under section 12022.53, subdivision (c). Since a tripling of the seven years under section 3046 is 21 years, and this is less than the default period of 25 years under section 667, subdivision (e)(2)(A)(ii), the correct minimum parole eligibility term in this case is 25 years. (See People v. Jenkins (2001) 86 Cal.App.4th 699, 702.)
The superior court is ordered to modify the abstract of judgment to reflect a life term with a minimum parole eligibility term of 25 years on counts 1 and 2. In all other respects, the judgment is affirmed.
We concur: GILBERT, P.J., PERREN, J.