Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. BA272013 Robert J. Perry, Judge.
Doris M. Frizzell, 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, Assistant Attorney General, Victoria B. Wilson and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Johnathan Denaro Marquez appeals his convictions for murder and attempted murder. He argues the trial court improperly admitted hearsay and character evidence and failed to instruct the jury to view an alleged accomplice’s testimony with caution. We conclude appellant forfeited his argument as to the character evidence issue, and the asserted errors on other issues were harmless. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
On the night of March 26, 2004, appellant, a member of the By Yourself Hustler Crips street gang (BYHC), became involved in a fistfight with one Fidel Tizcareno. Accounts vary as to the events leading to the fight and who initiated it, but all agree that it took place in front of appellant’s home in the presence of several young men, and that appellant was knocked to the ground. Appellant’s mother emerged from the home and threatened to call police, at which point Tizcareno and his companions fled.
Immediately after the fight, appellant appeared angry and called “P.K.,” an older BYHC member. He also called Craig Taylor, another BYHC member. Appellant was yelling and sounded furious, saying “This is fucked up” and “These niggas trying to jump me in front of my house with my mom out there.”
After the fight, Tizcareno and his companions went to the home of Tizcareno’s uncle, where they talked and watched a basketball game. After the game was over, Tizcareno and three others left the house and began walking along Venice Boulevard. As they entered a parking lot, they heard gunfire. Jermond Allen, who was with Tizcareno, saw appellant and other people approaching from across the street; appellant was firing a gun. Tizcareno was shot in the back and died. Allen was shot in the head and was permanently disabled. The following morning, appellant called Dominique Patterson and told him he had killed three “CBH’s.”
“CBH” refers to Can’t Be Handled, a group of graffiti taggers aligned with the Drifters street gang.
Appellant was arrested in Tennessee and brought back to California to face charges of murder and attempted murder. (Pen. Code, §§ 187, 664/187.) As to both counts, it was alleged that he personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)), that a principal personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subds. (d), (e)(1)), and that the crimes were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(A).) A jury convicted appellant of both charges and found true all special allegations except the allegation that he personally and intentionally discharged a firearm. Appellant was sentenced to prison for 75 years to life. This appeal followed.
All further statutory references are to the Penal Code unless otherwise indicated.
DISCUSSION
I
Appellant argues, and respondent concedes, that the trial court erred in admitting a police detective’s testimony that Craig Taylor told the detective appellant admitted being involved in the shooting. Appellant argues admission of that hearsay testimony denied him due process of law and his right to confront witnesses, guaranteed under the Fourteenth and Sixth Amendments to the United States Constitution. But he forfeited those constitutional arguments by not raising them in the trial court. (People v. Thornton (2007) 41 Cal.4th 391, 427; People v. Partida (2005) 37 Cal.4th 428, 437-438.)
Anticipating the problem of forfeiture, appellant argues his trial counsel provided ineffective assistance by failing to object to the detective’s testimony. “‘In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it “fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms.” [Citations.] Unless a defendant establishes the contrary, we shall presume that “counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” [Citation.] If the record “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 unless there simply could be no satisfactory explanation.” [Citations.] If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” [Citation.]’” (People v. Lopez (2008) 42 Cal.4th 960, 966.)
The record does not indicate a reason for counsel’s failure to object, and there does not appear to be a satisfactory explanation for it. Respondent suggests counsel may not have objected to the detective’s testimony because she believed the jury would notice a discrepancy between it and the testimony of another prosecution witness, Patterson. According to the detective, appellant told Taylor he participated in the shooting with two accomplices. Shortly after the detective testified, Patterson testified that appellant admitted committing the shooting with two different accomplices. There was no discrepancy between the two accounts on the point most damaging to appellant—his admission that he committed the shooting. It is implausible that defense counsel deliberately allowed the close repetition of such damaging testimony merely to create confusion over ancillary details.
Appellant contends there is a reasonable probability he would not have been convicted if the contested testimony was excluded. But the jury heard through Patterson that appellant admitted his involvement in the shooting. Jermond Allen survived the shooting and identified appellant as one of his assailants. In appellant’s bedroom, police officers discovered a lotion bottle with gang graffiti on it, including the phrase “Mexican K” (meaning “Mexican killer”). Hours before the shooting, one of the victims had defeated and humiliated appellant in a physical confrontation on the street. Appellant belonged to a street gang, and a gang expert testified that appellant would lose standing with his fellow gang members if he did not retaliate. Appellant eventually was arrested in Tennessee, from which the jury could infer flight. In light of the evidence we have summarized, particularly Patterson’s testimony, it is not reasonably probable that the outcome of the trial would have differed if the contested testimony had been excluded. (See People v. Lopez, supra, 42 Cal.4th at p. 966.)
Appellant stresses aspects of Allen’s testimony that were inconsistent with other evidence, and contends Allen was mistaken. But the jury apparently credited that testimony. “Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 403.)
II
Appellant correctly argues the trial court, based on evidence Patterson helped the shooters locate the victims, should have instructed the jury to determine whether he was an accomplice, and if the jury found that he was, to view his testimony with caution. “[T]he jury should be instructed to the following effect whenever an accomplice, or a witness who might be determined by the jury to be an accomplice, testifies: ‘To the extent an accomplice gives testimony that tends to incriminate the defendant, it should be viewed with caution. This does not mean, however, that you may arbitrarily disregard that testimony. You should give that testimony the weight you think it deserves after examining it with care and caution and in the light of all the evidence in the case.’” (People v. Guiuan (1998) 18 Cal.4th 558, 569.) “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. . . . [¶] An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” (§ 1111.) “‘[W]hen there is sufficient evidence that a witness is an accomplice, the trial court is required on its own motion to instruct the jury on the principles governing the law of accomplices,’ including the need for corroboration. [Citations.]” (People v. Tobias (2001) 25 Cal.4th 327, 331.)
But instructional errors of this kind are subject to harmless error review. (People v. Whisenhunt (2008) 44 Cal.4th 174, 214.) State law errors are subject to the reasonable probability standard of harmless error under People v. Watson (1956) 46 Cal.2d 818, 836-837. (People v. Whisenhunt, supra, 44 Cal.4th at p. 214.) “A trial court’s failure to instruct on accomplice liability under section 1111 is harmless if there is ‘sufficient corroborating evidence in the record.’ [Citation.] To corroborate the testimony of an accomplice, the prosecution must present ‘independent evidence,’ that is, evidence that ‘tends to connect the defendant with the crime charged’ without aid or assistance from the accomplice’s testimony. [Citation.] Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime. [Citations.] ‘“[T]he corroborative evidence may be slight and entitled to little consideration when standing alone.” [Citation.]’ [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 562-563.)
The error was harmless in this case because Patterson’s testimony was corroborated by Allen’s testimony identifying appellant as one of the attackers. The alleged weaknesses in Allen’s testimony do not preclude it from corroborating Patterson’s testimony. (People v. Avila, supra, 38 Cal.4th at p. 563.) It is not reasonably probable that the outcome of the trial would have differed if the jury had been instructed to view Patterson’s testimony with caution.
III
Appellant argues the trial court violated Evidence Code section 1101 and deprived him of due process of law in admitting evidence of his probationary status, of his attendance at a continuation school and of disobedience of his mother. But he did not object to questioning about continuation school, and his sole objection to the other evidence was based on Evidence Code section 352. He does not maintain that argument on appeal, and he may not argue the evidence was inadmissible for reasons other than those he advanced at trial. (See People v. Partida, supra, 37 Cal.4th at p. 435.) Additionally, appellant forfeited his due process claim by merely stating it under a section heading of his brief without supporting it with argument or citation to authority. (People v. Jones (1998) 17 Cal.4th 279, 304 [defendant “presents this claim perfunctorily and without supporting argument, and we reject it in similar fashion”].)
He does not specify whether his due process claim is based on the state or federal constitution. In light of his previous due process argument, we understand him to mean the federal constitution.
Finally, appellant argues the cumulative effect of the claimed errors prejudiced him because, in their absence, the jury may not have found him guilty beyond a reasonable doubt. We disagree; whether considered independently or together, the claimed errors were not prejudicial. (See People v. Watson (2008) 43 Cal.4th 652, 704.)
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J., SUZUKAWA, J.