Opinion
F084468
05-01-2024
THE PEOPLE, Plaintiff and Respondent, v. TERELL MCALISTER, Defendant and Appellant.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Joseph Penney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. F20903096 Jeffrey Y. Hamilton, Jr., Judge.
Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Joseph Penney, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SNAUFFER, J.
INTRODUCTION
Appellant Terell McAlister was convicted by a jury of the second degree murder of Marion Collins, possession of a firearm while having a prior conviction within ten years and carrying a loaded firearm in public. McAlister was sentenced to 40 years to life in state prison.
On appeal, McAlister claims he was deprived of his Sixth Amendment right to confront one of the identification witnesses with impeachment evidence, requests this court review the trial court's in camera hearing to determine whether the trial court properly ruled the privileged police reports did not contain discoverable information, and requests that his abstract of judgment be modified to provide one more day of presentence credit. The People agree that the judgment should be modified to provide one more day of presentence credit, amounting to 762 days actually served, but disagree with McAlister's other claims. We agree with the People.
The trial court is ordered to prepare an amended abstract of judgment reflecting presentence credit of 762 days actually served. In all other respects, the judgment is affirmed.
FACTUAL BACKGROUND
I. Prosecution Evidence
A. Events prior to the May 8, 2020 shooting
Ta. J. had been in a relationship with Collins for seven years. They lived together on the second floor of an apartment on Fairmont on May 8, 2020. Collins was the father of her children. At the time of the shooting, they had a son and Ta. was pregnant with their second son.
Collins's girlfriend has a unique name. We will refer to her as "Ta." throughout this opinion to preserve her anonymity.
References to dates are to dates in 2020 unless stated otherwise.
Ta. and Collins separated briefly in December 2019, and Ta. moved in with her mother. Part of the reason they separated was because Collins started hanging around M.S. ("Tookum"), T.J.W. ("T.J."), and Eddie B. ("Bobo"). Ta. got a "bad vibe" from them and did not like that they brought girls over. While she was living with her mother, Ta.'s son's dirt bike and hover board were stolen from the apartment. Ta. was upset because these items belonged to her son and they cost a lot of money. Ta. moved back in with Collins in January or February of 2020. One day when Ta. came home, Tookum and another person were in Ta.'s apartment with Collins; they were returning the dirt bike. Ta. told Collins that Tookum and the other person needed to leave and they left.
Just before noon on February 13, Collins and Ta. were home when their doorbell rang; Collins went to the living room to answer the door. It was quiet for a second and then Ta. heard a loud thud like something hit the ground. She went to the living room and saw two "guys" standing over Collins hitting him, and a third guy standing in the doorway. To Ta., it looked like one of the guys was hitting Collins with a gun. She believed it was a gun by its appearance and also because she found springs and bullets on the ground. Ta. did not recognize any of the guys but learned from Collins that they were Tookum, T.J. and Bobo. She started swinging her arms to get them out of the apartment and they ran down the stairs. The one she believed to be Bobo lifted his gun towards her but Collins pulled her away. Bobo did not shoot. Ta. called the police and identified Tookum and T.J. as being involved. She did not remember if she identified Bobo to the police.
Later, Collins told Ta. that Tookum, T.J. and Bobo rang the doorbell and asked for some water. When Collins turned to get them water, someone hit him on his head with a gun. The next day Ta. made Collins leave and go to Sacramento while she stayed at her mother's house because it did not feel safe. Collins purchased a revolver while in Sacramento for his safety and returned to Fresno. He carried the revolver any time he left the apartment, sometimes in his fanny pack. Ta. and Collins received subpoenas to testify in court for the February 13 assault but they did not go to court. Ta. said she did not want Collins to be "held accountable" for being a "snitch" because people get killed for being a snitch. Once she learned that Tookum, T.J. and Bobo were released from jail, she knew "stuff was going to start happening."
B. May 8 shooting incident
On May 8, Ta. was out delivering a mobile food order when she received a Facetime call from Collins saying a female named Melanie called out his name and was "going to go get somebody." Ta. understood this to mean that Melanie was going to get people to come back and jump him. Ta. stayed on the phone with Collins while she rushed back to the apartment. Collins then said he saw individuals walking up to him. He put the phone in his pocket and Ta. heard Collins talking to someone and questioning him about fighting T.J. but Collins responded that he did not want to fight. Ta. then heard a loud noise which she thought was Collins being jumped; she did not think at the time that it was a gunshot. Collins no longer responded after the loud noise. Ta. hung up and kept calling him but he did not answer.
When she got home, a girl told her Collins was upstairs and that he had been shot. When Ta. went up the stairs, she saw Collins on the ground and noticed he had been shot in his right buttock. Ta. saw he was wearing the fanny pack that he usually carries the gun in and looked inside to see if the gun was there. When she saw that there was nothing inside the fanny pack, she removed it and threw it inside the apartment. She stayed behind when Collins was transported to the hospital.
Officer Jeremy Miller was called to respond to a report of five shots heard and a gunshot victim on scene. When Miller arrived at the Fairmont apartments, Officer Joshua Dorn was already there providing medical aid to Collins, who was upstairs on the second level in front of an apartment door. Miller noticed droplets of blood on the stairway leading up to Collins who was lying on the ground. Collins was conscious and breathing, but not speaking. Detective Michael Berumen located a fanny pack inside Collins's apartment. There was nothing inside the fanny pack and he did not find a revolver.
Detective Manuel Romero interviewed Ta. on the night of the incident. She began by explaining she was working delivering mobile food orders when she got a Facetime call from Collins. Collins told her he saw a bunch of guys that he had problems with and they started walking towards him. Collins walked back into his apartment in order to avoid an altercation. He then left the apartment and saw the same group of guys. Ta. identified the three guys as T.J., Tookum and Bobo and said they were Dog Pound gang members.
Officer Joshua Dorn also spoke with Ta. on May 8. The interview was recorded with his body camera and the videos were entered into evidence and played for the jury. Ta. showed Officer Dorn a Facebook live video from T.J. and a status update from McAlister a few minutes after Collins was shot. A Facebook live video posted by Nail E. was played for the jury. Romero explained that Jaylin J., Nail and T.J. were in the video; Nail seemed to display a firearm. In the video someone says "Baby O'Dog got a hammer" which is a street term for a firearm. McAlister's nickname is Baby O'Dog .
Berumen spoke with Shawn G. who lived in the neighborhood where the shooting occurred. Shawn showed Berumen the video from his surveillance camera. One video showed Collins crawling back to his apartment. These video clips were turned over to Detective Romero.
Lori C. was living in the same apartment complex as Collins at the time of the incident. Lori was out walking her dog when she heard the gunshots. She saw three black males running across the street. Lori had cameras on her downstairs windows which automatically record when triggered by motion. She was contacted by police who asked if she would review her surveillance footage between 3:00 p.m. and 8:00 p.m. and send them anything significant. Lori forwarded to the police everything her cameras picked up during that time frame.
Crime scene technicians for the Fresno Police Department marked and collected three expended cartridge casings and booked them into evidence. The cartridge casings were tested for fingerprints but none were found.
1. Witness testimony regarding the May 8 shooting
a) C.M.
C.M. recalled hanging out with some friends for a barbeque on May 8. C.M. responded to several questions with "I don't remember." She did not remember who was at the barbeque. There was a water balloon fight, but C.M. did not identify any of the people involved. The prosecutor asked the court to treat C.M. as a hostile witness, which was granted. C.M. testified J.J., who was her friend, and G.R. were at the barbeque that night. At some point they ran out of water balloons and C.M. went with a group to a department store to get more water balloons. J.J. drove and G.R. went with them. C.M. did not recall whether there were any boys with them when they went to the department store. C.M. knew Collins from the neighborhood. She believed Collins was the individual involved in the shooting that day. She did not see the shooting but heard it. C.M was about four to five apartments away when she heard the gunshots. She did not recall how many gunshots she heard. After hearing the gunshots, she saw two individuals running, one wearing a horizontal striped shirt and the other a solid blue shirt.
C.M. received a phone call from T.J. two days prior to her testifying in court about her participation in this trial. The phone call was a three-way call with someone else on the line. C.M. denied that T.J. told her not to participate in the trial and "to not be found" or "get gone." C.M. denied that someone got on the phone and said, "I'll f*** with you when I get out and I'll bring you some money."
C.M. remembered telling Detective Romero that several male and female friends had a water balloon fight, that they ran out and several girls and T.J. went to the department store to get more balloons. When she came back to the apartments on Fairmont, C.M. saw Collins outside his apartment talking on his phone. She did not recall telling Romero she saw one of the boys wearing a multi-colored shirt walk over to the north side of the street towards Collins. C.M. did not recall someone in that group saying "Oh, yeah, it's bad," because Collins and this individual had fought in the past. She did recall telling Romero that J.J. began whistling at Collins, trying to get his attention to tell him to go back in his apartment. C.M. recalled saying that she saw six males approach Collins. She believed that Nail, Jaylin, and T.J. were in the group. C.M. knew McAlister and was friends with him on Facebook. She did not know who the other three males were in the group that approached Collins. They were young, black males.
C.M. said she heard from someone else that Collins removed a gun and immediately dropped it on the ground because he was nervous. She did not recall saying that Collins never pointed the gun at any of the boys but did recall saying that as soon as the gun hit the floor, she saw someone shoot Collins in the ankle and "walk him down." C.M. subsequently said that was just something she heard. C.M. remembered telling the detective that "walking him down" meant "walking up on somebody while continuing to shoot at them."
C.M. said that when she saw the six guys walking up to Collins, she just thought there was going to be a fight. She was not worried about gunshots. She told the detective that Collins got shot because he tried to shoot first.
C.M. heard gunshots but did not recall how many shots were fired. She did not see anyone with a gun and denied knowing who the shooter was. After the shooting, C.M. and her friends got into a car and left the area but returned a short time later to check on Collins. When she returned she saw Collins injured on his porch by his door, and heard him coughing and fighting for his life. C.M. denied telling the officer that she was afraid of getting shot and killed like Collins. She denied saying she knew who the shooter was but that she did not want to describe him. She remembered telling the detective that she believed the shooter's shirt had stripes on it. She could not recall if the stripes were horizontal or vertical. She denied saying that she believed the shooter was already in custody because he was asking for bail money on his Facebook account. She denied that T.J. was there at the time of the shooting and said T.J. was not the one who shot Collins. C.M. said she saw "a lot of boys just walk up to the weed man and [shoot] him." She denied saying that the shooter was laughing afterwards, or that T.J. tried to calm the shooter down. C.M. said she did not hear the shooter laughing because she was too far away. She remembered telling the officer that T.J. said "it's bad." She agreed that she told the detective that "the guys" hated on Collins because he sold marijuana and had money. C.M. said the guys involved in the shooting beat up Collins before and took his property in the past for no reason. She knew this because she was close friends with Collins. C.M. denied telling the officer that T.J. was "never in any problems" and denied blaming the shooting on "the other crazy dude." She explained that she told the officers she saw Collins with a gun just because that was what she heard; she did not actually see Collins with a gun.
C.M. denied that she was scared to speak to police at the time of the incident and denied that she was scared to testify in court. C.M. denied that T.J. ever told her not to come to court or testify. C.M. was friends with Tookum, and knew of Bobo and McAlister, who she knew as "Mugsta Tereezy."
Detective Manuel Romero was the primary homicide detective assigned to the shooting. Romero recorded his interview of C.M. C.M. told Romero that she was hanging out at a barbeque and having a water balloon fight with several friends and family. C.M. said that she, a family member, and T.J. drove to the department store to get more water balloons. She was initially afraid to give names. When they returned, she saw Collins on the phone outside his apartment and T.J. said "it's bad" because T.J. and Collins had fought in the past. Once they parked, J.J. whistled at Collins to go back inside his apartment and said something about a fade, which is a street term for fight. One of the boys squared up with Collins as if they were going to fight. Collins then removed a gun and immediately dropped it because he was nervous; he never pointed the gun at the boys. As soon as the gun hit the ground, C.M. observed a suspect shoot Collins in the ankle and "walk him down." She saw only one person shooting. C.M. knew who the shooter was but refused to identify him because she was afraid to identify anyone and did not want to get involved. She wanted to do the right thing but did not want to be shot and killed like Collins. C.M. said she believed the shooter was already in custody because she saw a Facebook post where he was asking for bail money. C.M. also said the shooter was wearing a shirt with stripes on it. She said that T.J. was there at the time of the shooting, was trying to calm down the shooter, but the shooter did not care and appeared to be trying to impress the other people present. C.M. explained that the guys involved did not like Collins and had beaten him up and taken his property in the past. Romero showed C.M. a photograph of McAlister but she turned away from the photograph without saying anything.
Romero said he clarified throughout his interview with C.M. that her answers were her own observations and not based on what she heard. The recording of the interview was admitted into evidence and played for the jury.
b) J.J.
J.J. was present for the barbeque and water balloon fight on May 8. J.J. met McAlister for the first time that day at the barbeque. J.J. participated in a water balloon fight, along with Anasja, C.M., G.R., McAlister, T.J., Nail, and Jaylin. A group of six to nine people went to the department store to get more water balloons when they ran out. J.J. drove T.J. and C.M. in her car. J.J. and C.M. got water balloons and met T.J. outside where T.J. told them he stole something and that he had a gun on him. J.J. did not see the gun. She was worried about a gun in her car and was concerned because she was recently shot on January 1. The bullet went into the right side of her leg by her knee and stayed there for about a year. After buying the balloons, J.J. drove them back to the apartments. T.J. said "it's bad" when he was getting out of her car. J.J. said she heard shots fired in the distance, like two blocks away, became concerned and stayed behind. J.J. explained that she has been diagnosed with PTSD after being shot and sometimes hears shots that are not actually there. Between January 1 and May 8, J.J. estimated she heard the sound of gunshots once a week. When she hears gunshots, it triggers her anxiety and causes her to tremble and have blurred vision.
When T.J. got out of the car, he went with a group of about eight boys up the street. In that group, J.J. recognized Jaylin, Nail, and McAlister. J.J. watched the group off and on as she was talking with C.M. by her vehicle. J.J. then saw Collins outside. It appeared to her that he was taking out the trash. J.J. knew Collins because C.M. and Collins were friends. J.J. was concerned because she heard from Collins that Nail, Jaylin, Bobo, Tookum, McAlister and T.J. had a problem with Collins. J.J. thought they were going to fight and was afraid there would be a shooting. However, she had not actually seen anyone with a gun at this point. J.J. whistled at Collins to try to tell him to go into the apartment. Collins heard her and looked at her. J.J. used arm movements to tell him to go back inside the apartment and he did. Collins eventually came back out of his apartment and the group of boys approached him and started talking to him. J.J. positioned herself behind a vehicle and called C.M. over.
J.J. personally knew that Collins had a gun and speculated that Collins went back into his apartment to get the gun. The group of boys that were talking with Collins included McAlister, Jaylin, Nail and T.J. T.J. and Collins exchanged words. The conversation was aggressive and J.J. ducked down behind her vehicle. J.J. called G.R. to come over to her and then she heard about six to eight gunshots; J.J. could not see who was shooting. J.J., C.M., and G.R. ran to Kalei's car. As she was running to the car, J.J. saw McAlister walking backwards slowly with a gun in his hand and shooting. McAlister was holding the gun straight out. J.J. did not see anyone else shooting a gun. On cross-examination, J.J. agreed that at the preliminary hearing she testified that she did not see anyone with a gun and did not see anyone firing a gun.
J.J., Anasja, G.R. and her two kids, and C.M. got into the car and Kalei began to drive away. Nail and Jaylin came up to their car and told them to let them in. J.J. told Kalei to go and they drove away. J.J. did not see Collins get shot. She just heard that Collins got shot in the ankle. She told the detectives where she thought Collins's gun should have been because she assumed Collins went inside his apartment to get his gun. J.J. never actually saw Collins with a gun that night. J.J. heard that Collins dropped a gun, but she did not actually see him drop a gun. J.J. heard that T.J. had passed his gun to McAlister but did not personally see that happen.
Later that evening, T.J. tried to get a hold of J.J. and reached out to her on Facebook to make sure they were okay. J.J. told him not to text her and to stop calling her because he started the incident and was his fault. J.J. had known T.J. for about a year at the time of the shooting. J.J. recognized McAlister from a photograph shown to her and said that was the shirt McAlister was wearing when she saw him firing the weapon. J.J. specifically remembered McAlister's shirt was striped and colorful. J.J. said McAlister had the nickname Baby O'Dog. J.J. remembered speaking with an officer who showed her photographs and remembered identifying McAlister. J.J. described McAlister as a "crash dummy" which she explained was someone who acts before thinking. J.J. told the detective that G.R. saw everything.
J.J. said that T.J. and Nail are "Dog Pound" gang members. She explained that M.S. is Tookum and Eddie B. is Bobo. She has never known them to have a problem with Collins. She did not know McAlister before that day and therefore, did not know him to have a problem with Collins.
On May 13, Detective Romero spoke with J.J. J.J. told Romero that on May 8, Jaylin, McAlister, Nail, and T.J. crossed the street to speak with Collins. J.J. also said that when she was running across the street towards her car she saw McAlister walking in a backwards motion with a gun in his hand and firing the gun. The audio recording and transcript of Romero's interview of J.J. was admitted into evidence and the audio was played for the jury. Romero noted that J.J. seemed concerned and sounded like she preferred to remain anonymous. Romero believed the inaudible part of the audio and transcription is where J.J. said T.J. and Collins had a beef, they fought before, and T.J. accused Collins of being a snitch or a snitch and a rapist.
J.J. said that McAlister contacted her around five to ten times between her testifying at the preliminary hearing and testifying at the trial. McAlister would ask J.J. if they were cool or if they were okay, which she took as checking to see if there were no hard feelings. McAlister was "super friendly" which piqued her interest because it was out of the ordinary since she had no contact with McAlister until the court proceedings.
Officer Joshua Alexander conducted a blind administration of a photographic line up with J.J. who identified McAlister as the shooter. J.J. did not give a percentage of certainty but said she was confident.
c) G.R.
On May 8, G.R. drove to the apartments on Fairmont for a barbeque and water balloon fight that J.J. had told her about. G.R. had two young children with her, ages three and one. When she arrived, there was a group of "boys and girls" that included J.J., C.M., Anasja and Kalei. Sometime after arriving, G.R. participated in the water balloon fight. She remembered that Anasja, Kalei, and J.J. participated in the water balloon fight as well, but could not remember who else was involved. When they ran out of water balloons, G.R., J.J. Anasja, and Kalei drove to the department store to get more water balloons. G.R. rode with Kalei to the department store, along with her two children and Anasja. J.J., C.M. and T.J. also went to the department store. After the department store, they went to a grocery store and then they drove back to the apartments. G.R. did not remember a group of boys talking when they returned. G.R. knew of Nail and Jaylin but said she did not really know them. G.R. knew of McAlister from Facebook but had not met him face to face before the incident. G.R. initially said she did not know if Nail was there and that Jaylin was not there but on cross-examination, G.R. admitted T.J., "D Smitty", Nail, Jaylin, and McAlister were there. McAlister did not go with them to either store, but he did participate in the water balloon fight.
On cross-examination, G.R. contradicted herself stating she was not in the water balloon fight.
G.R. knew of Collins from J.J. and C.M. but did not personally know him. On the day of the incident, G.R. never saw Collins at the apartments on Fairmont. When the shooting occurred, G.R. was standing by her car with Kalei and Anasja. G.R. saw dirt flying up from the ground. G.R. said she did not remember if she heard gunshots but grabbed her kids and jumped in Kalei's car when she saw everyone running to the cars. G.R. said that J.J. was crying and told her someone got shot and that she could not believe it. G.R. said that she never spoke with J.J. about who shot Collins even though they were roommates.
G.R. did not remember telling Detective Romero that she saw Collins walk across the street or that she saw a boy with a multicolored shirt walk across the street towards Collins. She remembered telling Romero that she heard approximately four gunshots but at trial did not remember hearing the shots. G.R. never saw anyone with a gun. She did not know that anyone had been shot until after the fact. She did not really know the group of males at Fairmont because she had only been there a few times. She knew that the guy with the colorful shirt was McAlister and that his Facebook name was Mugsta Tereezy. Later, G.R. remembered saying that she saw McAlister walk across the street but did not say towards Collins.
Officer Alexander conducted a blind administration of a photographic line up with G.R., who positively identified McAlister as the shooter. G.R. stated "It's that one. This is the one." She was 100 percent certain.
During the trial, D Smitty came into court one of the days G.R. was testifying. He was there the day of the shooting and participated in the water balloon fight. G.R. said he was not involved with the shooting. G.R. explained that D Smitty has an older brother whose nickname is Real Lies Grill. Real Lies Grill called G.R. and told her not to come to court. G.R. said Real Lies Grill did not threaten her and did not scare her or have any effect on her testimony in court. G.R. stated that seeing D Smitty in court did not affect her testifying.
C. May 10 arrests
Around 3:00 a.m. on May 10, at his 10th Street residence, H.M. had just gotten home from work when he looked outside his window and saw a man sitting on top of a stone near his front door. The man started walking back and forth near his front door. H.M. concealed himself and kept an eye on this person because he was suspicious of him since he kept getting closer to H.M.'s front door. The man was wearing a white shirt, blue jeans, Jordan sneakers and a gold chain necklace. H.M. observed the man having a conversation on Facetime. The man outside said, "I'll be there," "get ready" and "somebody is going to die tonight." Around the same time, H.M. saw the man pull a gun from his waistband. The man then racked the slide on the gun, which really scared H.M.; he then placed the gun back in his waistband. H.M. stopped observing the man and went into his bedroom and called the police. He was able to describe to police exactly what the man was wearing.
On May 10, Officer James Barnum was dispatched to speak with H.M. regarding his 9-1-1 call about a person with a firearm. H.M. described the suspect as wearing blue jeans, a white shirt, white Jordan shoes, and a gold necklace.
Officer Brandon Lyon was working with his canine partner Zeke on May 10. After observing a male matching the description, Lyon turned on his spotlight and the male turned into the alleyway. Lyon broadcast that a subject matching the description was running into an alleyway.
Other officers set up a perimeter to assist in tracking the suspect with a firearm. The suspect was described as a black male wearing a white shirt and blue jeans, white shoes and a gold chain. Officer Mark Bishop was notified by Officer Lyon that he observed someone running into an alleyway. Bishop ran to the location and saw a male matching the description - black male, white shirt, blue jeans and gold chain. Bishop pointed his shotgun at the suspect and ordered him down. The man did not comply but turned and ran the other way.
Lyon heard Bishop yelling in the alleyway and saw the suspect turn and head back towards him. The suspect slipped and fell. As he got up, Lyons gave the canine announcement and the suspect dropped back down and surrendered. Officers ran to that location and apprehended the suspect. Barnum placed him in handcuffs and Bishop took primary custody. Barnum identified the suspect as McAlister.
Once the suspect was apprehended, Lyons searched for the firearm which he located in a dumpster trash can, midway in the alleyway. The firearm that was found was a Glock model, 9 millimeter caliber with an extended magazine. The firearm was fully loaded with a round in the chamber, holding 17 live rounds total.
Officers transported McAlister to H.M. for an infield showup, and H.M. identified McAlister as the man who was outside his front door. H.M. identified McAlister by his clothing and his face. H.M. was shown a picture of a semiautomatic gun and said the gun was like that gun and not a revolver.
Crime scene technicians with the Fresno Police Department took latent fingerprints from the 9 millimeter semiautomatic Glock. No latent prints came back. Once cleared, Romero transferred the firearm to the Department of Justice for ballistic testing.
On May 10, Officer Daniel Saldana conducted a stolen vehicle stop. T.J. was sitting in the back seat on the passenger side of the vehicle. A silver revolver with a wooden handle was discovered at the driver's side back seat of the vehicle. It appeared to be a 9 millimeter. T.J. was arrested.
D. Additional investigation evidence
Doctor Venu Gopal was the forensic pathologist who conducted the autopsy on Collins. An x-ray showed a bullet in Collins's abdomen. Collins had a gunshot entrance wound to the left buttock region. The bullet perforated the small intestine at two places. Two major blood vessels in the pelvic area, the iliac artery and vein, were also perforated. This type of injury makes the person go into shock and brings death. Therefore, the cause of death was the perforated left common iliac artery and vein from the gunshot wound to the left gluteal region. The gunshot had to have been caused by another person since there was no stippling or gunshot residue found. Therefore, the doctor opined the manner of death was homicide.
Jessica Winn was an assistant laboratory director with the bureau of forensic services at the Fresno Crime Lab. She explained that the cartridge casings collected from the scene on May 8 all had the same class characteristics, which means it was possible they came from the same make and model firearm. The class characteristics from the casings matched the Glock 9 millimeter pistol. The individual details in the firearm matched the imprints on the cartridges. Winn opined that the three cartridges were fired from the Glock 9 millimeter pistol. The bullet found in Collins's body had features consistent with being fired by the Glock 9 millimeter pistol as well.
Romero received and listened to three jail calls related to this case. The first call was placed May 10 after McAlister was arrested for possession of a firearm. The audio of the phone call was admitted into evidence and played for the jury. McAlister is heard saying all they have to do is test that mother, which Romero took to mean test the firearm he was arrested with. On October 11, 2021, there was a call from McAlister to J.J. The audio was admitted into evidence and played for the jury. On October 12, 2021, a phone call to C.M. included T.J. and McAlister. The audio was admitted into evidence and played for the jury.
Fresno County Correctional Officer Cheryl Blair explained that in order to make a telephone call from jail, an inmate has to use their jail identification number. The three calls were made from the jail using McAlister's and T.J.'s jail identification numbers. However, it is possible to use the jail identification number of another inmate.
II. Defense Evidence
An audio forensic scientist reviewed the recorded audio from the Collins shooting and opined that multiple different guns were discharged; some of the gunshot sounds had indications of having been fired from a semi-automatic, and others sounded to have been fired from a revolver.
On February 13, a landscaper was working near the apartments on Fairmont when he saw an altercation on the second floor of an apartment and then heard two gunshots. Three men went running past him. One individual had a gun he believed to be a revolver. The landscaper also noticed bullets by a staircase but when he took the officers to the area the bullets were no longer there.
III. Prosecution Rebuttal
Detective Romero testified that based on his training and experience with firearms, revolvers are very reliable and are not known to misfire, unlike semiautomatic firearms, which have many moving parts. In his 22 years of experience as a police officer, he has never found a revolver not operable. In his opinion it was not likely that two revolvers would misfire at the same incident.
IV. Verdict and Sentencing
McAlister was charged with the following offenses: murder of Collins (§ 187, subd. (a); count 1) on May 8, with an additional allegation that he personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)); possession of a firearm while having a prior conviction within ten years (§ 29805; count 2) on May 10; and carrying a loaded firearm in public (§ 25850, subd. (a); count 3) on May 10, with an additional allegation that McAlister was not the registered owner of the weapon (§ 25850, subd. (c)(6)).
The jury found McAlister guilty of second degree murder of Collins and found true that McAlister personally and intentionally discharged a firearm causing great bodily injury or death; guilty of possession of a firearm with a prior conviction within ten years; and carrying a loaded firearm in public, and found true that McAlister was not the registered owner of the weapon.
McAlister was sentenced to an aggregate term of 40 years to life in state prison, comprised of 15 years to life for second degree murder, followed by 25 years to life for the discharging a firearm enhancement, plus the middle term of two years for possession of a firearm imposed concurrently. The middle term of two years for being a felon in possession of a loaded firearm in public was stayed pursuant to section 654.
We note that the jury found two separate firearm enhancement allegations under section 12022.53 to be true: (1) that McAlister personally and intentionally discharged a firearm (subd. (c)); and (2) that he personally and intentionally discharged a firearm proximately causing great bodily injury (subd. (d)). At sentencing, the trial court imposed a 25-year-to-life term for the section 12022.53, subdivision (d) enhancement and stayed the term for the section 12022.53, subdivision (c) enhancement under section 1170.1, subdivision (f). We further note that the Reporter's Transcript states that the trial court said it was imposing the 25-year-to-life term for the firearm enhancement under section 12022.53, subdivision "(g)". However, we are certain the court either misspoke or that this is a transcription error; the proper subdivision for imposition of this term is subdivision (d). We discovered an error in the abstract of judgment which mistakenly indicates McAlister's "total time" to be 42 years to life. Here, the trial court's oral pronouncement of judgment for count 2 was two years to run concurrent to his indeterminate terms, which results in an aggregate term of 40 years to life. As such, the abstract of judgment should reflect a total time of 40 years to life. Since the error was made in recording the judgment, it is considered a clerical error. (In re Candelario (1970) 3 Cal.3d 702, 705.) Although this clerical error was not raised by the parties, the court may correct such errors on its own motion. (Ibid.; People v. Flores (1960) 177 Cal.App.2d 610, 613.) The court has the inherent power to correct clerical errors in the records so as to make these records reflect the true facts. (Candelario, supra, at p. 705; People v. Schultz (1965) 238 Cal.App.2d 804, 807; Flores, supra, at p. 613.) We choose to correct such error on our own motion and order the trial court to issue an amended abstract of judgment reflecting McAlister's true "total time" as 40 years to life.
DISCUSSION
I. Sixth Amendment Right to Confront Witnesses
McAlister contends that the trial court abused its discretion in excluding evidence of J.J.'s misdemeanor conduct of shoplifting and lying to police about it, which was offered to impeach J.J.'s credibility. McAlister claims that the court's error deprived him of his right to present a complete picture of one of the identification witnesses. McAlister claims the court erred in relying on the prosecutor's statements that there are no cases standing for the proposition that simple petty theft is a crime of moral turpitude.
McAlister contends the trial court's ruling violated the Sixth and Fourteenth Amendments of the United States Constitution. He further contends the error was not harmless beyond a reasonable doubt, arguing it was a close case and that identity of the shooter who caused the fatal injury was critical and J.J.'s testimony was key to identifying McAlister as the shooter. The People disagree, contending that the trial court did not abuse its discretion in excluding the evidence since McAlister's counsel offered "relatively little to the trial court in support of admitting [the impeachment] evidence." The People also assert that exclusion of the evidence did not prejudice McAlister. We conclude the trial court did not abuse its discretion.
A. Relevant Factual and Procedural History
In a pretrial motion, defense counsel requested that the court allow impeachment evidence of J.J. shoplifting at a department store and then lying to the police about it. Defense counsel sought to introduce a video recording of J.J. committing the petty theft conduct and argued the video would not involve undue consumption of time and would not be unduly prejudicial because she admitted to committing theft and to lying to the police. Counsel's brief cited People v. Wheeler (1992) 4 Cal.4th 284, 290-296 (Wheeler), superseded by statute on other grounds as stated in People v. Duran (2002) 97 Cal.App.4th 1448, 1460-1461 [a witness may be impeached with any prior conduct involving moral turpitude whether or not it resulted in a felony conviction]; People v. Gurule (2002) 28 Cal.4th 557, 608 (Gurule) [theft crimes involve "an element of deceit"]; In re Garcia (2014) 58 Cal.4th 440, 460 ["certain conduct involving fraud, perjury, theft, embezzlement, and bribery" are acts involving moral turpitude]; and People v. Hinton (2006) 37 Cal.4th 839, 888 (Hinton) [excluding evidence of the prior theft and lies to officers would clothe the witness in a "false aura of veracity."]
The prosecutor's pretrial motion acknowledged J.J.'s petty theft arrest and noted the charge had been dismissed following successful diversion. It also noted she had recently been arrested for soliciting prostitution but no charges had been filed. The prosecutor noted he "[could not] find any case that stands for the proposition that simple petty theft is a crime of moral turpitude." The prosecutor urged the trial court to exclude J.J.'s misdemeanor conduct, stating that such evidence would have "no valid benefit," and the information about her arrest "would only serve to prejudice the jury against her as a witness." The prosecutor suggested that "[J.J.'s] credibility may be adequately tested without admission of her arrest record."
At the pretrial hearing, while considering McAlister's past convictions for impeachment purposes, the prosecutor stated that he could find no case law establishing that a "misdemeanor shoplift" was a crime of moral turpitude. The court stated, "Yeah, I don't think so." Defense counsel offered no comment at the time. Later, the prosecutor sought to exclude evidence of certain prior arrests or adjudications for crimes by witnesses as improper impeachment. Specifically regarding J.J.'s misdemeanor petty theft, the defense sought to admit a video of the theft and the prosecutor objected to its admission. The following colloquy occurred in court:
[DEFENSE COUNSEL]: It occurred at night and it was, I think, four females and a child present. So I think that distinguishes which it is, but I think we're talking about the same incident.
THE COURT: And you don't believe that that -- 788, I'm sorry, is prior felony conviction -- you don't believe that that's moral turpitude pursuant to Castro, do you? Does nighttime make a difference?
People v. Castro (1985) 38 Cal.3d 301 (Castro).
[DEFENSE COUNSEL]: No. I was just saying why -
THE COURT: Just checking. I like to keep as up-to-date as possible.
[DEFENSE COUNSEL]: I get it. I think it's a crime of moral turpitude. I happen to think that petty theft is a crime of moral turpitude and that lying to police officers is another additional crime of moral turpitude, and that they are -- although they would both be misdemeanors, I won't say that they are -- either one is a felony -- that they're still relevant to her willingness to tell the truth on the stand.
THE COURT: Okay. So as long as you can provide me with case support, I am certainly willing to reconsider. I'm not aware of any, but always willing to learn.
[THE PROSECUTOR]: Nor am I, Judge.
Defense counsel responded that it had already provided the court supporting authority, such as Gurule, supra, 28 Cal.4th 557, and Hinton, supra, 37 Cal.4th 839, in addition to Wheeler, supra, 4 Cal.4th 284. Defense counsel did not provide any additional case law on this issue.
B. Applicable Law
The principles governing the admission of evidence are well settled. Only relevant evidence is admissible (Evid. Code, §§ 210, 350), "and all relevant evidence is admissible unless excluded under the federal or state Constitutions or by statute. (Evid. Code, § 351; see also Cal. Const., art. I, § 28, subd. (d).)" (People v. Heard (2003) 31 Cal.4th 946, 973.)"' "The test of relevance is whether the evidence tends, 'logically, naturally, and by reasonable inference' to establish material facts such as identity, intent, or motive." '" (People v. Wilson (2006) 38 Cal.4th 1237, 1245; People v. Harris (2005) 37 Cal.4th 310, 337.)
In determining the credibility of a witness, the jury may consider any matter that has a tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to: a witness's character for honesty or veracity or their opposites; the existence or nonexistence of a bias, interest, or other motive; his attitude toward the action in which he testifies or toward the giving of testimony; and his admission of untruthfulness. (Evid. Code, § 780.) Generally, prior felony convictions are admissible "[f]or the purpose of attacking the credibility of a witness." (Evid. Code, § 788.) Any prior felony conviction that "necessarily involve[s] moral turpitude" is admissible to impeach a witness's testimony. (Castro, supra, 38 Cal.3d at p. 306.) Moral turpitude is defined as the "general readiness to do evil." (Id. at p. 314; People v. Burton (2015) 243 Cal.App.4th 129, 133; People v. Barnett (1998) 17 Cal.4th 1044, 1126-1127.) Moral turpitude does not depend on dishonesty being an element of the crime. (Castro, at p. 315 ["[I]t is undeniable that a witness'[s] moral depravity of any kind has some 'tendency in reason' [citation] to shake one's confidence in his honesty."].)
"A witness may be impeached with prior conduct that involves moral turpitude, whether or not it resulted in a felony conviction, subject to the trial court's exercise of discretion pursuant to Evidence Code section 352." (People v. Carter (2014) 227 Cal.App.4th 322, 329 (Carter); People v. Clark (2011) 52 Cal.4th 856, 931 (Clark) [same]; Wheeler, supra, 4 Cal.4th at pp. 290-296 [Proposition 8 allows impeachment with relevant misdemeanor misconduct]; People v. Harris (2005) 37 Cal.4th 310, 337 (Harris) ["Past criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach, subject to the court's discretion under Evidence Code section 352."].) Relevant misdemeanor misconduct is not precluded for impeachment in criminal proceedings. (Wheeler, supra, 4 Cal.4th at p. 292.) "[I]f past criminal conduct amounting to a misdemeanor has some logical bearing upon the veracity of a witness in a criminal proceeding, that conduct is admissible, subject to trial court discretion, as 'relevant' evidence[.]" (Id. at p. 295; see also Carter, supra, 227 Cal.App.4th at p. 329; Harris, supra, 37 Cal.4th at p. 337.)
As stated in Wheeler, " 'There is ... some basis ... for inferring that a person who has committed a crime which involves moral turpitude [even if dishonesty is not a necessary element] ... is more likely to be dishonest than a witness about whom no such thing is known. Certainly the inference is not so irrational that it is beyond the power of the [P]eople to decree that in a proper case the jury must be permitted to draw it ....'" (Wheeler, supra, 4 Cal.4th at p. 295, quoting Castro, supra, 38 Cal.3d at p. 315, fn. omitted.) Misconduct involving moral turpitude may suggest a willingness to lie (Castro, at pp. 314-315; People v. Anderson (2018) 5 Cal.5th 372, 408) and this inference is not limited to conduct which resulted in a felony conviction. While the trial court may weigh proffered impeachment evidence on its individual merit, there is no basis for a ruling that the court's discretion may never be exercised to admit nonfelonious conduct. (Wheeler, at pp. 295-296.)
Additionally, "[t]he admission of past misconduct involving moral turpitude to impeach a witness in a criminal trial is subject to the trial court's discretion under Evidence Code section 352." (People v. Feaster (2002) 102 Cal.App.4th 1084, 10911092 (Feaster).) Specifically, "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) Evidence Code section 352 allows broad latitude for exclusion of impeachment evidence in individual cases. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues. By expressly preserving this authority, section 28, subdivision (d) makes clear the voters' determination to prevent such consequences. (Wheeler, supra, 4 Cal.4th at p. 296.)
When exercising its discretion under Evidence Code section 352, a court should take into account, as applicable, the four guiding factors identified by our Supreme Court in People v. Beagle (1972) 6 Cal.3d 441, 453, superseded by statute on other grounds as stated in People v. Rogers (1985) 173 Cal.App.3d 205, 208-209 (Beagle). (People v. Sanghera (2016) 6 Cal.App.5th 365, 371; People v. Mendoza (2000) 78 Cal.App.4th 918, 925; see also Castro, supra, 38 Cal.3d at p. 309.) These guidelines are: (1) whether the prior reflects adversely on the defendant's honesty or veracity; (2) whether the prior is near or remote in time; (3) whether the prior is for conduct substantially similar to that for which the defendant is on trial; (4) whether allowing impeachment will influence the defendant's decision to testify. (Beagle, at p. 453; Castro, at p. 307 [the Beagle factors should not rigidly limit the court's discretion but guide the courts in their exercise of discretion]; Mendoza, at p. 925.) "Although Beagle was decided in 1972, 'The Beagle factors "remain relevant to any application of section 352 even after the adoption of [Proposition 8]." '" (People v. Muldrow (1988) 202 Cal.App.3d 636, 644; see Sanghera, at p. 371, 373-376.)
"[A]dditional considerations may apply when evidence other than felony convictions is offered for impeachment. In general, a misdemeanor-or any other conduct not amounting to a felony-is a less forceful indicator of immoral character or dishonesty than is a felony. Moreover, impeachment evidence other than felony convictions entails problems of proof, unfair surprise, and moral turpitude evaluation which felony convictions do not present. Hence, courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value." (Wheeler, supra, 4 Cal.4th at pp. 296-297.)
If it is determined the trial court erred in excluding evidence of the conviction for impeachment, it is subject to harmless error review under Watson, where it must be shown that it is "reasonably probable that a result more favorable to defendant would have occurred in the absence of error." (Castro, supra, 38 Cal.3d at p. 319; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
C. Standard of Review
"The admission of past misconduct involving moral turpitude to impeach a witness in a criminal trial is subject to the trial court's discretion under Evidence Code section 352." (Feaster, supra, 102 Cal.App.4th at pp. 1091-1092.) The trial court's exercise of discretion will not be overturned on appeal unless the trial court abused its discretion. (People v. Brook (2017) 3 Cal.5th 1, 43; People v. Clark (2016) 63 Cal.4th 522, 586; People v. Clair (1992) 2 Cal.4th 629, 655 (Clair).) The burden is on the complaining party (Denham v. Superior Court (1970) 2 Cal.3d 557, 566) to show that the court's decision exceeded the bounds of reason. (People v. Brown (2001) 96 Cal.App.4th Supp. 1, 42; Williams v. Superior Court (1989) 216 Cal.App.3d 378, 384.)
" 'To establish an abuse of discretion, defendants must demonstrate that the trial court's decision was so erroneous that it "falls outside the bounds of reason." . . . An abuse of discretion will be "established by 'a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." '" (People v. Johnson (2022) 12 Cal.5th 544, 605-606; People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390.) In most instances, the appellate courts will uphold the exercise of discretion even if another court might have ruled otherwise. (Clair, supra, 2 Cal.4th at p. 655; Feaster, supra, 102 Cal.App.4th at p. 1092.)
D. Analysis
Prior California law provided that a witness could be impeached only by a prior felony conviction (Evid. Code, §§ 787, 788). However, the California Supreme Court interpreted the passage of California Constitution, article I, section 28, subdivision (f) (Proposition 8) as having eliminated this restriction. (See Wheeler, supra, 4 Cal.4th at pp. 290-296.) Prior misdemeanor misconduct, not amounting to a felony, can now be used to impeach any witness. (Id. at pp. 291-292.) The Wheeler court explained the rule went even further and permitted any "immoral" conduct to be used to impeach a witness, even it did not result in a misdemeanor conviction. (Id. at p. 297.)
Courts recognize there are two limits on the court's exercise of discretion on such impeachment evidence: (1) the evidence must be relevant to the issue of credibility, meaning the conduct must exhibit "moral turpitude" (see Castro, supra, 38 Cal.3d 301); and (2) the trial court can exclude evidence whose marginal relevance is outweighed by the unfair prejudice or other difficulties its introduction might cause within the meaning of Evidence Code, section 352 (see Wheeler, supra, 4 Cal.4th at pp. 294-296 ["section 28(d) expressly leaves California trial courts free to exclude evidence which is irrelevant, or whose marginal relevance is outweighed by the unfair prejudice or other difficulties its introduction might cause"]).
1. Relevance Requirement of Moral Turpitude
" '[T]he admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude.'" (Clark, supra, 52 Cal.4th at p. 931, quoting Wheeler, supra, 4 Cal.4th at p. 296, fn. omitted; see also Castro, supra, 38 Cal.3d at p. 316.) Relevant here, if past criminal conduct amounting to a misdemeanor has some logical bearing upon the veracity of a witness in a criminal proceeding, that conduct is admissible, subject to trial court discretion as "relevant" evidence. (Wheeler, at p. 295.)
Courts have held that "theft crimes necessarily involve an element of deceit" which meets the first Beagle factor. (Gurule, supra, 28 Cal.4th at p. 608 [grand theft]; see e.g., Wheeler, supra, at 4 Cal.4th at p. 297 [grand theft involves both moral turpitude and dishonesty]; People v. Cudjo (1993) 6 Cal.4th 585, 626 [grand theft is a crime of moral turpitude]; People v. Anjell (1979) 100 Cal.App.3d 189, 196, disapproved of on other grounds in People v. Mason (1991) 52 Cal.3d 909, 943, fn. 13 [crime of grand larceny reflects a person's dishonesty and integrity]; People v. Waldecker (1987) 195 Cal.App.3d 1152, 1156 [petty theft with a prior conviction of petty theft under section 666.]) We note that these cases involve felony theft crimes and J.J. does not have a prior felony conviction related to moral turpitude conduct. J.J.'s misdemeanor charge of petty theft, which also involved lying to police, was dismissed after successful diversion.
Our Supreme Court stated that "[a] witness may be impeached with any prior conduct involving moral turpitude whether or not it resulted in a felony conviction." (Clark, supra, 52 Cal.4th at p. 931; Wheeler, supra, 4 Cal.4th at pp. 290-296; see also Carter, supra, 227 Cal.App.4th at p. 329.) Although McAlister argues that shoplifting, regardless of the amount, is theft and demonstrates dishonesty and "a willingness to lie" (see Wheeler, supra, 4 Cal.4th at pp. 295-296), neither McAlister nor the People have been able to find any case law specifically addressing whether misdemeanor petty theft conduct without a conviction rises to the level of moral turpitude that can be used for impeachment. In this respect, McAlister is unable to demonstrate that the trial court erred when it agreed with the prosecutor that "there were no cases establishing that a 'misdemeanor shoplift' was a crime of moral turpitude."
Trial courts are free to exclude evidence whose marginal relevance is outweighed by unfair prejudice. (Wheeler, supra, 4 Cal.4th at p. 294.)" 'The latitude [Evidence Code] section 352 allows for exclusion of impeachment evidence in individual cases is broad.'" (Clark, supra, 52 Cal.4th at p. 931; Wheeler, at p. 296, fn. omitted; see also Castro, supra, 38 Cal.3d at p. 316.) When determining whether to admit a prior conviction for impeachment purposes, the" 'courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.'" (Clark, at p. 932; Wheeler, at pp. 296-297.) "Because the court's discretion to admit or exclude impeachment evidence 'is as broad as necessary to deal with the great variety of factual situations in which the issue arises' [citation], a reviewing court ordinarily will uphold the trial court's exercise of discretion." (Clark, at p. 932; People v. Collins (1986) 42 Cal.3d 378, 389; see Hinton, supra, 37 Cal.4th at p. 888; People v. Stewart (1985) 171 Cal.App.3d 59, 65.)
"Additional considerations apply when the proffered impeachment evidence is misconduct other than a prior conviction. This is because such misconduct generally is less probative of immoral character or dishonesty and may involve problems involving proof, unfair surprise, and the evaluation of moral turpitude." (Clark, supra, 52 Cal.4th at pp. 931-932; Wheeler, supra, 4 Cal.4th at p. 296 [any conduct not amounting to a felony is a "less forceful indicator of immoral character or dishonesty than is a felony" and "entails problems of proof, [and] unfair surprise"].) "[C]ourts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value." (Clark, at p. 932; Wheeler, at pp. 296-297.)
Here, since it was not established that J.J.'s petty theft conduct and lying about it were crimes of moral turpitude, the trial court did not conduct an analysis under Evidence Code section 352.
3. Harmless Error
Even if we assume the trial court erred when it failed to exercise its discretion to determine whether to admit evidence of J.J.'s shoplifting and lying to police for impeachment, any error was harmless. (Castro, supra, 38 Cal.3d at p. 319 [applying the Watson standard].) First, even though the evidence of shoplifting and lying was not admitted for impeachment, defense counsel had the opportunity to impeach J.J. and challenge her credibility and was able to show she had been untruthful on other issues. (See People v. Sully (1991) 53 Cal.3d 1195, 1221 [harmless error where there was ample opportunity to challenge the witness's credibility].) Specifically, defense counsel pointed out that J.J. had lied when she said she had not been paid for speaking to the police, when the parties stipulated that J.J. had in fact been paid four hundred dollars to do so. Further, on cross-examination, defense counsel was able to show prior inconsistent statements such as not seeing anyone with a gun and then having seen McAlister with a gun. The jurors heard J.J. admit that her testimony from the preliminary hearing that she did not see anyone with a gun or shoot a gun differed from her trial testimony. As such, McAlister's claim that J.J. was cloaked in "a false aura of veracity" is unsupported. (See Hinton, supra, 37 Cal.4th at p. 888; Beagle, supra, 6 Cal.3d at p. 453.)
Moreover,"' "an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong . . . that there is no reasonable probability the error of which the defendant complains affected the result." '" (Clark, supra, 62 Cal.App.5th at p. 968, italics omitted; People v. Beltran (2013) 56 Cal.4th 935, 956.) Here, the prosecutor's case was strong. (See People v. Bonilla (1985) 168 Cal.App.3d 201, 205 [trial court's failure to exercise discretion over admission of impeachment evidence was harmless where the evidence against defendant "was very strong."].) Multiple witnesses observed the shooting and identified McAlister as the one who fatally shot Collins. J.J. and G.R. identified McAlister as the shooter in the photo lineup. J.J. said she was confident in her identification and G.R. stated she was 100 percent certain in her identification of McAlister as the shooter. Although C.M. refused to identify the shooter, she made statements that were consistent with McAlister being the shooter, such as stating the shooter was not T.J., that the shooter had nothing to do with the earlier conflict, and that the shooter was already in custody. As such, the identification of the shooter was supported by other witnesses and was not solely dependent on J.J.'s testimony. The fact that the jury reached their verdict quickly is further evidence the prosecutor's case was strong.
Additional evidence supported that McAlister was the shooter. Shortly after the incident, McAlister was observed with a gun and ran from police. After he was caught, police located the gun hidden in the alley where McAlister was running. The gun was a Glock 9 millimeter and consistent with the gun McAlister had been seen holding earlier. Later, forensic analysts determined that the cartridges found at the scene of the Collins murder appeared to have been fired from that Glock 9 millimeter. The bullet found in Collins body had consistent features with being fired by the Glock 9 millimeter as well.
Therefore, after a review of the record, we conclude it is not reasonably probable that a result more favorable to McAlister would have occurred had he been allowed to impeach J.J. with the video of her shoplifting and lying to police about it. (See Castro, supra, 38 Cal.3d at p. 319; Watson, supra, 46 Cal.2d at p. 836.)
II. The Trial Court Did Not Abuse Its Discretion in Determining the Police Reports Regarding Jaylin's Homicide Did Not Contain Discoverable Information
McAlister requests that this court conduct an independent review of the in camera hearing to determine whether the lower court abused its discretion in concluding the reports from Jaylin's homicide did not contain discoverable information. The People agree that this court may examine the in camera hearing to evaluate whether the trial court abused its discretion, but state they have "no reason to believe any material, relevant, or discoverable information is contained in the reviewed reports." Upon review of the in camera hearing we find the court did not abuse its discretion.
A. Relevant Procedural History
On December 29, 2020, Jaylin was killed in a shooting in the Fairmont neighborhood. On August 11, 2021, defense counsel filed a motion for a pretrial discovery compliance order claiming the prosecution failed to disclose all police reports and video evidence from the shooting death of Jaylin. The prosecutor filed an opposition to the motion to compel discovery asserting privilege regarding the information sought since it pertained to ongoing investigation by law enforcement. On August 17, 2021, defense counsel submitted a supplemental pleading on the motion for a pretrial discovery compliance order for evidence regarding Jaylin's homicide. On August 18, 2021, the prosecutor submitted supplemental points and authorities in opposition to the defense motion indicating nothing in the police reports was relevant to the Collins murder and that the reports did not include any exculpatory Brady material for the defense.
Brady v. Maryland (1963) 373 U.S. 83 (Brady).
An in camera hearing was set on August 30, 2021. The trial court indicated that it had reviewed the police reports previously provided to the court by stipulation of the parties and was ready to conduct the in camera hearing with the officer and the court reporter. Defense counsel provided the court with a list of questions that he wished to be asked of the witness. The court said it would review the questions and determine if each question was relevant and appropriate. The defense attorney and prosecutor were excluded from the in camera hearing.
After the in camera hearing, and before the court's ruling, defense counsel argued that there was a "direct connection" between the charges against McAlister and the shooting death of Jaylin. Counsel argued that based on Jaylin's identity and location, the incidents were "surely" related in some way. Defense counsel wanted the opportunity to review the privileged material to decide from a defense perspective whether it would be relevant or potentially lead to relevant evidence. Defense counsel stated that, "with all due respect to the [c]ourt's neutrality, I think that there's still a, still a prosecutorial bent that needs to be addressed and [th]at the defense point of view has to be respected." The court noted that if defense counsel believed the judge had a prosecutorial bent he had a right to move to disqualify him under Civil Code section 170.6. Defense counsel did not wish to make that request and clarified he believed the court is "trying to be neutral" but noted there were more "prosecution bent" participants at the hearing than defense.
The trial court found the defense theory of connection between Collins's homicide and Jaylin's homicide to be speculative. The court stated that "[t]he strongest showing is that the homicide occurred in the same neighborhood on the same street, but other than that, you haven't shown any connection . . . even drawing reasonable inferences, that the homicide of [Collins], that your client is charged with, and [Jaylin's] homicide are connected." Even though Jaylin was at the scene of Collins's murder, defense counsel failed to show how that fact was related to Jaylin's murder. The court felt defense counsel's arguments were not supported by declarations but were "filled with hyperbole and . . . speculative." The defense failed to make the required" 'showing which specifies the materials sought and furnishes a plausible justification for inspection.'" The court noted it had "seen no plausible justification or any other competent and reliable evidence" to support defense counsel's theory that Jaylin "was killed because he knew who ... the actual shooter was in the Marion Collins homicide, implying it's not your client, and that the actual shooter or others working for him killed Jaylin ... to prevent him from disclosing that information or revealing that information[.]" The court explained that "speculation that there might be evidence [does not] establish a violation of Brady."
After reviewing the privileged documents and questioning the lead detective on the Jaylin case, the trial court concluded they did not contain any Brady information. The court denied the motion upon finding a lack of any Brady discovery material in the confidential documents, nor any discovery required by statute, either material or immaterial exculpatory evidence.
In a subsequent pretrial motion, defense counsel requested a discovery compliance order regarding Jaylin's propensity to carry a firearm. Defense counsel noted he subsequently learned that multiple guns were shot during the Collins homicide. Defense counsel was aware that when Jaylin was shot, he returned fire on his attackers. "Since [Jaylin] is known to have carried a firearm on that occasion, it is reasonable to infer that during a confrontation in the same neighborhood, that he would be armed then as well. The defense will want to call witnesses that can testify and verify this fact." In a pretrial hearing, defense counsel noted there was expert opinion that three different firearms were used in the shooting as recorded by the gunshot-tracking apparatus, but the court explained this was not new evidence and did not disturb its ruling since there was "nothing new for this [c]ourt to reconsider."
B. Relevant Law
Criminal defendants have a due process right to discover material exculpatory evidence in preparation for trial. (Brady, supra, 373 U.S. at p. 87; Pennsylvania v. Richie (1987) 480 U.S. 39, 56; People v. Jimenez (2019) 32 Cal.App.5th 409, 417.)" 'Under the federal Constitution's due process clause, as interpreted by the high court in Brady v. Maryland, the prosecution has a duty to disclose to a criminal defendant evidence that is" 'both favorable to the defendant and material on either guilt or punishment.'" '" (People v. Williams (2013) 58 Cal.4th 197, 255-256; People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 704; People v. Gutierrez (2003) 112 Cal.App.4th 1463, 1471.) "The Brady disclosure obligation encompasses both impeachment and exculpatory evidence, and exists regardless of whether the defendant makes a specific request for the information." (Gutierrez, at p. 1471.) Evidence is "material" under Brady "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." (United States v. Bagley (1985) 473 U.S. 667, 682; Strickler v. Greene (1999) 527 U.S. 263, 280 (Strickler); Williams, at p. 256 [consider the effect of nondisclosure on defense investigations and trial strategies].)
Upon request, appellate courts are authorized to conduct their own review of documents reviewed in camera at the trial court level since those documents are not available to an appellant. (People v. Hughes (2002) 27 Cal.4th 287, 330 (Hughes); People v. Mooc (2001) 26 Cal.4th 1216, 1228; People v. Webb (1993) 6 Cal.4th 494, 516-518.) The decision of the trial court is reviewed for abuse of discretion. (Hughes, at p. 330; People v. Jackson (1996) 13 Cal.4th 1164, 1220-1221 (Jackson), abrogated in part on other grounds as stated in McGee v. Kirkland (C.D.Cal. 2009) 726 F.Supp.2d 1073, 1080.) Where it is determined that a trial court abused its discretion," 'an accused must demonstrate that prejudice resulted from a trial court's error denying discovery.'" (People v. Gaines (2009) 46 Cal.4th 172, 181.)
C. Analysis
As an established practice, appellate courts conduct an objective and independent in camera review of records for potentially discoverable material, after such records have been subjected to prior in camera review by lower courts. (People v. Lawley (2002) 27 Cal.4th 102, 159-160 [in camera review of transcript of trial court's in camera hearing on potential disclosure of confidential informant's identity].)
There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the state, either willfully or inadvertently; and prejudice must have ensued. (Strickler, supra, 527 U.S. at pp. 281-282.) We have independently reviewed the in camera hearing and conclude the trial court did not abuse its discretion in refusing to disclose the law enforcement records regarding the Jaylin shooting. (See Strickler, supra, 527 U.S. at pp. 280-282; Hughes, supra, 27 Cal.4th at p. 330; Jackson, supra, 13 Cal.4th at pp. 1220-1221.).
III. Presentence Credit
McAlister requests this court modify his judgment claiming there is a one-day discrepancy between the number of days he was in custody while the matter was pending and the number of days he received as credit at sentencing. The People agree.
"A defendant is entitled to credit for all days in presentence custody including the day of arrest and the day of sentencing." (People v. Adams (2018) 28 Cal.App.5th 170, 180.) At sentencing, the court granted McAlister 761 days of credit for time in custody, and no conduct credit pursuant to section 2933.2. Probation records reflect that McAlister was arrested and booked on May 10, 2020, and remained in custody until he was sentenced on June 10, 2022. We agree with both McAlister and the People that under these undisputed facts, McAlister served 762 days in presentence custody.
Errors in computing custody credits involving undisputed facts are unauthorized sentences that can be corrected at any time. (People v. Guillen (1994) 25 Cal.App.4th 756, 764.) Therefore, we order the judgment modified to reflect that McAlister receives 762 days custody credits for actual days served.
DISPOSITION
The trial court is ordered to prepare an amended abstract of judgment reflecting presentence credit of 762 days actually served and a "total time" of 40 years to life. The trial court is further ordered to forward a copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: DETJEN, Acting P. J. MEEHAN, J.