Opinion
A141581
05-05-2017
THE PEOPLE, Plaintiff and Respondent, v. ANDRE MONCREASE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. C170381)
A jury found defendant Andre Moncrease guilty of second degree murder (Pen. Code, § 187, subd. (a) ) and possession of a firearm by a felon (§ 29800, subd. (a)). The murder victim, 19-year-old Tianna Leui, worked as a prostitute, and Moncrease was her pimp.
Further statutory references are to the Penal Code unless otherwise indicated.
On appeal, Moncrease contends he was denied effective assistance of counsel when defense counsel failed to object to certain evidence admitted at trial. Specifically, he contends defense counsel should have objected to the following: (1) expert testimony on the culture of prostitution and pimping, (2) the testimony of two other prostitutes describing Moncrease's prior conduct with them, (3) evidence of witnesses' fear of testifying, and (4) a police officer's testimony that he did not believe a witness's statement.
We conclude Moncrease has not demonstrated that he received ineffective assistance of counsel and, therefore, affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Around 2:59 a.m., on July 12, 2012, Oakland Police Officer Mathias Sather responded to a callout to the Starlite Motel on MacArthur Boulevard; dispatch reported an unresponsive woman was bleeding heavily in room 11. The motel was a U-shaped two-story building with a parking lot in the center. Sather went to room 11, which was on the second floor, and found the door partially open. Room 11 was actually a suite consisting of two rooms and a bathroom. The exterior door opened to a front room with a bed and a small kitchen area. An interior door led to second room that had a bed, dressers, a closet, and a bathroom. The front room was dark.
Sather went to the second room and saw Leui lying on a bed, covered in blood. A man, later identified as Olajuwon Lewis, was performing chest compressions on Leui, while also talking on the phone to a 911 dispatcher. Paramedics soon arrived, and Leui was declared dead at 3:08 a.m. She died of a single gunshot wound to the face.
A pathologist conducted an autopsy the day after Leui's death. He testified the bullet travelled through her jugular vein and carotid artery and severed the spinal cord. The pathologist opined Leui would have lost consciousness within about 15 seconds of being shot, and her heart would have stopped within four or five minutes.
In September 2012, Moncrease was arrested on International Boulevard. A jury trial began in December 2013. It was undisputed that Moncrease was a pimp, and was known as "Banky." Leui worked as a prostitute for Moncrease and was considered his "main girl." Lewis was also a pimp, and his main girl was Nikko.
Lewis described Moncrease as his "partner." They were friends and they hung out together. Moncrease had a car but no identification card; Lewis had an identification card but no car. So Moncrease would give Lewis rides, and, in exchange, Lewis would rent motel rooms. Leui and Nikko would stay in the motel rooms, and Lewis and Moncrease would stay there most nights, as well. Leui and Nikko would go out to work as prostitutes together. They worked on International Boulevard, which was referred to by prostitutes and pimps as the "track." In the month before Leui's murder, Lewis rented room 11 at the Starlite Motel.
Lewis testified that, on the night of July 11, 2012, he and Moncrease rode up and down the track, getting high and watching Leui and Nikko. After a couple hours, Moncrease dropped Lewis off at an apartment building on 82nd Avenue, where Lewis had a girlfriend. Lewis stayed there a couple hours and then returned to the Starlite Motel. He did not recall the time he arrived at the motel, but it was in the early hours of the morning. Lewis testified that he noticed the door of room 11 was slightly open. The front room was empty. He walked into the second room and saw Leui lying on the bed. Lewis testified that Leui was alive; he said she was holding her neck, bleeding and gasping for air. He became panicked and called 911. The 911 call was played for the jury. In the 911 call, Lewis did not say Leui was alive when he found her. Instead, he told the dispatcher, "I walked in and saw my partner, my roommate, and she's dead."
Police officers and paramedics arrived. An officer took Lewis to the front room of the motel suite and sat him at a table in the kitchen area. Lewis's cell phone kept ringing, but he did not answer. He was taken to the Oakland Police Department and interviewed.
At trial, Lewis denied seeing anyone come out the second room where he found Leui. In his police interview conducted the day of Leui's murder, however, Lewis told the police he did see who came out of the second room, but he was afraid to tell them who it was. Lewis said, "I seen the person come out if I tell y'all who it was I'm—I'm a—I'm a be killed." He said his life was in jeopardy. A recording of the police interview was played for the jury.
Lewis testified that as he walked toward room 11, he saw a "guy [he] knew" come down a set of stairs on the right side of the motel. (Lewis took the stairs on the left side of the motel.) He knew the man was a pimp, and he went by many names, including Derrick, "D Money," and "D." Lewis admitted he did not mention these names to the police. In contrast, in his police interview, Lewis told the police he saw someone who went by "B-Time" in the vicinity of the motel.
Sintoya Fields testified she was in room 11 when Leui was killed. Fields worked as a prostitute on International Boulevard and was friendly with Leui. When Fields was working on International Boulevard, she would see Leui every day and knew her as "Bank Roll." Fields identified Moncrease as Leui's pimp.
According to Fields, shortly before Leui was killed, she called Fields and told her she was going home, and Fields would not see her anymore. Leui wanted to say goodbye, so Fields walked to the Starlite Motel to say goodbye. Leui greeted Fields in the parking lot of the motel, and they walked up the stairs to the landing of Leui's motel suite. Fields stayed outside and smoked a cigarette, and Leui went inside. Fields finished her cigarette and then went into the motel suite. Lewis, another man, and three women were in the front room, but Fields did not see Leui or Moncrease. The door to the second room was closed. She heard Leui and a man arguing. After a few minutes, Leui and Moncrease came out of the second room. They were still arguing, and Moncrease slapped Leui in the face. Moncrease told Leui to go back into the second room, and she did. Fields remained in the front room. The door to the second room was not completely closed, and Fields could see Moncrease "walking up in [Leui's] face." Fields saw, through the crack in the door, "a [bed] sheet go up and then a[n] orange and red flame go off in the room. A gunshot went off in the room." Fields saw Moncrease standing at the foot of the bed and pointing a gun toward the head of the bed. She did not see anyone other than Leui and Moncrease in the second room. Fields quickly left the motel suite because she was scared. She ran home to her mother's house, and she did not go to the police.
In addition, Fields talked with Leui a couple weeks before she was killed, and Leui seemed "like she was just tired of the game" and "[l]ike she wanted to go home."
Eventually police officers came to talk to Fields. At first, she told the officers it was her sister who witnessed the shooting. Fields testified that she initially lied to the police, "Because I didn't want to get myself caught up in this." At trial, Fields was still very scared to testify. She had failed to appear as witness for the trial, and was taken into custody to secure her testimony.
A motel guest who was staying next door to room 11 the night Leui died also testified. In July 2012, James Dinslage was staying at the Starlite Motel in room 10, a suite with two rooms and a bathroom. The front room, where Dinslage had his bed, shared a wall with room 11. Around 2:20 or 2:30 a.m. on July 12, 2012, he heard loud arguing. Dinslage could not tell whether the voices were male or female, but it sounded like there were at least three people and a "heated exchange." He also heard "[s]omething hit the wall a few times pretty hard" during the arguing. This lasted about 25 to 30 minutes and then died down. Then he heard quiet, muffled voices, and about 15 or 20 minutes after the argument, there was a loud noise or crack like a door slamming. After the loud noise, it was silent for five or 10 minutes and then he heard some rustling outside. The police arrived about 10 to 15 minutes after the loud noise.
The prosecution presented DNA evidence indicating Moncrease had been in room 11. A police technician recovered a cigarette butt from a window sill in the room where Leui was found. Criminalist Bonnie Cheng extracted biological material from the cigarette butt and developed "a single source male DNA profile." Cheng testified the DNA profile would occur once in a 186 sextillion. She compared this DNA profile to a DNA profile for Moncrease and concluded he was a possible contributor.
Shawn Knight testified as an expert in "cell phone record interpretation and cell tower analysis." Call records for Lewis's cell phone showed a call was made to 911 at 2:51 a.m. on July 12, 2012. The call lasted over 15 minutes.
A phone call from Moncrease's cell phone made at 2:49 a.m. that day showed the phone was located within the cell tower sector that included the Starlite Motel. Subsequent calls from his cell phone indicated the phone travelled west in Oakland. The next call was made at 3:05 a.m., and the phone had moved from its 2:49 a.m. location. At 3:25 a.m., Moncrease's phone was near 48th Avenue and International Boulevard. At 4:22 a.m., the phone was back in the area of the Starlite Motel. At 4:37 a.m., Moncrease's phone was back in the area of 48th Avenue and International Boulevard, where it remained for some time. Between 2:49 a.m. and 4:17 a.m., Moncrease's phone called Lewis's phone approximately 14 times. The calls were all 37 seconds or shorter, suggesting Lewis's phone never answered the incoming calls.
Leui's cell phone's last phone call before Leui was pronounced dead was made at 11:46 p.m. July 11, 2012. At 3:33 a.m. on July 12, Leui's cell phone received a call from Lewis's cell phone. At that time, Leui's phone was near 48th Avenue and International Boulevard. The call lasted 44 seconds. Thus, after Leui was killed, her cell phone and Moncrease's cell phone were in the same area of 48th Avenue and International Boulevard around the same time.
There was no cell tower information for this call.
The jury also heard recorded jail phone calls Moncrease made after he was arrested. For example, on September 15, 2012, Moncrease had a lengthy telephone conversation with his mother and two other people. Moncrease asked, "Where all my girls at?" and his mother responded, "At the motel." He also said, "That bitch wanted that cat back." He continued, "She wanted her cat back, so I—I told the bitch, 'Fuck that cat.' " Later in the conversation, his mother asked, "What's—what's goin' on with the—with the gun?" Moncrease said, "What are you talkin' about?" His mother answered, "I'm talkin' about the murder weap . . ." Moncrease responded, "Oh, oh, oh. What?! You talkin' about what? You talkin' about this on the phone?" His mother said, "I don't care. I know you didn't do it." Moncrease, said, "Get off the phone. Get off the phone. Get off the phone, Mama. You're gonna be—a jail phone that's recordin' everything." A little later, another person on the phone call said, "You're not 'posed to say nuttin' 'bout no fuckin' gun." Moncrease said, "Yeah, yeah. She send a nigga to the river. You need to just get off the phone and lay down."
As will be seen, an expert explained that a prostitute who wants "her cat back" wants to leave prostitution.
Oakland Police Sergeant Holly Joshi testified as an expert in human trafficking, sexual exploitation, and pimping and pandering. She worked as an undercover officer on International Boulevard, as a lead investigator in cases involving human trafficking, and as a supervisor in the Vice and Child Exploitation Unit. In her undercover work, Joshi met with hundreds of prostitutes and johns (customers), and dozens of pimps. She testified there is a distinctive subculture of pimping and prostitution in Oakland. The subculture in the Bay Area is known as being very violent, and there are many "rules to the game." It is also competitive. Joshi explained it is very difficult for a prostitute to work on her own without a pimp. It is very common for prostitutes to live in motels and move from motel to motel. Joshi explained that "going outside" is a euphemism for working (as a prostitute) and, if a pimp says a prostitute "want[s] her cat back," it means she wants to leave the life of prostitution. "In pocket" means a prostitute is following the rules. A prostitute who breaks the rules is "out of pocket" and is subject to punishment, which "can be deprivation from food, deprivation of sleep, all the way to beatings and sometimes killing." In Joshi's experience, it is common for a prostitute to defend her pimp's violent actions, and to blame herself when she is punished for being out of pocket. It is common for prostitutes to follow the rules and then become "fed up at some point." Guns are common in the pimp and prostitute lifestyle. In Oakland, girls often have tattoos with their pimp's name. It is very common for a pimp to pressure a girl to cut off ties with her own family and to bring her into his life and family.
She testified, "[T]he moment you put out an undercover police officer [posing as a prostitute], it usually attracts pimps within the first couple of hours. It's known as a pimp controlled environment."
Leui had many tattoos including one that read "Andre." She also had "Bank Roll" tattooed on the back of her thighs, and her own nickname was likely a reference to Moncrease's nickname "Banky."
In cross-examination, Joshi agreed that prostitutes sometimes change pimps and this does not always result in violence. In some cases, a prostitute may go from one pimp to another and then return to the first pimp. Prostitutes are also in danger from tricks (customers). The pimp is normally in the area where his prostitute is working, so he can collect the money after each trick. The pimp can also respond quickly to retaliate against a trick who assaults his prostitute. Joshi testified in cross-examination that she had heard of a few pimps who were not violent with their prostitutes.
The prosecution also presented the testimony of two prostitutes who worked for Moncrease. Aundrea Gilbert was 24 years old at the time of trial. She had worked as a prostitute since she was 15 years old, and had several different pimps. She was familiar with the pimp dynamic and described pimps as "depend[ing] on a woman to do everything for them." "[T]hey expect you to give them money. They expect you to listen to everything that they tell you to do. You have to clean up after them. You have to wash their clothes, basically be their maid at the same time." Gilbert explained there were many rules regulating prostitutes such as not talking to other women, not talking to other pimps, "keep[ing] your head down on the ground," and making a certain amount of money. She said, "If you don't follow any of the guidelines that they give you, you'll most likely get hit."
Gilbert chose Moncrease to be her pimp, and he was her pimp for about a year and a half in 2010 and 2011. She had "Banky" (Moncrease's nickname) tattooed on her left shoulder. She described Moncrease as a "good guy," and said it was hard to testify because "the feelings I have for him are still going to be here regardless if he goes to jail or not." Moncrease regularly hung out at a pink house on 48th Avenue and International Boulevard, and Gilbert would go there to pay him.
Gilbert stopped working for Moncrease before he became Leui's pimp.
Gilbert testified that Moncrease hit her three or four times. In one incident, Moncrease started hitting her and tried to drag her out of his car. Then he hit her in the head with the butt of a gun. In another incident, Moncrease slapped Gilbert in the face twice.
The most recent incident occurred in June 2012, after Gilbert stopped working for Moncrease. She was walking up the street, and Moncrease stopped his car and got out. He ripped her jacket "into like a million pieces" and threw her to the ground. Gilbert was scared and called the police. Gilbert did not have a pimp at that time, and she understood that Moncrease was looking for the money she earned from prostitution because he still felt entitled to it.
She testified, "I wasn't working for nobody, and he know that I wasn't working for nobody. So he felt like since I wasn't working for nobody and I wasn't working for him, I still had to pay him."
Gilbert and Moncrease reached a truce before he was arrested. She agreed to "stay away from the 40's" (presumably referring to International Boulevard from 40th to 49th Avenues) and he agreed to "[s]top putting his hands on" her. After he was arrested, Moncrease called Gilbert from jail. He never threatened her in the phone calls, but he accused her of selling him down the river.
In cross-examination, Gilbert admitted that she told a detective she lied to people her whole life. She had seen Lewis with a gun. Gilbert chose Moncrease to be her pimp because she observed him and saw that he treated people decently. She agreed that a pimp is supposed to take care of his prostitutes and Moncrease took care of her. He bought her clothes and got her things she needed.
Whitney Scott worked as a prostitute, and Moncrease was her pimp off and on for about five or six months. She testified that she loved Moncrease and felt loyal to him. At some point, Scott and Leui worked for Moncrease at the same time. Scott left Moncrease (as her pimp) a number of times, but she kept going back to him. He never beat her up for leaving or returning. When Moncrease was arrested on International Boulevard, Scott was working for him on the track. Moncrease made a hand gesture to Scott meaning that she should "stay down," that is, keep working.
Scott testified that Moncrease regularly carried a gun, and it was always the same gun. Scott had seen him load the gun using a T-shirt. She understood that he used a T-shirt to keep his fingerprints off the gun. On one occasion, Moncrease pointed a loaded gun at Scott's head in a joking manner. She told him not to do it again, and he did not.
According to Scott, Moncrease was not violent with her except for one incident after Leui was killed. Scott mentioned Leui to Moncrease, and he reacted by choking her. His mother stopped him.
Scott testified Moncrease could have done a lot worse to her, and she deserved it. She said, "I said something about [Leui] that I shouldn't have and it was not okay and I needed to be checked. I deserved—you know, I deserved it."
In cross-examination, Scott testified that Moncrease would watch his girls to make sure they were safe. He went shopping with Scott and Leui and bought them clothes. He paid for Leui to have her nails done. She testified that some pimps have quotas and beat their prostitutes when they did not make their quota, but Moncrease did not give Scott a quota and did not beat her. Leui left Moncrease on more than one occasion, but Scott never saw Moncrease treat her violently.
The jury found defendant Moncrease guilty of second-degree murder and possession of a firearm by a felon. He received a sentence of 40 years to life in prison.
DISCUSSION
To prevail on a claim of ineffective assistance of counsel in violation of the federal and state Constitutions, a criminal defendant "must demonstrate both deficient performance under an objective standard of professional reasonableness and prejudice under a similarly objective standard of reasonable probability of an adverse effect on the outcome." (People v. Waidla (2000) 22 Cal.4th 690, 718.) "When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance. It is particularly difficult to prevail on an appellate claim of ineffective assistance." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Our Supreme Court has often observed that deciding whether to raise an evidentiary objection is largely tactical, "and a case in which the mere failure to object would rise to such a level as to implicate one's state and federal constitutional right to the effective assistance of counsel would be an unusual one." (People v. Seumanu (2015) 61 Cal.4th 1293, 1312 (Seumanu).) "An attorney may well have a reasonable tactical reason for declining to object, and ' "[i]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation." ' " (Id. at pp. 1312-1313.)
Here, Moncrease contends defense counsel was ineffective in failing to object to four pieces of testimony admitted at trial. After considering each of the four areas of testimony Moncrease claims defense counsel should have objected to, we conclude this is not the unusual case in which failure to object rises to the level of ineffective assistance.
1. Expert Testimony on the Culture of Prostitution and Pimping
In November 2013, the prosecution filed a motion in limine requesting that Sergeant Joshi be allowed to testify as an expert in pimping and pandering "to discuss such things as recruitment, manipulation, roles of pimps vs. roles of prostitutes, victimology, 'rules' of the typical relationship, terminology and the overall sub-culture." At a pretrial hearing a few weeks later, defense counsel indicated that he would not pursue an Evidence Code section 402 hearing for Joshi because he believed some of her testimony would be favorable to the defense. Defense counsel's belief that some of Joshi's testimony would be helpful to the defense could also serve as a reasonable tactical basis not to object to Joshi's testimony. (See People v. Kelly (1992) 1 Cal.4th 495, 520 (Kelly) [failure to object to admission of confession was not ineffective; "Although the confession was harmful in some respects, competent counsel could reasonably believe it helped the defense in other respects"].)
Moncrease suggests that defense counsel was unprepared to respond to the motion in limine because, at a pretrial hearing on November 21, 2013, "he had no[t] even obtained the witness's resume." But, as the Attorney General points out, the prosecutor stated at that hearing that she was waiting to receive the resume so that she could forward it to defense counsel. Thus, defense counsel was not the cause of the delay in reviewing Joshi's resume.
Moncrease asserts that, in fact, nothing in Joshi's testimony was helpful to the defense. But we cannot say it was outside the bounds of reasonable assistance for defense counsel to believe that he could elicit testimony helpful to the defense. And it appears that defense counsel was able to elicit some favorable testimony. Joshi agreed that prostitutes sometimes change pimps, even leaving one pimp for another and then returning to the first pimp, and this does not always result in violence against the prostitute. Defense counsel established that prostitutes are in danger from their customers, and he elicited testimony that Joshi had heard of pimps who were not violent with their prostitutes.
We assess counsel's conduct " 'under the circumstances as they stood at the time that counsel acted or failed to act.' " (People v. Scott (1997) 15 Cal.4th 1188, 1212.)
In addition, defense counsel may have failed to object to Joshi's testimony on the reasonable assumption such an objection would be overruled. (See People v. Samayoa (1997) 15 Cal.4th 795, 848 [counsel's failure to object could have been premised on "a rational tactical basis, such as the reasonable assumption that such objections would be overruled"].) "[E]xpert testimony is admissible on any subject 'sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.' " (People v. Brown (2004) 33 Cal.4th 892, 905, quoting Evid. Code, § 801, subd. (a).) Here, Oakland's subculture of pimping and prostitution is sufficiently beyond common experience that Joshi's testimony could be useful to the jury. (See United States v. Taylor (9th Cir. 2001) 239 F.3d 994, 998 (Taylor) [expert testimony on the relationship between prostitutes and their pimps is not, by and large, a subject of common knowledge].) In Taylor, the Ninth Circuit Court of Appeals concluded that such expert testimony may be relevant because "[a] trier of fact who is in the dark about that relationship may be unprepared to assess the veracity of an alleged pimp, prostitute, or other witness testifying about prostitution." (Ibid.) Similarly, in this case, Joshi's testimony provided context for the jury to understand the victim's relationship with Moncrease and to assess the veracity of trial witnesses Lewis, Fields, Gilbert, and Scott. Joshi's testimony was also relevant to explain phrases Moncrease used in his jail phone calls such when he told his mother Leui "wanted her cat back." Thus, defense counsel could reasonably have believed an objection to Joshi's testimony would be overruled.
In any event, "[w]here a sound legal basis exists for the admission of evidence, an attorney is not ineffective for failing to object to its introduction." (Seumanu, supra, 61 Cal.4th at p. 1313.) In this case, there is a sound legal basis for admitting expert testimony under Evidence Code section 801 and Taylor, supra, 239 F.3d 994, and the arguments Moncrease now raises on appeal are not well-founded. First, he argues that Joshi's testimony was improper evidence used to argue he was predisposed to commit this murder, but Joshi did offer an opinion on Moncrease's character or disposition. Second, Moncrease claims Joshi's testimony was cumulative to Fields' testimony, but the prosecution was not obligated to rely solely on Fields to establish background facts on the culture of pimping and prostitution. Third, he argues Joshi's testimony was unduly inflammatory and prejudicial. But Joshi's testimony was relevant, and we cannot say it " ' "uniquely tend[ed] to evoke an emotional bias against defendant as an individual." ' " (People v. Valdez (2012) 55 Cal.4th 82, 134.) As a result, we cannot say defense counsel rendered ineffective assistance in failing to object to Joshi's testimony. (See People v. Bradley (2012) 208 Cal.App.4th 64, 90 (Bradley) [failure to raise a meritless objection does not constitute ineffective assistance of counsel].)
2. Testimony by Gilbert and Scott on Moncrease's Prior Conduct
In another motion in limine, the prosecution sought to admit evidence that Moncrease physically threatened and assaulted Gilbert (through Gilbert's testimony) and that he regularly carried, brandished, and operated a handgun (through Scott's testimony). The prosecution argued the evidence was admissible "in order to prove (1) that [Moncrease] had the intent and/or the motive to kill Ms. Leui, (2) that [Moncrease] was operating under a common plan or scheme of violence and gun use against prostitutes who threatened his reputation or behaved inappropriately under the 'rules of the game' and (3) that [Moncrease] had the requisite knowledge to understand the violent and threatening nature of the uncharged acts and thus the requisite knowledge to understand that the nature of the charged murder and use of a gun such that his actions were not a mistake or accident."
Moncrease contends defense counsel was deficient in failing to object to this evidence, but the record sheds no light on why counsel acted as he did. As with the expert testimony, it seems likely that defense counsel declined to object to these witnesses because he believed some of their testimony would be favorable to the defense. (See Kelly, supra, 1 Cal.4th at p. 520.) Defense counsel elicited testimony from Gilbert that she chose Moncrease to be her pimp after watching him and observing that he treated people decently. She agreed that Moncrease took care of her when he was her pimp. Gilbert also testified that Moncrease was no longer her pimp, and they had reached a "truce." Scott testified that she left Moncrease a number of times, but he never beat her up. Defense counsel also elicited Scott's testimony that Leui left Moncrease more than once, and Scott never saw Moncrease treat her violently. Defense counsel could reasonably determine that this testimony was helpful to show that, for a pimp (and it was undisputed that he was a pimp), Moncrease was relatively decent and nonviolent. Defense counsel could also reasonably believe evidence that Gilbert and Scott were able to leave Moncrease without serious repercussions was favorable to the defense. (While Gilbert testified that Moncrease "put[] his hands on her" and still wanted money after she left him, she did not suggest that he threatened her life after she left him, and Scott testified that she left Moncrease and returned without suffering any violence.)
Further, "a sound legal basis exists for the admission of" Gilbert's and Scott's testimony. (Seumanu, supra, 61 Cal.4th at p. 1313.) While Evidence Code section 1101, subdivision (a) prohibits admission of "evidence of a person's character . . . to prove his or her conduct on a specified occasion," "[n]othing in [section 1101] prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact . . . such as motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident . . . other than his or her disposition to commit such an act." (Evid. Code, § 1101, subd. (b).) As the prosecution argued in its motion in limine, evidence of Moncrease's other acts was relevant to show intent, motive, common scheme, and absence of mistake or accident. And the other- acts evidence was far less inflammatory than the charged offense of murder. (Cf. People v. Eubanks (2011) 53 Cal.4th 110, 144 [potential for such prejudice decreased when evidence of uncharged acts is " 'no stronger and no more inflammatory than the testimony concerning the charged offenses' "].) Accordingly, defense counsel was not ineffective in failing to object to the testimony of Gilbert and Scott. (See Bradley, supra, 208 Cal.App.4th at p. 90.)
The jury was also given instruction CALJIC No. 2.50, relating to evidence of other crimes. The jury was instructed that evidence of prior crimes could not be considered to prove character or disposition, but could only be considered for the limited purpose of showing "characteristic method, plan or scheme" and "motive for the commission of the crime charged."
3. Evidence of Witnesses' Fear of Testifying
Detective Bradley Baker interviewed Lewis the day Leui's body was discovered. He also interviewed Fields (the eyewitness) on September 9 or 10, 2012. Baker testified about both interviews and provided foundation for the recordings of the interviews, which were played for the jury.
Moncrease contends defense counsel "was unprepared to properly object to the testimony [of] Detective Baker that Ms. Fields 'appeared to be extremely afraid that she was going to lose her life, bad things were going to happen to her because of her involvement [in this] case.' " Moncrease also argues defense counsel "failed to make a proper objection to the testimony by the police officer that Lewis appeared to be fearful regarding naming the person who committed the homicide."
These arguments lack merit because " ' " '[e]vidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible.' " ' " (Seumanu, supra, 61 Cal.4th at p. 1313.) Moreover, there is no possible prejudice from defense counsel's failure to object to Baker's testimony because Fields herself testified that she was afraid to be involved in the case, and the jury viewed Lewis's videotaped interview, during which he said he was afraid he would be killed if he identified the person he saw come out of the second room where Leui was found.
4. Officer Testimony on Lewis's Credibility
Finally, Moncrease contends, "Defense counsel further failed to object to the testimony of the detective that the officer did not believe Lewis's statement that he had seen someone other than [Moncrease], a person called B-Time, come from the room after the shooting." This contention fails because defense counsel did object.
Baker testified that Lewis was evasive in the first portion of the interview. He described Lewis: "Initially he told us he wasn't there at all. He just strolled up to the motel and found her. And then later admitted that there was an individual named B-Time that he saw come out of the room. I didn't believe there was ever a B-Time." At this point, defense counsel objected on the ground that what Baker believed was irrelevant. The trial court sustained the objection and struck Baker's answer.
In summary, Moncrease has failed to demonstrate that defense counsel provided constitutionally inadequate assistance in failing to make certain evidentiary objections.
DISPOSITION
The judgment is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.