Opinion
B295688
06-19-2020
THE PEOPLE, Plaintiff and Respondent, v. KAYSHON MOODY, Defendant and Appellant.
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA453067) APPEAL from a judgment of the Superior Court of Los Angeles County, Curtis B. Rappe, Judge. Affirmed. Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant and appellant Kayshon Moody of two counts of first degree murder and three counts of robbery, arising from three separate incidents. In the two robbery-murders, Moody shot unresisting store employees in the back. He appeals his convictions, asserting claims of evidentiary error, prosecutorial misconduct, ineffective assistance of counsel, and sentencing error. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts
a. Robbery of Garcia at Big Tomy's restaurant
On January 17, 2017, at approximately 2:00 a.m., Moody entered Big Tomy's restaurant on West Pico Boulevard in Los Angeles, wearing a sweatshirt with the hood pulled over a baseball cap. He asked employee Francisco Garcia for a soda. Moody placed cash on the counter to pay for the beverage. As Garcia began to place it in the cash register, Moody displayed a gun, pulled back the slide, pointed the gun at Garcia, and demanded "all the money." Garcia removed the cash drawer, which contained between $400 and $500. Moody told Garcia to put the drawer inside a bag he was carrying, but it did not fit. Moody grabbed the drawer, said "Happy New Year," and ran away. Garcia called police. The restaurant's video cameras recorded the robbery. Tory Coronel, the mother of Moody's child, identified Moody as the robber in the video.
b. Robbery and murder of Rahman
Later that morning, at approximately 3:30 a.m., Moody robbed and shot Mohammed Rahman, who was working at a Chevron minimarket located on North Vermont Avenue in Los Angeles. The incident was captured by the store's video cameras, which showed the following. Moody, wearing a baseball cap, entered the market, poured himself a soda from the soda fountain, put a plastic lid on top, and selected merchandise from the shelves. He then set the soda cup on the cashier counter, directed Rahman to give him "Swisher Sweets" cigars from behind the register, and took money from his pocket as if to pay for the items. Moody then pulled a gun from his waistband, racked the slide, and pointed it at Rahman. As Rahman moved away, Moody fired three shots. Rahman collapsed in a broom closet. Moody took the cash register drawer, ran to a white Nissan Versa, and drove away.
Rahman suffered four gunshot wounds: two to his back, which were both fatal wounds, and two to his arm. Three Winchester nine-millimeter Luger cartridge casings were recovered at the scene, along with one live round of the same make. Coronel identified Moody as the assailant in the video. She owned a white Nissan Versa, and Moody regularly drove it. Moody's DNA was found on the soda cup lid.
c. Robbery and murder of Oganesyan
On January 18, 2017, at approximately 11:30 a.m., Moody, along with accomplice James Eastland, robbed the Golden State Collective marijuana dispensary located on Venice Boulevard, and shot and killed employee Ovik Oganesyan. The dispensary was located on the second floor of a strip mall. It was comprised of four rooms: a lobby with customer seating; a reception area, separated from the lobby by a locked door and a Plexiglass window; a showroom where products were displayed; and a back office that contained a safe. To allow a customer to enter the reception area and showroom, an employee had to press a buzzer to unlock the door linking the lobby and reception area.
Eastland is not a party to this appeal.
Video footage from the dispensary showed Moody and Eastland, both wearing baseball caps, enter the dispensary lobby. Moody carried some bags. Eastland sat in the lobby while Moody conferred with Oganesyan at the reception window through the Plexiglass divider. After checking Moody's paperwork, Oganesyan buzzed Moody into the reception area. As Oganesyan and Moody entered the showroom, Moody pulled a gun from his waistband, racked it, and fired several shots at Oganesyan, who fell to the ground. Moody then ran to the reception area to let Eastland in, dropping his paperwork—including his California driver's license—on the way. Unable to find the buzzer, Moody shot out the Plexiglass window. Eastland threw the bags through the reception window; as he did so, a plastic bottle fell from one of them.
Moody kicked Oganesyan, who was calling for help, and appeared to attempt to shoot him again; however, the magazine dropped from the gun. Moody and Eastland loaded the bags with merchandise from the showroom, including jars from the dispensary cabinets. Moody also ransacked the office and took the cash register drawer. Moody jumped through the reception area window, Eastland kicked down the door, and the two men left by way of the back stairs.
Officers responding to the scene found Oganesyan on the floor in the showroom doorway, not breathing. He had suffered three gunshot wounds: two fatal wounds to his back, and a potentially fatal wound to the back of his thigh.
Coronel identified Moody as the shooter in the video. Ten Winchester nine-millimeter Luger cartridge casings were recovered at the scene, as were five fired bullets and a magazine. Two of those bullets penetrated the dispensary's wall and entered an insurance office next door. Also found at the scene were Moody's California driver's license and other paperwork in his name, and the plastic bottle that fell from the bag. The bottle was filled with gasoline.
d. Other crimes evidence
The People presented evidence of three other crimes committed soon after the charged offenses.
(i) Robbery of Alnakoud
On January 18, 2017, at approximately 9:15 p.m., Braien Alnakoud was working at the American Market liquor store on Lake Street in Glendale. Eastland entered the store, wearing a white baseball cap. He asked for Advil. Alnakoud could not find any, but brought Eastland a substitute. Eastland pulled a gun from his waist area, pulled back the slide, pointed it at Alnakoud's face, and told him to open the cash register. Alnakoud complied. The register contained approximately $1,000. Eastland took the cash and began to leave. Alnakoud pushed an alarm button. Eastland returned, pointed the gun at Alnakoud again, and took some Swisher Sweets cigars from the store. The robbery was recorded by the store's video system.
When shown a pretrial six-pack photographic lineup, Alnakoud was unable to identify the robber. However, he recognized a photograph of Moody in a different six-pack as an individual who had lived in the area and had been a customer. An officer found a white baseball cap 20 to 30 feet from the market, that appeared to be the one worn by the robber. It contained Moody's and Eastland's DNA.
(ii) Las Vegas hit and run and shooting
The next day, January 19, 2017, at approximately 5:30 p.m., Daniel Robles was stopped at a red light in Las Vegas when he was rear ended by a white Nissan Versa with California license plates. Two Black males were inside the Nissan, which drove off without stopping. The driver was wearing a baseball cap. Robles followed the Nissan for approximately one mile, in an attempt to get the license plate number. When the Nissan turned down a dead-end street, the driver fired 13 to 14 gunshots at Robles, three or four of which hit Robles's car. Eleven Winchester nine-millimeter Luger cartridge casings were recovered at the scene.
(iii) Las Vegas attempted carjacking and shooting
That same day, between 6:15 and 6:30 p.m., Anthony Rodriguez was driving home from work in Las Vegas. His five-year-old daughter was in the vehicle's back seat. He stopped at his community mailbox to check the mail. He noticed a light-colored Nissan stopped behind him and a man approaching, but thought nothing of it. As Rodriguez was stepping back into his car, an African-American male yanked on the car door, displayed a gun, and shouted, "Give me the fucking car." Because Rodriguez's daughter was inside the car, he refused to comply. He pulled the door closed and hit the gas. The assailant fired three gunshots at the car. One bullet pierced the driver's side window and Rodriguez's chest; the other two hit the rear driver's side door and window. Rodriguez drove himself to the hospital, where he was treated. Three weeks later he had the bullet removed, and gave it to law enforcement officers. Three expended cartridge casings—all Winchester nine-millimeter Lugers—were recovered near Rodriguez's mailbox. When shown a pretrial six-pack photographic lineup, Rodriguez was unable to identify the perpetrator.
e. Moody's arrest and further investigation
On the afternoon of January 20, 2017, Los Angeles Police Department detectives located Moody driving the Nissan in Los Angeles. Eastland was in the front passenger seat. Detectives took both men into custody. The Nissan had collision damage to its front, and a bullet hole and bullet impact marks on the side, consistent with the driver leaning out his window and shooting toward the rear of the car.
Inside the vehicle's driver's side door pocket was a loaded, blue steel, nine-millimeter Beretta Storm semiautomatic firearm. Also inside the Nissan, officers found nine-millimeter ammunition, including a box of Winchester brand bullets; a "magazine extender"; six baseball caps in various colors; four pairs of gloves; Swisher Sweets cigars; vials or jars consistent with those sold at the Golden State dispensary; loose and bundled marijuana; and Moody's California identification card.
A magazine extender is a device that increases the capacity of the magazine.
Ballistics analysis showed that the three cartridge casings found at the Chevron station, the 10 cartridge casings found at the dispensary, cartridge casings found at each of the Las Vegas crime scenes, and the bullet removed from Rodriguez's wound, were all fired from the nine-millimeter Beretta Storm firearm found in the Nissan with Moody when he was arrested. Moody's DNA was found on that Berretta Storm gun, including on the trigger, the grip, and the slide; his DNA was also found on the magazine.
f. Eastland's testimony
In a negotiated disposition, Eastland pled guilty to the murder of Oganesyan and the robbery of Alnakoud. In exchange for his testimony, he was to be sentenced to 40 years to life.
Eastland testified that Moody told him he wanted to commit a robbery to acquire money to purchase music equipment. Moody said he knew of a marijuana dispensary that did not have a security guard, and would be an "easy win." They discussed plans for the robbery. Moody brought the gun with him to the dispensary. En route, Moody instructed Eastland to obtain reusable bags from a grocery store. He gave Eastland a baseball cap and told him to put it on. Eastland described the commission of the robbery-murder consistently with the video. After the robbery, Moody and Eastland threw away the cash drawer, along with their sweatshirts and hats; later, they removed the marijuana from the jars and placed it in plastic baggies.
That evening, Moody told Eastland to commit the American Market robbery for him, because he needed more money and the store personnel knew him. Moody gave Eastland the gun and a baseball cap, and told him how to commit the robbery. He instructed Eastland to get "Swishers" and pain pills in addition to money. Eastland followed Moody's directions, and Moody waited in the car. The baseball cap fell from Eastland's head as he ran back to the car.
Moody and Eastland then drove to Las Vegas. There, they bought another magazine and ammunition; visited some of Moody's associates, where Moody bragged about the dispensary robbery; divided the marijuana into smaller baggies; and gambled, using the stolen money. Moody fell asleep at the wheel and rear-ended Robles's car. When Robles pursued them, Moody fired eight or nine shots at him. Moody accidentally shot out the Nissan's back window and put a bullet hole into the car. The duo then drove back to Los Angeles. Eastland denied that he and Moody attempted to commit a carjacking.
The defense presented no evidence.
2. Procedure
A jury convicted Moody of the first degree murders of Rahman and Oganesyan (Pen. Code, § 187, subd. (a)) and the second degree robberies of Rahman, Oganesyan, and Garcia (§ 211). It found Moody personally and intentionally discharged a firearm in commission of the murders and robberies of Rahman and Oganesyan, proximately causing death (§ 12022.53, subds. (b), (c), (d)) and personally used a firearm in the Garcia robbery (§ 12022.53, subd. (b)). The jury also found true the special circumstance allegations that Moody committed multiple murders (§ 190.2, subd. (a)(3)) and that the murders were committed in the commission of robberies (§ 190.2, subd. (a)(17)(A)).
All further undesignated statutory references are to the Penal Code.
The trial court sentenced Moody to consecutive terms of life in prison without the possibility of parole for each of the murders, plus 50 years to life on the section 12022.53, subdivision (d) firearm enhancements. It imposed a consecutive term of five years for the Garcia robbery, plus 10 years for the section 12022.53, subdivision (b) firearm enhancement. Sentence on the Rahman and Oganesyan robberies, as well as the remaining section 12022.53, subdivision (b) and (c) allegations, was stayed pursuant to section 654. Moody stipulated to paying direct victim restitution. He timely appealed.
The court imposed but stayed a $400 restitution fine, and declined to impose court security and criminal conviction assessments, in light of People v. Dueñas (2019) 30 Cal.App.5th 1157.
DISCUSSION
1. Contentions related to the admission of evidence
Moody challenges admission of the evidence related to his commission of the American Market robbery, the Las Vegas crimes, and domestic violence against Coronel (as described post), as well as evidence related to the bottle containing gasoline, on the theory it was all inadmissible character evidence. Although he characterizes some of these claims as prosecutorial misconduct, the basis for all his contentions is that the evidence was inadmissible. He further argues that his trial counsel provided ineffective assistance by failing to interpose adequate objections.
a. Applicable legal principles
Only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is "broadly defined as that having a 'tendency in reason to prove or disprove any disputed fact that is of consequence' to resolving the case." (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 405 (Bryant); Evid. Code, § 210.) Evidence a defendant committed misconduct other than that currently charged is inadmissible to prove his or her propensity to commit the charged crime. (Evid. Code, § 1101, subd. (a); People v. Cage (2015) 62 Cal.4th 256, 273; People v. Rogers (2013) 57 Cal.4th 296, 325-326.) However, such evidence is admissible if it is relevant to prove, among other things, motive, opportunity, intent, preparation, knowledge, identity, absence of mistake or accident, or common plan or scheme. (Evid. Code, § 1101, subd. (b); People v. Erskine (2019) 7 Cal.5th 279, 295; People v. Jones (2011) 51 Cal.4th 346, 371.) "To be admissible, there must be some degree of similarity between the charged crime and the other crime, but the degree of similarity depends on the purpose for which the evidence was presented." (Jones, at p. 371.) "The least degree of similarity between the uncharged act and the charged offense is required to support a rational inference of intent; a greater degree of similarity is required for common design or plan; the greatest degree of similarity is required for identity." (People v. Gutierrez (2018) 20 Cal.App.5th 847, 859.)
Even if other crimes evidence is admissible under Evidence Code section 1101, subdivision (b), it should be excluded under Evidence Code section 352 unless it has substantial probative value, not outweighed by undue prejudice. (Bryant, supra, 60 Cal.4th at pp. 406-407; People v. Thomas (2011) 52 Cal.4th 336, 354.) A trial court has broad discretion in determining whether evidence is relevant or prejudicial, and we review its evidentiary rulings for abuse of discretion, based on the facts known to the court when the ruling was made. (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 824 (Daveggio); People v. Sanchez (2019) 7 Cal.5th 14, 54; People v. Cervantes (2004) 118 Cal.App.4th 162, 176.)
b. Admission of the American Market and Las Vegas offenses
(i) Additional facts
Prior to trial, the prosecution moved in limine to admit evidence of the American Market robbery and the Las Vegas crimes pursuant to Evidence Code section 1101, subdivision (b). Defense counsel objected on the grounds that discovery was untimely; there was an insufficient showing Moody was involved in the Las Vegas crimes; the crimes were dissimilar; and the evidence was unduly prejudicial under Evidence Code section 352 because the jury would treat it as propensity evidence. The trial court reasoned that the evidence was relevant to prove identity, given that the firearm used in the Las Vegas crimes was the same one used in the charged crimes.
During trial, prior to presentation of the uncharged crimes evidence, defense counsel further objected that evidence of the uncharged crimes would violate the Fifth, Sixth, Eighth, and Fourteenth Amendments. The prosecutor replied that the People were eliciting the evidence to show intent, motive, common plan and scheme, knowledge, identity, and absence of mistake or accident. The parties engaged in no further explanation of the bases for admission or exclusion of the evidence, and the court denied the motion to exclude without further comment. It later gave a limiting instruction stating that the jury could consider the uncharged crimes evidence only on the issues of identity, motive, intent, common plan or scheme, and mistake or accident. The instruction also required that if the jury determined Moody committed the uncharged offenses, it could "not conclude from this evidence that the defendant has a bad character or is disposed to commit crime."
(ii) Discussion
Moody argues that the other crimes evidence should have been excluded because the perpetrator's identity was not at issue, given the videotapes and other compelling evidence proving his identity. Thus, he argues, the other crimes evidence was cumulative and served only to impugn his character and highlight his propensity for violence. Further, he asserts that the Las Vegas offenses were dissimilar to the charged crimes; there was insufficient evidence he was the perpetrator; and the evidence was inflammatory, particularly because Rodriguez's young daughter was in the car when Moody attempted the carjacking. When it became apparent that the uncharged crimes evidence was merely redundant, he argues, defense counsel provided ineffective assistance by failing to renew her objections. He contends that these purported errors deprived him of due process and a fair trial.
Moody is incorrect that his identity was not at issue. His not guilty plea "put all elements" of the offenses "at issue" (People v. Booker (2011) 51 Cal.4th 141, 171; Daveggio, supra, 4 Cal.5th at p. 822) and the People are entitled to prove their case even in the face of a defendant's failure to contest an element. (People v. Tran (2011) 51 Cal.4th 1040, 1048-1049; People v. Steele (2002) 27 Cal.4th 1230, 1243; People v. Jones, supra, 51 Cal.4th at p. 372; People v. Gallego (1990) 52 Cal.3d 115, 172.) Moreover, the defense did not concede that Moody was the perpetrator. In closing, defense counsel argued that more than one contributor's DNA was present on the soda cup lid and the DNA on the gun could have been transferred by someone else. Counsel concluded by urging that the evidence did not identify Moody "as exactly the one in the video. You can see that a crime occurred. However, video plus DNA, that doesn't identify him exclusively. [¶] A gun that he wasn't in exclusive control of, and a car that he wasn't in exclusive control of combined is reasonable doubt."
The American Market robbery was sufficiently similar to the charged robberies to support the inference that Moody acted pursuant to a common design, with the same intent and motive, in all four incidents. All four crimes occurred during the span of a few days. The modus operandi used in each was similar: Moody selected a victim who was working alone, the perpetrator (Moody or Eastland, acting at Moody's direction) wore a cap pulled low to attempt to hide his identity, and pulled a gun after engaging in conduct designed to convince the employee that he was a bona fide customer. In the Chevron robbery, Moody took Swisher Sweets cigars, and he directed Eastland to obtain the same merchandise in the American Market robbery. While this modus operandi was not particularly unique, it did not have to be so. (People v. Anderson (2018) 5 Cal.5th 372, 389 [common features need not be distinctive or unusual]; People v. Landry (2016) 2 Cal.5th 52, 78 [sufficient similarity may exist despite some factual differences between the offenses]; Daveggio, supra, 4 Cal.5th at p. 828.) The evidence was thus relevant to show Moody's plan, intent, and motive. (See People v. Jones, supra, 51 Cal.4th at pp. 370-371 [admission of evidence of prior furniture store robbery properly admitted in charged home invasion robbery-murder; the two crimes were not particularly similar, but demonstrated that defendant intended to rob the victims in both crimes]; People v. Anderson, at p. 389 [evidence defendant committed two prior burglaries was cross-admissible in robbery-murder trial; jury could conclude the prior and charged incidents were not merely a series of spontaneous acts but were part of a plan to steal property repeatedly during daytime burglaries].)
Moody contends that the uncharged crimes evidence may not be considered for any purpose other than proof of identity, because that was the basis for the trial court's original ruling. We disagree. Defense counsel did not object when the prosecutor clarified that the evidence was being presented for other purposes, nor did counsel object to the limiting instruction that allowed the jury to consider the uncharged crimes more broadly.
Arguably, the evidence was such that, if Moody was the culprit, his intent and motive could not reasonably be disputed. (See People v. Foster (2010) 50 Cal.4th 1301, 1331.) But the evidence was also probative for another reason: Moody told Eastland he did not want to personally commit the American Market robbery because store personnel knew him. This circumstance—demonstrating Moody's concern about being identified—provided some proof of his motive to kill in the Chevron and Golden State dispensary crimes, to avoid leaving witnesses who could identify him.
We are not persuaded that, as ultimately presented at trial, evidence of the Las Vegas crimes was probative on the questions of identity, intent, or common plan. The Las Vegas victims did not identify Moody as the perpetrator. He was identified as the culprit in the Las Vegas crimes because his DNA was found on the gun that fired the shots in all the crimes. Thus, while the ballistics evidence tended to identify Moody as the perpetrator in the Las Vegas crimes, the Las Vegas crimes did not independently link him to the California crimes. Nor did the Las Vegas crimes demonstrate a common plan or scheme; they involved very different facts than did the California offenses.
But, even if evidence of all three uncharged crimes was admitted in error, it was manifestly harmless under any standard, in light of the evidence adduced at trial. "It is . . . well settled that the erroneous admission or exclusion of evidence does not require reversal except where the error or errors caused a miscarriage of justice. (Evid. Code, §§ 353, subd. (b), 354.) '[A] "miscarriage of justice" should be declared only when the court, "after an examination of the entire cause, including the evidence," is of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' [Citations.]" (People v. Richardson (2008) 43 Cal.4th 959, 1001.)
Here, each of the three charged offenses was fully captured on videotape. The quality on the videotape from the Chevron robbery-murder was characterized as "outstanding." Coronel, the mother of Moody's child, identified Moody as the person seen committing the crimes in all of the videos. Eastland, Moody's erstwhile friend, likewise identified Moody in all three videos. A detective testified that during the investigation, he viewed a Department of Motor Vehicles photo of Moody, and determined that Moody "definitely looked like the guy in the video in [the Chevron] crime, and also the one from Big Tomy's."
At the Chevron robbery scene, the video showed the robber putting a plastic lid on a soda cup, and leaving the cup on the counter. Moody's DNA was found on that soda cup lid. The culprit in the Chevron robbery-murder drove off in a white Nissan Versa; Moody's girlfriend, Coronel, owned just such a car and she testified that Moody was driving it the week of the charged offenses. Moody dropped his California driver's license at the dispensary, along with other paperwork bearing his name. The Beretta Storm was in Moody's possession when he was apprehended by police in the Nissan. Expended cartridge casings found at both the Chevron and the dispensary crime scenes were determined to have been fired from that gun. Moody's DNA was found on the gun's trigger, grip, and slide. In short, the evidence Moody was the culprit was overwhelming. Indeed, Moody acknowledges as much. He asserts that his "identity was established early and often" and was "not in doubt based on the evidence related to the charged crimes."
Furthermore, the videos clearly showed Moody committing robberies and murders; the jury could not reasonably have interpreted the video evidence to show commission of only lesser or different crimes, and Moody does not argue to the contrary. And, there was overwhelming evidence Moody was guilty of first degree murder, rather than a lesser degree of homicide. His conduct clearly fell within the felony murder rule. The evidence showed premeditation as well. His arrival at the crime scenes armed with a loaded gun suggested preplanning. Neither victim resisted him, and there was no evidence suggesting he shot in a panic, accidentally, in the heat of passion, or in perfect or imperfect self defense. He brought gasoline to the dispensary which, as we explain below, additionally suggested a premeditated killing. Accordingly, even if the uncharged crimes evidence had been excluded, there is no possibility the jury would have rendered a more favorable verdict for Moody.
Contrary to Moody's assertions, the Las Vegas crimes were less inflammatory than the charged offenses. (See People v. Cordova (2015) 62 Cal.4th 104, 133-134 [fact other crimes were less inflammatory compared to the charged crime reduced any prejudicial effect]; People v. Foster, supra, 50 Cal.4th at p. 1332.) We are not persuaded by Moody's arguments that violence and risk to human life are inherent in robberies, and "robbery and homicide go . . . together," whereas in contrast, the Las Vegas shootings were unnecessary, "grossly disproportional to the incident," and so "outrageously violent as to shock the conscience." We doubt that jurors are blasé about the murders of unresisting robbery victims, but more horrified by shootings that fortunately do not result in death. Moreover, the trial court gave a limiting instruction prohibiting the jury from using the uncharged crimes evidence to conclude Moody had a bad character or a propensity to commit crime. We presume the jury followed this instruction. (People v. Case (2018) 5 Cal.5th 1, 40-41; People v. McCurdy (2014) 59 Cal.4th 1063, 1096.)
For the same reasons, Moody has failed to establish ineffective assistance of counsel. " 'In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel's performance was deficient because it "fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms." [Citations.]' " (People v. Bell (2019) 7 Cal.5th 70, 125.) " 'If a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies resulted in prejudice, that is, a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." ' [Citations.]" (Id. at pp. 125-126.) Here, even if defense counsel erred by failing to renew her objections to the evidence, Moody has not established a reasonable probability that a better result would have ensued if counsel had done so.
c. Evidence of domestic violence
(i) Additional facts
During direct examination, Coronel testified that she and Moody lived together from July 2013 until January 2017. In January 2017, they were living on National Boulevard, near Big Tomy's. The week the charged offenses occurred, Moody had possession of the Nissan. The prosecutor queried whether Coronel had previously testified that Moody lived with her only through July of 2016, when she "kicked him out." Coronel said yes, and the prosecutor asked her to explain the discrepancy. Coronel replied that she had called police in July 2016 "for domestic violence." At that point, Moody moved out and she had no correspondence with him for a month. In October 2016, however, he moved back in because he had no place to go and she "cared about him."
During cross-examination, defense counsel elicited that Coronel financially supported Moody and had given him money; Moody was supposed to be working by promoting his music, but failed in this endeavor; he went out all the time and smoked "pot all day"; and in July 2016, Coronel discovered he was cheating on her. They got in an argument about his cheating, and Coronel called police. Defense counsel asked: "And what he had done, you told the police that he spit on you and shoved you with his shoulder?" Coronel answered, "Yes." Defense counsel further elicited that as a result of Moody's incarceration, Coronel gained full custody of their child, whereas before, Moody had "full custody."
On redirect, the prosecutor elicited that in the July 2016 incident, when Moody spit in Coronel's face he said, "you like that, bitch?" Their history of domestic violence was not limited to the one incident in July 2016; that was the way Moody treated Coronel most of the time. He had also broken her cellular telephones on occasion.
(ii) Discussion
Moody argues that the prosecutor committed prejudicial misconduct by eliciting testimony about Moody's "propensity for domestic violence in violation of Evidence Code section 1101, subdivision (a)," and defense counsel provided ineffective assistance by failing to object. We disagree.
First, because defense counsel failed to object to the challenged evidence, Moody's claims of prosecutorial misconduct and evidentiary error have been forfeited. (People v. Powell (2018) 6 Cal.5th 136, 182 ["a claim of prosecutorial misconduct is forfeited when there was neither a timely and specific objection nor a request for admonition"]; People v. Williams (2016) 1 Cal.5th 1166, 1188; People v. Rivera (2019) 7 Cal.5th 306, 341 [failure to object to evidence of uncharged misconduct forfeits contention on appeal]; People v. Doolin (2009) 45 Cal.4th 390, 437 [Evid. Code, § 1101 challenge forfeited where no objection was made at trial]; Evid. Code, § 353, subd. (a).)
The claims fail on the merits as well. The law regarding prosecutorial misconduct is well settled. " 'When a prosecutor's intemperate behavior is sufficiently egregious that it infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process, the federal Constitution is violated. Prosecutorial misconduct that falls short of rendering the trial fundamentally unfair may still constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury.' [Citation.]" (People v. Masters (2016) 62 Cal.4th 1019, 1052.)
Evidence that, as of January 17, 2017, Moody was living with Coronel in an apartment located near Big Tomy's, and was using her Nissan—the car linked to the Chevron robbery-murder—was highly relevant. Coronel had previously testified that she and Moody stopped living together in July 2016. Thus, an explanation for this discrepancy was relevant and significant to the People's case. The prosecutor did not initially elicit any details of the July 2016 domestic violence. Once the defense explored the issue on cross-examination, of course, the prosecutor had leeway to inquire further. " ' "It is well settled that when a witness is questioned on cross-examination as to matters relevant to the subject of the direct examination but not elicited on that examination, he [or she] may be examined on redirect as to such new matter." ' [Citation.]" (People v. Hamilton (2009) 45 Cal.4th 863, 921; see People v. Sakarias (2000) 22 Cal.4th 596, 644.) Thus, there was nothing improper about the prosecutor's questions. There was certainly no prosecutorial misconduct: asking relevant questions in the absence of an adverse ruling or any objection by the opposing party is not prosecutorial misconduct. (See People v. Earp (1999) 20 Cal.4th 826, 861 [" 'A prosecutor is not guilty of misconduct when he questions a witness in accordance with the court's ruling' "].)
Because there was no prosecutorial misconduct and no evidentiary error, defense counsel did not err by failing to object. "Failure to raise a meritless objection is not ineffective assistance of counsel." (People v. Bradley (2012) 208 Cal.App.4th 64, 90; People v. Thompson (2010) 49 Cal.4th 79, 122 ["Counsel is not ineffective for failing to make frivolous or futile motions"]; People v. Ochoa (1998) 19 Cal.4th 353, 463.)
Moreover, it is apparent that defense counsel had a tactical reason for failing to seek exclusion of the domestic violence testimony. The decision as to how to cross-examine a witness, and to what extent, " 'comes within the wide range of tactical decisions competent counsel must make.' " (People v. Carrasco (2014) 59 Cal.4th 924, 986.) Even assuming arguendo any mention of domestic violence was inadmissible, the decision whether to object to inadmissible evidence is also a tactical one, entitled to deference. (People v. Rices (2017) 4 Cal.5th 49, 80.) Here, defense counsel, not the prosecutor, first elicited the details about the incident—that Moody spit in Coronel's face and shoved her—as well as unfavorable testimony about Moody's relationship with Coronel. Counsel's obvious purpose was to support an argument that Coronel had a motive to lie, thereby undercutting her identification of Moody in the videos and her assertion that he drove the Nissan. During closing argument, defense counsel urged: "as to Tory Coronel, you also heard that she is very—she was very angry. She had a motive against—a motive, because she and Mr. Moody ha[ve] a history where she felt he was cheating on her." Counsel did not provide ineffective assistance by failing to object to the prosecutor's direct and redirect examination of Coronel.
In any event, even if the very brief testimony about Moody's commission of acts of domestic violence was admitted in error, it was manifestly harmless. The evidence of the charged crimes was overwhelming, as we have explained in more detail ante. The domestic violence evidence was far less inflammatory than the evidence offered in support of the charged crimes—which included videos of Moody killing two unresisting men in cold blood. (See People v. Cordova, supra, 62 Cal.4th at pp. 133- 134; People v. Foster, supra, 50 Cal.4th at p. 1332.) There is no possibility Moody would have achieved a more favorable outcome had the domestic violence testimony been excluded.
d. Evidence of the bottle containing gasoline
Next, Moody complains about admission of evidence that he and Eastland left the bottle filled with gasoline at the marijuana dispensary. He asserts that the prosecutor committed misconduct by presenting the evidence, which he characterizes as irrelevant propensity evidence admitted in violation of Evidence Code section 1101, Evidence Code section 352, and his rights to due process and a fair trial. Further, he maintains, his trial counsel provided ineffective assistance by failing to object. These contentions lack merit.
(i) Additional facts
As noted, the video of events at the dispensary showed that Moody and Eastland left behind a bottle when they fled from the dispensary. A detective examined the bottle's contents and, based on the smell, believed it contained gasoline. He took the bottle to the Los Angeles City Fire Department, so arson investigator Gus Gaeta could evaluate it. Gaeta's dog, Blue, a certified and highly trained arson detection dog, alerted to the substance in the bottle, confirming it was an accelerant. Detectives also had the substance in the bottle chemically tested, and it proved to be gasoline.
Prior to trial, defense counsel objected to evidence of Blue's alert to the bottle and any in-court demonstration on the grounds disclosure was untimely, the dog scent evidence was unreliable, and the evidence was cumulative under Evidence Code section 352. The trial court ordered the prosecution to wait until the end of their case to put on the evidence, and stated it would revisit the issue later. Defense counsel did not object that the gasoline evidence was irrelevant or was impermissible character evidence under Evidence Code section 1101. She did not later renew any objection to the evidence, and the court made no ruling on the issue.
At trial, Gaeta testified that Blue had alerted to the substance found in the bottle, indicating it was an accelerant. Gaeta also performed an in-court demonstration in which Blue alerted to an accelerant. In Gaeta's opinion, Blue's ability to detect an accelerant was superior to a chemical test.
The prosecutor argued that the only reasonable interpretation of the gasoline bottle evidence was that, if Moody had had time, he intended to use the gasoline to "perhaps destroy evidence, maybe to set fire to the place."
(ii) Discussion
Defense counsel failed to object to the gasoline evidence on the bases now asserted. Therefore, Moody's claims of prosecutorial misconduct and evidentiary error have been forfeited. (People v. Powell, supra, 6 Cal.5th at p. 182; People v. Williams, supra, 1 Cal.5th at p. 1188; People v. Rivera, supra, 7 Cal.5th at p. 341; Bryant, supra, 60 Cal.4th at p. 408; Evid. Code, § 353, subd. (a).)
The claims fail on the merits as well. The gasoline evidence was highly probative. The People prosecuted Moody on two theories of first degree murder: premeditation and deliberation, and felony murder. To prove the former theory, the People had to show more than an intent to kill. (People v. Mendoza (2011) 52 Cal.4th 1056, 1069.) An intentional killing is premeditated and deliberate if it is considered beforehand and occurred as the result of preexisting thought and reflection, rather than as the product of an unconsidered or rash impulse. (People v. Potts (2019) 6 Cal.5th 1012, 1027; People v. Pearson (2013) 56 Cal.4th 393, 443.) It has long been held that three categories of evidence are especially probative to establish premeditation and deliberation: planning activity, motive, and manner of killing. (See People v. Dalton (2019) 7 Cal.5th 166, 248; Potts, at p. 1027.) The gasoline evidence provided strong evidence of planning. There was only one reasonable inference the jury could draw from Moody's act of bringing a bottle of gasoline to the crime scene: he intended to set fire to the dispensary after the crime to destroy evidence of his involvement. The gasoline evidence thus showed he premeditated and preplanned the murder, as well as the robbery: the jury could readily infer that there would have been little point in burning down the dispensary or evidence contained therein, if a witness was left alive to identify him.
Contrary to Moody's contention, the evidence was not merely speculative on this point. Moody confuses speculation with reasonable inference. "Mental state and intent are rarely susceptible of direct proof and must therefore be proven circumstantially." (People v. Thomas, supra, 52 Cal.4th at p 355.) We can conceive of no reason why Moody would bring a bottle of gasoline to the dispensary, if not to incinerate evidence, and he advances no plausible alternative. The significance of evidence is not speculative merely because inferences are required to come to a particular conclusion. (People v. Jones (2017) 3 Cal.5th 583, 610; see generally People v. Livingston (2012) 53 Cal.4th 1145, 1166.)
Nor was the gasoline evidence more prejudicial than probative. " ' " ' "Evidence is not prejudicial, as that term is used in a[n Evidence Code] section 352 context, merely because it undermines the opponent's position or shores up that of the proponent. The ability to do so is what makes evidence relevant. The code speaks in terms of undue prejudice." ' " ' " (Daveggio, supra, 4 Cal.5th at p. 824; Bryant, supra, 60 Cal.4th at p. 408.) " ' "The 'prejudice' referred to in Evidence Code section 352 applies to evidence that uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues." ' " (Daveggio, at p. 824, italics added; Bryant, at p. 408; People v. Duff (2014) 58 Cal.4th 527, 564.) The gasoline evidence was not of this ilk; it was directly related to the issues.
Also contrary to Moody's argument, the evidence was not character or propensity evidence within the meaning of Evidence Code section 1101, subdivision (a). The prosecutor never implied or stated that the gasoline suggested Moody's commission of an uncharged, unconnected crime, such as arson. The bottle of gasoline was physical evidence left at this particular crime scene, to prove the charged crime, not some other offense. Evidence Code section 1101 was inapplicable.
Finally, Moody points to portions of the prosecutor's argument in which she averred that the People had presented more evidence than necessary to ensure a conviction. Moody interprets these statements to mean that the gasoline evidence was irrelevant. He is mistaken. There is no prohibition on the prosecution presenting too much evidence of guilt, as long as such evidence is otherwise admissible. The People are required to prove all elements of the charged crimes beyond a reasonable doubt. There is no rule requiring that once the People have produced a minimum quantum of evidence to prove guilt, they are precluded from presenting any more. The People are entitled to prove their case. (See People v. Case, supra, 5 Cal.5th at p. 31; People v. Henriquez (2017) 4 Cal.5th 1, 29-30.)
2. Cumulative error
Moody asserts that the cumulative effect of the purported errors requires reversal, even if they were individually harmless. As we have " 'either rejected on the merits defendant's claims of error or have found any assumed errors to be nonprejudicial,' " we reach the same conclusion with respect to the cumulative effect of any purported errors. (People v. Cole (2004) 33 Cal.4th 1158, 1235-1236.)
3. Sentencing error
On count 5, the robbery of Garcia, the trial court imposed the high term of five years, consecutive, plus 10 years for the section 12022.53, subdivision (b) firearm enhancement. It indicated it had read and considered the probation report, but did not articulate the reasons for its selection of the high term on count 5. Defense counsel did not object. Moody argues that the trial court erred by failing to articulate the reasons for its selection of the upper term, and maintains that the matter must be remanded for resentencing.
Under section 1170, subdivision (b), a trial court is required to set forth on the record the reasons for imposing the selected term. But, it is well settled that a defendant forfeits on appeal claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices. (People v. Scott (1994) 9 Cal.4th 331, 353; People v. Scott (2015) 61 Cal.4th 363, 406; People v. Gonzalez (2003) 31 Cal.4th 745, 751.) "A party in a criminal case may not, on appeal, raise 'claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices' if the party did not object to the sentence at trial. [Citation.] The rule applies to 'cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons' [citation], . . . ." (People v. Gonzalez, at p. 751; People v. Sperling (2017) 12 Cal.App.5th 1094, 1100-1101.) Moody's counsel did not object or request that the trial court articulate the basis for its selection of the high term. The record demonstrates counsel had ample opportunity to object at the sentencing hearing. Moody may not now challenge his sentence on this ground on appeal.
Moody's claim that his counsel provided ineffective assistance is unavailing. He fails to show a reasonable probability that the court would have imposed a lesser term on count 5 if counsel had requested that the court articulate its reasoning. (See People v. Bell, supra, 7 Cal.5th at pp. 125-126.) Moody asserts, without further explanation, that the sentence on count 5 "conceivably . . . could have been better had counsel done her job." This conclusory assertion does not suffice to establish ineffective assistance. In any event, only a single aggravating factor is required to support imposition of the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Here, at least three such factors were present: the manner in which the crime was carried out indicated planning; the crime involved the threat of great bodily harm; and appellant was on probation when he committed the robbery. (See Cal. Rules of Court, rule 4.421.) Moody's ineffective assistance claim thus fails.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J. We concur:
EGERTON, J.
DHANIDINA, J.