Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F05692
BLEASE, Acting P. J.
Defendant Marcellus Motley fired a shotgun in a drive-by shooting, injuring Shaira Gordon. Defendant was convicted of assault with a firearm (Pen. Code, § 245, subd. (a)(2); count one), for which he received a three year sentence. In addition, the jury found true a charge that he personally used a firearm in the commission of the offense (§ 12022.5, subd. (a)(1)), for which he received a sentence enhancement of four years. The jury also found defendant guilty of discharging a firearm at an inhabited dwelling (§ 246; count two), and of discharging a firearm in a grossly negligent manner that could result in injury or death (§ 246.3; count 3). Sentences for the latter two offenses were stayed pursuant to section 654.
References to an unnamed section are to the Penal Code.
Defendant argues the trial court erred in denying his two motions for mistrial, in admitting hearsay evidence, in admitting evidence of gang membership, and in denying his motion for a new trial. He further argues the prosecutor committed misconduct and he received ineffective assistance of counsel.
We find no merit to his arguments, and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The incidents in question occurred on June 28, 2006. In June 2006, Brenisha Torbert was dating Dwayne Zachary. Torbert and defendant had dated previously for about two months. Torbert and Zachary’s sister, Allean, were close friends. Shaira Gordon was a close friend of Allean’s.
On June 28, 2006, Torbert, Allean Zachary, and Gordon drove in Torbert’s blue Neon to the house of Allean Zachary’s cousin on High Street in Del Paso Heights. Dwayne Zachary was at the house on High Street, as were two other unidentified males. While Torbert, Allean Zachary, and Gordon were at the High Street house some other women who were also at the house left in Torbert’s blue Neon, and were gone for about 10 or 15 minutes. Gordon testified she thought three of the women left in the car, but she also said she did not see Dwayne Zachary or one of the other males at the house during the time the car was gone.
About 10 minutes after the group returned in Torbert’s car, Gordon, Torbert, and Allean Zachary left the house and were walking toward Torbert’s car when a white van pulled up in front of the driveway, the sliding door on the side of the van opened, and someone inside the van started shooting. Allean Zachary testified the shooter looked like a “boy” named Cellybo, whose picture she had seen on Torbert’s My Space page. Cellybo or Cellbo are names defendant uses. Allean Zachary described the shooter as wearing a white T-shirt and jeans. Before he shot the gun, he said, “[s]tars up.” “Stars up” is a phrase used by members of a criminal street gang known as the Bad Ass Young Stars, or BAYS, also known as G Mobb. Defendant is a validated member of G Mobb.
After the van drove off, the girls ran back into the house. Gordon was bleeding from her lower arm, where she had been shot. They went out the back door of the house, through the alley, and into the house on the corner, where the residents called an ambulance. The police dispatch log indicated the call was received at 5:14 p.m. Torbert told Gordon that she thought defendant was the shooter.
Another witness, unrelated to anyone at the High Street house, was walking home when she saw a white van pass, saw the sliding door of the van open, and saw a dark-skinned black man with blonde dreadlocks, wearing a white T-shirt and jeans holding a gun. Defendant had dreadlocks with light colored tips.
Gordon had four shotgun pellets in her right forearm. The front passenger door of the blue Neon had damage that appeared to be from a shotgun shell. The wadding from a shotgun shell was found in the right front seat.
Officers who responded to the crime scene had information that a blue Neon had been involved in an exchange of gunfire with a white van in the vicinity of High Street just prior to the shooting on High Street. At 4:55 p.m. security cameras at the Rainbow Market caught the image of two males who appeared to be associated with each other. One of them was shooting at a white mini-van. Witnesses indicated a woman was driving a blue Dodge Neon, and the men got into the Neon after the shooting.
Dwayne Zachary was a validated member of the Beast Mob street gang. The man shooting at the white mini-van near the Rainbow Market fit Dwayne Zachary’s description.
Officers responding to the shooting ran defendant’s name in their police database, and discovered a report indicating he had been involved in an incident two weeks prior. The incident report mentioned a white van and a shotgun. The report listed an address for defendant at 561 South Avenue, approximately five minutes from the scene of the shooting. Officers found defendant in the garage of the house on South Avenue, hiding behind a big screen television.
DISCUSSION
I
First Mistrial Motion
Defendant argues the trial court abused its discretion when it denied his motion for mistrial after the jury heard evidence about a prior domestic violence incident involving defendant, despite the trial court’s pretrial ruling that the evidence was not admissible, except for impeachment.
The issue arose upon the prosecutor’s motion to admit evidence of a domestic violence incident between defendant and Charlene Oakley. Oakley was defendant’s girlfriend at the time of the shooting. The prosecutor stated his motion was in response to defendant’s Evidence Code section 1101, subdivision (b) motion. The prosecutor explained that Oakley said defendant threatened her with a shotgun because she refused to give him a ride in her white minivan. The prosecutor argued the evidence should come in because it showed defendant had access to a shotgun just two weeks before the incident.
The trial judge opined that whatever relevance the domestic violence incident had, it was outweighed by its prejudicial impact. The trial court stated the prosecutor could ask Oakley about whether she had ever seen defendant with a weapon, but not the circumstance surrounding it: “So no on the DV [domestic violence], but you can ask her about shotguns or weapons at other times.”
The prosecutor asked for clarification, and the trial court said the prosecutor could use the defendant’s prior access to a weapon, but not the domestic violence incident. The prosecutor clarified that if Oakley claimed she had never seen defendant with a weapon, he could impeach her with her report, as long as he did not mention domestic violence or go into it. The trial court agreed he could.
The trial court ruled: “It appears to me that whatever relevance it has, whatever probative value it has is outweighed by prejudicial impact. Under 352, I am not going to allow that in. However, if you wish to question Ms. Oakley about whether she’s ever seen Mr. Motley with a weapon, you may do so. You may not ask her the circumstances around it, but if she’s seen him with weapons on that occasion or other occasions, she can either say yes or no. [¶] Appears to me that -- although, I’m a little puzzled by exactly what Ms. Oakley’s testimony will be, it appears that there at least is another occasion that she indicates she saw him with a shotgun. [¶] So it’s not necessary to bring this domestic violence incident to the jury’s attention because this is not a domestic violence case. So no on the DV, but you can ask her about shotguns or weapons at other times.”
Defendant argues that in ruling against the prosecution’s motion to admit evidence of the domestic violence incident pursuant to Evidence Code section 1101, subdivision (b), the court was implicitly finding the admissibility of defendant’s possession of the shotgun depended on proof of the preliminary fact of possession. Defendant made no objection to the shotgun evidence on this ground, and the trial court’s ruling cannot be construed to address an objection that was never made.
Thereafter, the prosecutor asked Sacramento Police Officer Jason Nollette how he knew that defendant’s address was at 561 South Avenue. Nollette responded that a “record check showed that he was involved in a report two weeks prior too [sic] at that address. And in that report, it also mentioned he might have access to a white van and a shotgun.” The officer explained that the police database would show any involvement with the Sacramento Police Department from February 2004 to the present.
The prosecutor then asked, “[a]nd when you ran Marcellus Motley’s name, it indicated that two weeks prior he was involved in some incident with a white van and possibly a shotgun?” The officer replied, “[t]he shotgun and the white van weren’t involved, but they were mentioned in the report.”
Defense counsel offered no objections to any of the above questions to or responses of Officer Nollette.
The next witness to testify was David Topaz, a police officer with the Sacramento Police Department at the time of the incident. The prosecutor asked him why he left the crime scene to go to 561 South Avenue. He responded, “Officer Nollette had found a prior domestic violence report in our city system that involved the defendant and what appeared to be a girlfriend who lived at 561 South Avenue.”
Defense counsel immediately asked to approach the bench. He placed on the record his objection that Topaz had mentioned the domestic violence incident, and asked for a dismissal of the case, or in the alternative for a limiting instruction. He did not object to the responses given by Officer Nollette.
The prosecutor responded that the court had not instructed him to admonish the officers, but merely not to go into the domestic violence incident. The prosecutor stated that Officer Nollette had not mentioned the domestic violence, and he assumed Topaz would not either. He also stated that he thought the domestic violence evidence would come out anyway, when Oakley testified.
After having the transcript of the in limine motion read again, the trial court stated, “the ruling of the Court was that the People’s motion to introduce domestic violence under [Evidence Code section] 1101(b) was denied. The ruling wasn’t quite so broad as [defense counsel] just represented [,] that no mention of domestic violence occur, but it certainly can’t be used as character evidence. It’s now come in.”
The court directed both attorneys to craft a stipulation to read to the jury. The following stipulation was read to the jury: “Domestic violence acts as referred to by Officer Topaz did not result in any charges being filed by the district attorney’s office against Mr. Motley and did not result in an arrest of Mr. Motley by law enforcement. [¶] I’m further admonishing you as follows: The jury is admonished that you are not to consider the foregoing alleged domestic violence incident as evidence that Mr. Motley is a person of bad character or that he has a predisposition to commit crimes.”
A mistrial should be granted if the defendant’s chances of receiving a fair trial are irreparably damaged and the trial court judges the prejudice incurable by admonition or instruction. (People v. Ledesma (2006) 39 Cal.4th 641, 683; People v. Bolden (2002) 29 Cal.4th 515, 555.) Whether an incident is incurably prejudicial is speculative by nature, and the trial court is vested with considerable discretion in ruling on a motion for mistrial. (People v. Ledesma, supra, at p.683.)
In this case, the parties joined in crafting a stipulation that told the jury defendant had not been charged with domestic violence, and that it could not use such information to infer defendant had a bad character. We presume the jury followed this instruction. (People v. Yeoman (2003) 31 Cal.4th 93, 139.) Moreover, no details of the incident were relayed, and the jury was later informed the person making the report recanted her allegations. The recanted domestic violence incident, which the jury was told did not involve the use of a shotgun, was not inherently more prejudicial than the shooting incident with gang overtones that was being tried. Considering these facts, the trial court did not abuse its broad discretion in determining the incident was not incurably prejudicial.
II
Hearsay
Defendant argues the trial court erred when it ignored its in limine ruling and permitted hearsay statements suggesting he had access to a shotgun and white minivan. He argues the jury should have been instructed to ignore the officers’ testimony regarding the gun and van until Oakley testified. Further, since the prosecutor ultimately decided to not call Oakley, defendant argues there was no basis for the admission of the evidence of defendant’s access to the gun and van.
Oakley was hospitalized suffering from lymphoma at the time of trial. The trial court set up a conditional examination at the hospital, and the court and parties appeared at the hospital for the examination. Prior to bringing Oakley in for questioning, the prosecutor informed the trial judge that Oakley had left a telephone message stating she had lied in her two police reports regarding defendant. Oakley, who was represented by counsel, thereafter informed the court through her counsel that she would invoke her Fifth Amendment right against self-incrimination if called as a witness. As a result, the prosecutor withdrew the subpoena against Oakley, and she never testified.
Despite defendant’s arguments to the contrary, the trial court’s in limine ruling was limited to testimony regarding domestic violence, and did not encompass evidence regarding defendant’s access to a shotgun and white van. Moreover, defendant never objected to the gun and van evidence on hearsay grounds, thus the argument is forfeited. (People v. Wheeler (1992) 4 Cal.4th 284, 300.)
Defendant argues the trial court failed to understand that he raised the hearsay nature of the evidence in his in limine motion. The trial court failed to understand, because defendant did not raise a hearsay objection to the gun and van evidence.
Defendant’s in limine motion based on Evidence Code section 1101, to exclude instances of uncharged misconduct as evidence of propensity to commit the charged offense, did not raise any hearsay objection. The other written motion defendant references in his brief to support the statement that he “clearly informed the court of the hearsay nature of the evidence and its lack of trustworthiness[,]” is his opposition to the prosecution’s motion to admit statements pursuant to Evidence Code section 1370 because they violated the confrontation clause of the Constitution.
Evidence Code section 1370 provides that a declarant’s statement is not inadmissible hearsay if: (1) it purports to narrate or explain the infliction or threat of physical injury on the declarant, (2) the declarant is unavailable as a witness, (3) the statement was made at or near the time of the injury or threat, (4) the circumstances of the statement indicate trustworthiness, and (5) the statement was made in writing or was electronically recorded, or made to a physician, nurse, paramedic, or law enforcement official.
The written motion did not specifically set forth which statements defendant wanted to exclude, but he mentioned incriminating statements Oakley provided to the District Attorney’s office that occurred several months after the incident. Oakley’s statement regarding the gun and van was in the form of a report made prior to the incident. The motion also mentioned “statements attributable to the defendant through the witness, Charlene Oakley . . . .” The statement about the gun and van were made by Oakley, not defendant. Assuming this motion qualified as a hearsay objection, the motion did not encompass the statements regarding the gun and van.
The other portion of the record to which defendant points to support his statement that he “clearly informed the court of the hearsay nature of the evidence and its lack of trustworthiness[,]” is a discussion that took place prior to the hearing on the in limine motions. The trial court asked if there were any motions to suppress confessions or admissions. Defense counsel stated, “I would ask that my client’s statements to Charlene Oakley, which she has provided, be suppressed, specifically because it’s not clear whether or not her statements -- his statements attributable by her are trustworthy.” The prosecutor responded, “I just want to clarify, it’s my understanding that there’s two statements that I think we’re discussing; one is the admission[] that Charlene Oakley said the defendant made on the day of the drive-by shooting, and the second [is] the admission[] that the defendant made after Charlene Oakley was assaulted in late November by the defendant’s new girlfriend and the defendant.” Defense counsel did not dispute that these were the two statements to which he was referring. The prosecutor indicated one statement was defendant’s statement to Oakley on the day of the drive-by, and one was defendant’s threat to her after the incident, when he told her, “if you testify, I’m going to hurt you[.]” This discussion, which appears to be an objection based on confrontation clause grounds, was as to defendant’s own statements to Oakley, and did not encompass Oakley’s report that defendant had threatened her with a shotgun because she would not give him a ride in her van.
Other in limine discussions involving hearsay were unrelated to Oakley’s report about the shotgun. Specifically, the court took up the prosecutor’s in limine motion to introduce Oakley’s telephone call to the prosecutor, wherein she stated defendant’s girlfriend had assaulted her, as a spontaneous declaration under Evidence Code section 1240. The trial court denied the motion.
After the prosecution’s written in limine motions had been resolved, the prosecutor stated he had other issues that were not in his written motions. He stated the first was in response to defendant’s motion in limine regarding Evidence Code section 1370 about threats. The prosecutor said the motion appeared to relate to the statements made by the defendant during the assault on Oakley. Defense counsel did not disagree with this assumption. The trial court ruled the prosecutor could ask Oakley about any admissions defendant made to her or any threats he made to her.
Then the prosecutor made a motion “in response to the defendant’s 1101(b)” motion to exclude the incident between Oakley and defendant that occurred two weeks before the shooting. Defense counsel made no argument regarding hearsay, and the trial court stated the evidence would not be admitted pursuant to Evidence Code section 352 because its probative value was outweighed by its prejudicial impact.
The prosecutor then sought clarification as to whether he could impeach Oakley with her earlier statement to law enforcement, without mentioning the domestic violence incident. The court agreed. Defense counsel did not raise a hearsay argument, and when defense counsel argued his in limine motions, he did not raise any hearsay objections.
From the above, it is apparent defendant’s hearsay objections related to threats and admissions defendant made to Oakley, and which she later relayed to the prosecutor. The incident involving the van and gun was completely separate, and defendant did not assert any hearsay objection regarding the gun or van evidence. The issue is therefore forfeited.
III
Gang Evidence
The prosecutor made an in limine motion to present evidence of defendant’s gang involvement. The prosecutor argued the evidence was relevant to motive and intent, because there was evidence the shooting was a gang retaliation of some sort. He argued the gang evidence was also relevant to identity and to explain why the shooter said “stars up” right before he started shooting. Defendant’s gang affiliation also explained his moniker, Cellybo, which was how the witnesses referred to him. The prosecutor also argued the gang evidence was relevant to explain why some of the witnesses were afraid to testify.
An Evidence Code section 402 examination was held to determine whether Torbert was afraid to testify because of defendant’s gang affiliation, and whether defendant was affiliated with a gang. Torbert testified that defendant told her he was a member of G Mobb gang, and Dwayne Zachary was a member of Beast Mob gang. She stated she was afraid to testify both because she could be put in jail if she lied and because defendant was a member of a gang. When asked why defendant’s gang membership would make her afraid to testify she said, “people being in gangs[,] things can happen.” When asked if she thought it was a possibility someone in defendant’s gang would try to harm her, she said she did not know.
Torbert’s mother testified that Torbert had been afraid that someone would “jump on her” or fight her. When Torbert’s mother asked her why she was afraid of this, she replied, “people will have people jump on you.” The mother said she thought Torbert’s fears had “kind of settled.”
A probation officer and a police officer were examined as well. They testified to the gang affiliations of defendant and Dwayne Zachary.
The trial court ruled that the information on defendant’s gang affiliation was relevant to show motive and to show the significance of the “stars up” comment. The court stated it had weighed the probative value and the prejudicial effect of the evidence and concluded the probative value outweighed the prejudicial effect. The court ruled the evidence could come in. The court also found that even though Torbert’s testimony was inconsistent, she “clearly stated that she was afraid of what might happen if she testifies . . . that the defendant and/or others involved in this case may belong to gangs.”
Thereafter, there was testimony from one of the responding officers that most of the witnesses in this case did not want to be involved, which was a typical reaction in this area because of the prevalent gang activity. There was also testimony that Torbert told one of the officers the shooting may have had something to do with “gang stuff[.]”
Dwayne Zachary’s probation officer, Matt Mitchell, testified Dwayne was a member of Beast Mob, located in North Highlands and Del Paso Heights. He testified to Dwayne Zachary’s tattoos, and identified pictures of Dwayne showing gang hand signs. He testified about the difference between Blood and Crip gangs. He stated Bloods could get into disagreements with other Blood gangs over such things as illegal business or females, and that gangs typically make their money from illegal business. He testified that a gang member might react differently than a normal man if he found out his girlfriend was dating someone else. The key difference would be that a gang member would be under a kind of code of respect, and would have to get his respect back amongst his peers. A gang member would want to confront the other person, and it could get violent with the girlfriend as well.
Mitchell also testified that gang members ensure other people in the community do not call the police by intimidating and terrorizing them. He testified that there have been instances of gangs retaliating against someone for testifying or talking to law enforcement.
Officer Eric Fong also testified as a gang expert. He stated that gangs are a group of more than two people who usually involve themselves in criminal activity to promote their gang and to promote themselves financially. He testified that a person may become a gang member by getting jumped in, i.e., attacked by other gang members, or by doing some deed for the gang like simple assault, or shooting someone.
Fong testified about the origins of G Mobb and BAYS, and about the territories in which they operate. He testified about the criteria used to validate a gang member, stated he had validated defendant as a G Mobb member based on his tattoos, his associations, and his My Space page. He testified about gang hand signs and identified several pictures of defendant throwing gang signs.
Fong testified that BAYS use the sayings “stars up,” or “stick up, stars” to identify themselves. Fong was not aware that any other gangs used the phrase “stars up.” He testified that gang members could get into disagreements over money, territory, women, or disrespect. He also testified that dreadlocks had originally been a characteristic hairstyle worn by G Mobb members, with the tips dyed different colors to signify the type of illegal activity in which they participated.
Like Mitchell, Fong testified that gang members use intimidation to ensure people in the community will not call the police or testify against them. The intimidation can be verbal intimidation all the way up to homicide.
We review the trial court’s ruling on the admissibility of gang evidence for abuse of discretion. (People v. Carter (2003) 30 Cal.4th 1166, 1194.) Evidence of a defendant’s gang affiliation creates a risk the jury will find the defendant has a propensity to commit criminal offenses, but where the evidence is relevant to prove identity or motive and it is not more prejudicial than probative, it is properly admitted. (Ibid.) Evidence of the culture of gang intimidation is admissible to explain the basis of a witness’s fear, to help the jury assess the witness’s credibility, and to explain why a witness might repudiate an earlier truthful statement. (People v. Gonzalez (2006) 38 Cal.4th 932, 945-946.)
In this case the gang evidence helped explain the motive for the attack. It helped explain that what appeared to be simple jealousy could escalate into violence. It helped explain the meaning of defendant yelling “stars up” before he started shooting. It helped explain why many of the witnesses gave testimony at trial that differed from the statements they made at the time of the shooting.
The trial court did not abuse its discretion in admitting the evidence. The evidence was relevant to issues of motive, identity, and credibility of witnesses. The gang testimony was narrowly tailored to the relevant issues, was not particularly shocking or inflammatory, and provided information for the jury to put the events of the shooting in context.
IV
Second Mistrial Motion
Defendant renewed his motion for mistrial after one of the alternate jurors informed the court she had heard one of the police witnesses talking in the hallway. Alternate juror 2 informed the court that during one of the breaks someone asked Officer Topaz about citations. They all assumed he was with another trial. He said there were an enormous amount of citations given out in Sacramento each year. He also said that “[v]ery few of them went to court, but the ones that went to court, the least was domestic violence.” The juror did not remember who was listening, and did not know who had paid attention. She stated that “no reference to this case -- was made to this case whatsoever.” She had not known Topaz was connected to this case until he was called in as a witness. She was excused because she had dealt personally with domestic violence and felt she would have a problem being fair.
The other jurors were then brought in front of the court and asked if anyone else overheard Topaz say anything. Five other jurors said they had.
Alternate Juror 1 said, “I was just reading my book in the chair down the hall and the police officers were -- were down there past me, and I just heard them. I think one said, It [sic] used to be a boyfriend and we’re on that beat. I didn’t really hear much, but they were talking with themselves.”
Juror 1 said, “I heard some general remarks about domestic abuse cases, but nothing that related specifically to the case and nothing I haven’t read or heard a million times before.” When asked for more specifics, Juror 1 stated Topaz said, “[j]ust that sometimes people, women, will take back their stories, um, and I think the gal who was let go was talking about how a friend of hers had been in a domestic abusive relationship, and I think it was more general talk about how women sometimes will tend to stay in relation -- it was, to me, nothing I haven’t heard or read a million times before . . . .”
Juror 2 stated Topaz was sitting at the next courtroom with another officer, and instructing the other one how to “take his hours here versus in-court hours for pay and general stuff.” He said the officer generally seemed to be complaining about having to testify in court. He seemed to be trying to teach his trainee about the system and waiting around. Juror 2 said he heard other witnesses as well. One appeared to be one of the mothers saying she was tired of the kids, one after the other, getting into trouble.
Juror 3 stated he overheard Topaz say that people in domestic violence situations tend to go back to their loved ones rather than file charges. Juror 3 did not take the comment to mean anything related to the case.
Juror 7 stated he heard Topaz talking to a juror from another courtroom about vacation homes. He also was talking to another officer about their arrests, and said he once arrested someone for jaywalking. They said nothing about this case.
Juror 9 said he heard Topaz talk “general shoptalk.” He talked about how many times he had been a witness, but nothing specific about this case.
The trial court dismissed Juror 2 because he seemed overly impressed with Topaz. The court denied the motion for mistrial.
As previously stated, a motion for mistrial should be granted only if the defendant’s chances of receiving a fair trial have been irreparably damaged. (People v. Bolden, supra, 29 Cal.4th at p. 555.) Defendant exaggerates the harm from the comments the jurors overheard in this case. Defendant claims Topaz leaked information about domestic violence involving defendant, thereby suggesting a possible motive for why Oakley would attempt to recant her account of defendant threatening her with a shotgun. However, the jurors who heard the domestic violence comment (Jurors 1, 3, and alternate 2) did not understand Topaz’s comments to be about defendant. It is the jurors’ understanding, not defendant’s argument or even Topaz’s intent, that controls.
Defendant argues Topaz discussed his prior police encounters with defendant, and that there is no question he was discussing the case with Nollette. However, it is not clear that Topaz was discussing any prior encounters he had experienced with defendant. None of the jurors remaining on the jury believed Topaz had been discussing incidents involving defendant. Juror 1 stated Topaz was generally talking about women in abusive relationships. Juror 3 said Topaz had not discussed anything related to the case. Juror 7 stated Topaz said “absolutely” nothing about this case. Juror 9 stated Topaz said “nothing specific about this particular case.”
Juror 2 thought Topaz and Nollette had been talking “a little bit about the case.” However, Juror 2 was dismissed. As to defendant’s complaint that Topaz “made disparaging remarks about the tediousness of the judicial process,” Juror 2 was the only juror who thought Topaz had been making remarks about the tediousness of the judicial process. None of the other jurors mentioned this, and it is unclear how this would prejudice defendant in any event.
Alternate Juror 1 thought Topaz and Nollette may have been talking about Torbert when they said, “it used to be her boyfriend.” However it is not clear whether they were talking about defendant or Dwayne Zachary, and there was nothing in the statement indicating the officers had prior “encounters” with defendant.
Nothing in the comments as relayed by the individual jurors would have irreparably damaged defendant’s chances of receiving a fair trial. The jurors indicated they could still be fair and impartial. The trial court acted within its discretion in denying the mistrial.
V
Prosecutor Misconduct
Defendant argues the prosecutor engaged in misconduct, citing five instances. First, he claims it was misconduct for the prosecutor to violate the trial court’s in limine order regarding the domestic violence testimony and to fail to admonish the officer witnesses not to speak of the case. Second, he claims the prosecutor threatened Torbert with prosecution for perjury. Third, he claims the prosecutor relied in closing argument on the unproven allegation that he possessed a shotgun. Fourth, he argues the prosecutor improperly commented on defendant’s failure to produce an alibi witness. Finally, he argues the prosecutor referred to multiple witnesses in his closing argument, when there was only one witness to a particular fact.
As to defendant’s first claim, we determined in sections I and II, above, that the court’s in limine ruling was limited to the admission of evidence of domestic violence, and was not directed more broadly to the exclusion of evidence of defendant’s access to a shotgun and white van on hearsay grounds. Moreover, the court did not direct the prosecutor to admonish his witnesses to refrain from mentioning the domestic violence incident. Prosecutorial misconduct involves the use of “deceptive or reprehensible methods to persuade . . . the jury[.]” (People v. Frye (1998) 18 Cal.4th 894, 969.) The prosecutor’s mere failure to admonish his witnesses absent any instruction to do so is not a deceptive or reprehensible tactic. (See People v. Erickson (1997) 57 Cal.App.4th 1391, 1403 [prosecutor’s failure to prevent testimony in violation of court’s in limine order was not a deceptive or reprehensible method of persuasion].)
Although it is misconduct to intentionally elicit inadmissible testimony, merely eliciting inadmissible testimony is not misconduct. (People v. Chatman (2006) 38 Cal.4th 344, 380.) Here, the prosecutor merely asked Topaz why he went from interviewing witnesses of the shooting to defendant’s house. When the prosecutor had asked essentially the same question of Nollette, he had replied merely that a record check on defendant showed he was involved in a report two weeks before the shooting involving a white van and a shotgun. The prosecutor stated he assumed Topaz would say the same thing. Instead, Topaz mentioned the domestic violence report. It does not appear the prosecutor was intentionally eliciting inadmissible evidence, thus there was no misconduct.
As to the prosecutor’s failure to admonish Topaz not to discuss the case outside the courtroom, defendant raised this in his motion for mistrial, but did not object on the ground of prosecutorial misconduct. In any event, it is not clear on this record that the prosecutor failed to properly admonish the witnesses. The prosecutor acknowledged that the trial court had admonished counsel to make sure the witnesses refrained from discussing the case. The prosecutor did not indicate he had failed to heed the court’s admonition. The prosecutor further argued the conversation Topaz was having was not about the case.
As indicated previously, none of the jurors who ultimately served on the jury believed that anything said by Topaz was in relation to the case at hand. Alternate Juror 1, who heard one of the officers say, “it used to be a boyfriend and we’re on that beat[,]” was not the alternate juror who replaced Juror 2, the other juror who thought the officers were talking “a little bit about the case[,]” thus was not ultimately a member of the jury that deliberated and reached a verdict. Under these circumstances, where the discussion about the case, if it occurred at all, was minimal, and where there is no clear evidence the prosecutor failed to admonish the witnesses, no basis for misconduct is shown.
Defendant also argues the prosecutor coerced Torbert’s testimony. To preserve a claim of prosecutorial misconduct, defendant must make a timely objection on the same ground and request that the jury be admonished to disregard the impropriety. (People v. Thornton (2007) 41 Cal.4th 391, 454.) Defendant made no such objection here, forfeiting his claim of prosecutorial misconduct on this ground.
Defendant claims the prosecutor improperly argued to the jury that defendant possessed a shotgun and had access to a white minivan two weeks before the crime. Defendant argues the prosecutor’s “repeated resort to the unsubstantiated, multiple-hearsay report for the purpose of implying that appellant in fact had access to a shotgun was tantamount to argument based on facts not in evidence.” Defendant did not raise any objection to these arguments at trial, and has forfeited any claim of misconduct on this ground.
Defendant also claims the prosecutor engaged in misconduct by commenting on defendant’s failure to produce an alibi witness. Defense counsel made an objection on the ground the prosecutor was shifting the burden of proof on the defense. The trial court overruled the objection. The court opined it was not prosecutorial misconduct to comment on the failure to call logical witnesses.
Immediately after the objection and ruling, the prosecutor emphasized to the jury, “the burden is on me. The defense is not required to call anybody. They can rely on the state of the evidence. They don’t have to call anybody. But you can go back there in jury deliberations and say, hmmm, if we--if the wrong person is sitting across from me us, why didn’t they call an alibi witness? Where is that mystery person? Where is the person that can say he was somewhere else when all this happened? You can consider that.”
A prosecutor may argue that a defendant has failed to produce alibi witnesses. (People v. Echevarria (1992) 11 Cal.App.4th 444, 452.) The prosecutor may comment on the state of the evidence or on the failure of the defense to introduce evidence or call logical witnesses. (People v. Ratliff (1986) 41 Cal.3d 675, 691.) The prosecutor’s comments in this case did not in any way imply that defendant had the burden of proof or seek to lessen the prosecution’s burden. The prosecutor’s arguments were permissible comments on the state of the evidence and the failure to call logical witnesses, and did not constitute misconduct.
Defendant also claims the prosecutor committed misconduct when he told the jury there were witnesses who identified the driver of the van near the Rainbow Market as wearing dreadlocks, when only one witness had done so. Likewise, the prosecutor stated witnesses heard the shooter say “stars up,” when only one witness testified to hearing that phrase. Defendant has forfeited this claim on appeal because of his failure to object below. In any event, mistaking the matter and referring to witnesses in the plural does not constitute deceptive or reprehensible conduct, thus was not misconduct.
VI
Motion for New Trial
Defendant argues the trial court abused its discretion in denying his motion for a new trial. One of the grounds for defendant’s new trial motion was the admission of an unidentified witness’s statement in one of the 911 calls. Defendant argued the admission of the statement violated his constitutional right to confrontation pursuant to Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177]. He raises the same argument on appeal.
The prosecutor brought an in limine motion to allow the admission of the 911 tapes as spontaneous declarations under Evidence Code section 1240. Defendant did not object to the admission of the tapes, either in his written motions and oppositions to evidence, or at the hearing. Defendant’s only response to the prosecution’s motion to admit the tapes was to say, “[i]f the tapes are played, I would ask they be played in their entirety.” Defendant has thus forfeited any argument that the evidence was improperly admitted by his failure to assert a timely objection. (People v. Barnett (1998) 17 Cal.4th 1044, 1122.)
In any event, defendant’s belated argument that the statements made on the tape by the unknown witness violated his constitutional right to confrontation is incorrect. In Crawford v. Washington, supra, 541 U.S. 36 [158 L.Ed.2d 177], the United States Supreme Court held that the confrontation clause prohibits the admission into evidence of “testimonial” hearsay statements against a defendant in a criminal trial unless: (1) the declarant is unavailable as a witness and the defendant has had a prior opportunity to cross-examine the declarant, or (2) the declarant appears for cross-examination at trial. (Id. at p. 59 [at p. 197].)
The unknown witness’s statement on the 911 tape was not “testimonial.” “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Davis v. Washington (2006) 547 U.S. 813, 822 [165 L.Ed.2d 224, 237], fn. omitted (Davis).) A testimonial statement is one that is “solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator." (Id. at p. 826 [at p. 240].) By contrast, “the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to ‘establis[h] or prov[e]’ some past fact, but to describe current circumstances requiring police assistance." (Id. at p. 827 [at p. 240].)
Four factors serve to establish whether a statement is testimonial. First, a nontestimonial statement describes events as they happen, whereas a testimonial statement describes past events. (Davis, supra, 547 U.S. at p. 827 [165 L.Ed.2d at p. 240].) Second, a nontestimonial statement is given while the declarant is facing an emergency. (Ibid.) Third, the nature of the statements elicited in a nontestimonial statement are necessary to resolve the emergency rather than simply to learn what happened in the past. (Ibid.) This is true even if the 911 operator’s questions are to establish the identity of the perpetrator. (Ibid.) Finally, a nontestimonial statement is less formal, and may be given, “over the phone, in an environment that [is] not tranquil, or even (as far as any reasonable 911 operator could make out) safe.” (Ibid.)
In the present case, the 911 call began with the caller, Amber Cooke, telling the dispatcher that she had just witnessed a “young guy” shooting at a car. After asking for a few more details, the dispatcher asked if anyone got hit. The caller stated she was going to check on a lady that was sitting at the bus stop with a baby. The caller asked the unknown woman if she was all right, and the woman said, “ . . . this white van down there and I was like oh, my god my baby!” In response to the dispatcher’s questions, the woman stated that seven or eight shots were fired, that about five people were in the van, that the driver had dreadlocks, the van was a Caravan, and after the shooting, it headed toward Rio Linda. The caller told the dispatcher that the shooting had happened about five minutes previously. Although the caller and the unidentified witness described things that happened in the past, the shooting had just happened five minutes earlier, and the women could not be certain that they were not still in danger. The questions asked were to resolve the emergency and identify the perpetrators, i.e., where the callers were, at what kind of car the suspects were shooting, whether anyone got hit, how many shots were fired, whether the shooters were still there, and which direction they went. Finally, the conversation was not formal, and was not given in a tranquil environment. In short, the purpose of the 911 call was to describe current circumstances, and not to establish some past fact. The call was not testimonial, and therefore did not violate the defendant’s right to confront the witnesses against him.
Defendant also based the motion for new trial on the admission of gang evidence, the admission of the domestic violence incident, and the prosecutor’s failure to admonish the witnesses not to mention the prior domestic violence incident. We have previously determined that the trial court did not err in failing to grant a mistrial when one witness mentioned defendant was involved in a domestic violence incident, or when some jurors overheard Topaz and Nollette in conversation outside the courtroom. We have determined there was no error in allowing the admission of gang evidence.
A trial court may grant a motion for new trial only if the defendant demonstrates reversible error. (People v. Guerra (2006) 37 Cal.4th 1067, 1159.) We review the trial court’s ruling for abuse of discretion. (Ibid.) We find no error in the admission of evidence or in the rulings on the motions for mistrial. Accordingly, the trial court did not abuse its discretion in denying the motion for new trial.
VII
Ineffective Assistance of Counsel
Defendant argues his trial counsel rendered ineffective assistance with respect to the admission of information that he had access to a shotgun and with respect to the admission of statements of the unidentified witness on the 911 tape.
“A defendant claiming ineffective representation bears the burden of proving by a preponderance of the evidence both (1) that counsel's performance was deficient, i.e., that the representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been more favorable to defendant, i.e., a probability sufficient to undermine confidence in the outcome.” (In re Ross (1995) 10 Cal.4th 184, 201.) “In order to prevail on [an ineffective assistance of counsel] claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission. [Citations.]" (People v. Ray (1996) 13 Cal.4th 313, 349.) “Moreover, ‘[i]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.’ [Citation.]" (People v. Huggins (2006) 38 Cal.4th 175, 206.)
First, with respect to the shotgun information, defendant argues that his counsel was deficient in failing to object to the statements of Officers Nollette and Topaz on hearsay grounds. Since the record is silent as to the reason defense counsel failed to object to the evidence, we must reject defendant’s claim of ineffective assistance unless there could be no satisfactory explanation.
At the time of Nollette’s and Topaz’s testimony, both parties anticipated that Oakley would testify that two weeks prior to the shooting, defendant had threatened her with a gun because she would not give him a ride in her white van. The trial court ruled that Oakley could be impeached with her statement to the police. Defense counsel’s anticipation that the evidence would come in at some point is a satisfactory explanation of his failure to object, thus we must reject this claim of ineffective assistance. Next, defendant argues his trial counsel should have moved to strike the testimony of Officers Nollette and Topaz regarding defendant’s prior access to a shotgun when it became clear that Oakley would not testify.
The failure to object to the admission of evidence, or in this case to move to strike evidence, is a tactical decision that will seldom establish incompetence of counsel. (People v. Frierson (1979) 25 Cal.3d 142, 158.) “‘Matters involving trial tactics are matters “as to which we will not ordinarily exercise judicial hindsight. . . .” [Citation.] “In the heat of a trial, defendant's counsel is best able to determine proper tactics in the light of the jury's apparent reaction to the proceedings. Except in rare cases an appellate court should not attempt to second-guess trial counsel. . . .” [Citations.] . . . “The choice of when to object or not is inherently a matter of trial tactics not ordinarily reviewable on appeal; failure to object does not necessarily indicate incompetence . . . .”’ [Citations.]” (Ibid.)
Defense counsel may well have determined the evidence was not critical in light of the other incriminating evidence against defendant. Conversely, he may have decided a motion to strike the evidence after the jury had already heard it would serve merely to highlight the evidence, a result he wished to avoid. In either case, because there could be a legitimate tactical reason for his failure to move to strike the evidence, we reject this claim of ineffective assistance. (People v. Huggins, supra, 38 Cal.4th at p. 206.)
Finally, defendant argues his trial counsel was ineffective for failing to raise a confrontation clause objection to the admission of the unknown woman’s statements on the 911 tape. As we discussed in section VI, supra, the statement was not testimonial, therefore a confrontation clause objection would not have been successful. Trial counsel is not ineffective for failing to make an objection which, in our opinion, would have been without merit and denied. (People v. Westoby (1976) 63 Cal.App.3d 790, 799.)
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, J., CANTIL-SAKAUYE, J.