Opinion
F085944
07-26-2024
THE PEOPLE, Plaintiff and Respondent, v. KIRK ELLIOTT MURO, Defendant and Appellant.
David W. Beaudreau, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County, No. VCF366872A Melinda Myrle Reed, Judge.
David W. Beaudreau, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Robert C.
Nash, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MEEHAN, J.
INTRODUCTION
In December 2022, defendant Kirk Elliott Muro was convicted of second degree murder for the May 2018 death of Tariq Alsumiri. Defendant was charged with murder (Pen. Code, § 187, subd. (a), count 1) with two special circumstances attached alleging the murder was committed by lying in wait (§ 190.2, subd. (a)(15)) and during the commission of a violent felony (§ 190.2, subd. (a)(17)). Firearm enhancements were alleged under section 12022.53, subdivisions (b), (c), and (d), and section 12022.5, subdivision (a). On count 2, defendant was charged with conspiracy to commit murder (§ 182, subd. (a)(1)).
All further statutory references are to the Penal Code unless indicated otherwise.
The jury found defendant not guilty of first degree murder, but guilty of the lesser included offense of second degree murder, with true findings on the attendant firearm enhancements under section 12022.53. The jury also found defendant not guilty of conspiracy to commit murder on count 2. Defendant was sentenced to 15 years to life for the murder, and 25 years to life for the firearm enhancement under section 12022.53, subdivision (d), for an aggregate sentence of 40 years to life.
On appeal, defendant argues the trial court erred in admitting testimonial hearsay elicited from a defense expert by the prosecution in violation of state hearsay law and the Sixth Amendment and, alternatively, that the testimony was admitted in violation of Evidence Code section 352. Defendant also contends his trial counsel provided constitutionally ineffective assistance of counsel (IAC) by failing to request an instruction limiting the jury from considering assertions made by detectives during defendant's interrogation for their truth. Aside from their individual prejudicial effect, defendant asserts these errors are prejudicial under the cumulative error doctrine. Finally, defendant claims the trial court erred in refusing to dismiss the firearm enhancement under section 1385, and failed to award defendant any custody credits. The People concede defendant should have been awarded 1,701 days of custody credits, but otherwise dispute defendant's remaining claims.
For the reasons explained below, we shall modify the judgment to award 1,701 days of custody credit, but otherwise the judgment is affirmed.
FACTUAL BACKGROUND
In the early hours of May 11, 2018, Gary A. was at work about four miles outside of Tulare when he discovered a body lying in a vineyard that was later identified as Alsumiri. Law enforcement was summoned, and it was discovered Alsumiri had been shot multiple times in the head, and he had suffered multiple jagged incisions consistent with blunt force trauma. A medical examiner concluded the cause of death was multiple penetrating gunshot wounds to the head, and blunt force trauma to the head was noted. Subsequent investigation connected Melissa Hernandez and defendant to Alsumiri's death.
Hernandez and defendant were charged as codefendants for murder with two attached special circumstance allegations plus firearm enhancement allegations. A subsequent information charged defendant with one count of murder with two special circumstance allegations and firearm enhancement allegations, and one count of conspiracy to commit murder. The trial court granted defendant's pretrial motion to sever his trial from Hernandez's.
I. Trial Evidence
Detectives interviewed Hernandez on June 13, 2018, and arrested and interrogated defendant the following day.
A. Defendant's Police Interrogation
Defendant's police interrogation was video-recorded and played for the jury at trial. He identified Hernandez as his girlfriend of four years, and he initially identified Alsumiri as a grade school classmate he had not seen since they were children. Defendant stated he had read in the newspaper that Alsumiri (known to him as Jacob) had died, and he had talked about it with Hernandez, who mentioned she knew of Alsumiri. An interviewing detective then informed defendant they had already talked to Hernandez, and she had "told [them] everything that happened from start to finish ._" Defendant then asserted that Alsumiri was "hurting people" and he was "stopped from pretty much causing harm to anyone else ._" Defendant indicated Alsumiri had "threatened [Hernandez's] life or her mother's life, her children, their lives" and he had threatened to abduct her children; he was following Hernandez and stalking her and said he would kidnap her daughter.
Defendant told the detectives he had overheard Alsumiri threaten Hernandez and her daughter over the phone when defendant was with Hernandez. Alsumiri demanded that Hernandez bring him a backpack he had left in her car and told her to hurry; he also threatened Hernandez's daughter, saying he knew what school she attended. Defendant had seen Hernandez with a swollen face on a prior occasion, and Hernandez told defendant that Alsumiri had struck her-she said Alsumiri had become infatuated and obsessed with her and had said she belonged to him. She showed defendant bruises on her arm where Alsumiri had grabbed her. Hernandez also told defendant that Alsumiri had been calling her and would not leave her alone; he would leave notes on her car, and he was really scaring her. She told defendant that he had robbed people, had hurt other women, and he had been involved in a home invasion. Hernandez told defendant Alsumiri's harassment needed to stop, and defendant agreed after he heard the threatening phone call. Defendant told Hernandez that Alsumiri was "not gonna stop unless he's stopped ._" When asked what that meant, defendant responded, "I guess take his life ...."
After the call from Alsumiri, Hernandez dropped defendant off at home and she went to check on her daughter. Hernandez later contacted defendant; Alsumiri had called her again, demanding she bring him some of his stuff and again threatening her and her daughter. Hernandez wanted defendant to go with her to where Alsumiri was staying in Tulare. She said she was in fear for her life, and told defendant she had seen Alsumiri carrying weapons on other occasions. Thereafter, defendant obtained a .22-caliber semiautomatic handgun from the street near his house. Hernandez picked defendant up, and they drove together to where Alsumiri was staying. Along the way, they stopped and defendant, armed with the gun, got into the hatchback area of Hernandez's car.
When they picked up Alsumiri, defendant noted he looked to be about six feet two inches tall. Alsumiri cursed at Hernandez, got into the front passenger seat of the car, and started asking her "a bunch" of demanding questions. When Hernandez asked Alsumiri "what's with all the questions," defendant saw Alsumiri reach back and lift his hand to strike her. At that moment, defendant told the detectives he fired the gun at Alsumiri. He was unsure how many times he did so, but he kept shooting until the gun was empty. One shot accidentally hit the windshield. Alsumiri was still alive immediately after the shooting; he was moving around and making sounds.
Alsumiri kept moving around, and defendant told the detectives he "didn't need him, like, just swinging his arms or hitting [Hernandez] or getting busted driving .... I didn't know what, what he could do or was capable of at that point." So, defendant struck him in the head with the butt of the gun two or three times. Defendant covered Alsumiri with a blanket because they were still driving in traffic and defendant did not want anyone to see.
Once out of town, defendant directed Hernandez to pull down a dirt road and, after they stopped, defendant pulled Alsumiri out of the car; Alsumiri was still making sounds and moving. Defendant and Hernandez left Alsumiri lying in a vineyard and drove back to Visalia, they parked the car at defendant's home, and Hernandez walked back to her house. Defendant burned his clothes, shoes, and the blanket they used to cover Alsumiri, and defendant gave the gun to someone-"an older man" who "hangs out" at a store in Visalia. He and Hernandez cleaned out the car, defendant flushed bullet casings remaining in the car down the toilet, and they took the car to an auto repair business the next day to fix the bullet hole in the windshield.
During the interrogation, the detectives made several assertions, in addition to telling defendant Hernandez had said she had a sexual relationship with Alsumiri. Although untrue, detective Ramos asserted she had seen Hernandez the day after the shooting, and she did not appear to have a swollen face. In response, defendant insisted Hernandez told him Alsumiri had backhanded her, and the whole side of Hernandez's face was swollen. Detective Ramos also claimed, inaccurately, that Alsumiri was only 5 feet 11 inches tall-not bigger than defendant. Detective McBride suggested untruthfully they had touch DNA evidence and surveillance footage inculpating defendant. They also claimed Hernandez never said that Alsumiri raised his hand to hit her in the car and that she never told them he had struck her in the past. In response, defendant reiterated what Hernandez had told him, that he had seen her with a swollen face, and he saw Alsumiri raise his hand to strike Hernandez in the car.
B. Defendant's Trial Testimony
At trial, defendant testified that he met Hernandez when he was working at a gas station. They became friends and eventually started a relationship; over the four years they dated, defendant developed a close relationship with Hernandez's daughter. Defendant had seen Hernandez with a swollen face a week or two before Alsumiri's shooting; she told him this "individual" had hit her. Hernandez told defendant she had met Alsumiri at a party, he asked her for a ride, but then he wanted her to take him other places. When she refused, he became angry and struck her.
On May 10, 2018, defendant and Hernandez were running errands in Hernandez's car. They were parked somewhere when Hernandez received a phone call from Alsumiri, which defendant overheard. Alsumiri was demanding that Hernandez do certain things, and Hernandez became upset. After she hung up, she and defendant talked about the phone call. They finished their errands, and then drove back to defendant's house. Hernandez dropped defendant off, but she contacted him again by phone. She asked defendant if he would go with her to confront Alsumiri to get him to back off. After this call, defendant obtained a firearm from someone a few blocks from his home. Hernandez had described Alsumiri as bigger than defendant, and she told defendant he had been part of some home invasions and had made threats. Defendant felt he needed the gun to intimidate and scare Alsumiri during the confrontation. Defendant never intended to kill Alsumiri, and Hernandez never asked him to do so.
According to defendant, Hernandez picked him up at 6:00 that evening, and as they were driving to Alsumiri's location to confront him, Hernandez received a call from Alsumiri, who was demanding to know why she was late. Defendant moved into the hatchback of the car when they were a few minutes from Alsumiri's location; they agreed that if Alsumiri saw defendant he would not get in the car, and defendant felt he needed to confront Alsumiri so that he would back off. When Alsumiri got in the car, he became "loud and belligerent" because he noticed Hernandez's daughter was not in the car, and he demanded to know why she was not there. Defendant sat up somewhat to see what was going on, and he saw Alsumiri raise his left hand to strike Hernandez. At that moment, defendant "blanked out," leaned over the seat, and "everything went cloudy." When he regained focus, Alsumiri had been shot several times; defendant was still pulling the trigger, but all the bullets had been fired. Very briefly after Alsumiri was shot, he was swinging his arms around erratically and defendant thought he was going to hit Hernandez while she was driving, so defendant hit him in the head a few times with the gun. Hernandez was still driving, and defendant placed a blanket over Alsumiri so people would not see what happened.
Hernandez continued to drive, they left the city, and she proceeded toward Visalia on country roads. Hernandez eventually pulled over onto a road next to a vineyard. Defendant told her to drive into the vineyard; when they came to a stop, defendant pulled Alsumiri out and left him in the vineyard; Alsumiri was still alive at that point. Hernandez moved to the passenger seat, and they drove back to defendant's house. Defendant did not call the police because he was in shock. Defendant parked the car, and Hernandez walked to her own house. Defendant took a shower, burned his clothes, and retrieved the bullet casings from the car. The next day, he and Hernandez replaced the car's windshield because a bullet had hit it.
Defendant also testified about a traumatic childhood event relevant to his defense: when he was 12 years old, he heard his stepfather rape and assault his mother in their locked bedroom overnight. The next morning, when his stepfather released his mother from the room, she went to work, and defendant's stepfather left the home and never came back. Defendant and his mother talked about this event years later, and the incident has always stayed with him. The situation made him feel helpless and, since then, if he could help someone, he would do so. He has been involved in situations where women were about to be subjected to violence, and he was able to confront the assailant without any resulting violence.
On cross-examination, defendant indicated he had been unaware Hernandez had other men in her life beside him. She told defendant she had met Alsumiri at a family member's party, and he had asked her if she could give him a ride somewhere. Hernandez told defendant that Alsumiri became angry that she would not drive him where he wanted to go, and he struck Hernandez. Hernandez's face was swollen afterwards, and she told defendant who had hit her. Defendant had not encouraged Hernandez to call the police. When he first heard that Alsumiri had struck her, defendant did not think she was going to have any further involvement with Alsumiri.
On the afternoon of the shooting, Hernandez told defendant that Alsumiri carried a knife. After Hernandez asked him to confront Alsumiri, defendant borrowed a gun from someone on the street; the ammunition was already in the gun. Defendant did not know much about guns or whether this one had a safety. Defendant reiterated that he had blacked out when he started shooting Alsumiri, and he did not recall Alsumiri actually striking Hernandez.
C. Defense Expert Testimony
Defendant was psychologically evaluated by Luigi Piciucco, Ph.D., who diagnosed defendant with posttraumatic stress disorder (PTSD); Piciucco testified at trial. According to Piciucco, the assault of defendant's mother met the PTSD diagnostic criteria for a traumatic experience; defendant experienced intrusive thoughts, flashbacks and hypervigilance. Piciucco found no evidence defendant was malingering. Piciucco observed there were four or five different episodes prior to the murder where defendant intervened to "rescue" a woman he perceived to be in danger. He had intervened in two incidents in a bar where a woman was being verbally abused, and he confronted the alleged abusers. The other incidents were similar, but none involved any physical violence.
Piciucco testified that someone with PTSD may have memory gaps about their underlying trauma, and it is possible that someone with PTSD who experiences a new, highly emotional situation could suffer memory deficits, disassociations and blackouts. For someone with PTSD, the most common reaction to a new, highly emotional and stressful situation is an exaggerated response and loss of cognitive and emotional judgment. A person with PTSD might overreact and their perception might exaggerate the dangerousness of the situation.
On cross-examination, the prosecutor questioned Piciucco about whether those he evaluates may lie about underlying events, and then asked whether Piciucco compared statements someone gave him during an evaluation with anything to determine whether the statements were accurate. Piciucco indicated it is possible people lie to him about the underlying facts of the crime, but he does review police reports and witness statements as points of comparison. When asked whether there were inconsistencies between what Hernandez told the police and what defendant told Piciucco, he responded there was "some inconsistency in what she said versus what he said."
Piciucco agreed that in the events preceding the murder where defendant had intervened on behalf of other women, defendant did not report blacking out nor was there any physical violence. Piciucco opined that if defendant saw Alsumiri poised to strike Hernandez, that would be a trigger for defendant. He also opined, based on a posed hypothetical, that when Alsumiri entered the car and started questioning and yelling at Hernandez about her daughter, that also would have been a trigger for defendant's PTSD regardless of whether Alsumiri raised his hand to strike Hernandez in light of the information defendant had from Hernandez that Alsumiri had struck her in the past.
D. Additional Evidence
Defendant called four character witnesses to testify on his behalf. The prosecution introduced rebuttal evidence of four phone calls between Hernandez and defendant's phones between the time she dropped him off at his house and when she picked him up to meet Alsumiri on the night of the murder. It was established through phone records that calls were exchanged between Hernandez's and defendant's phones between 5:47 p.m. and 6:16 p.m. on the night of the murder, lasting approximately 26 minutes over all the calls.
II. Verdict and Sentencing
The jury deliberated for approximately nine hours over two days. During deliberations, the jury asked to review defendant's interrogation video from pages 15 to 23; and to review defendant's testimony on cross-examination "about [Alsumiri] wanting to be in [the] car anymore after being shot."
On December 14, 2022, the jury returned a verdict of not guilty of first degree murder on count 1, but found defendant guilty of the lesser offense of second degree murder; it also found true the attached firearm enhancements alleged under section 12022.53. On count 2, the jury found defendant not guilty of conspiracy to commit murder. Defendant was sentenced to 15 years to life for the second degree murder conviction, and 25 years to life for the firearm enhancement.
DISCUSSION
I. Confrontation Clause
Defendant argues the prosecutor improperly elicited testimonial hearsay from defense expert Piciucco in violation of state evidentiary law and defendant's Sixth Amendment right to confrontation. We begin with defendant's Sixth Amendment claim because it encompasses the state law hearsay issue.
A. Additional Background
During his direct examination, Piciucco testified that in formulating his opinions, he had reviewed, among other materials, the police department crime report and continuation report, a sheriff's report, a supplemental follow-up report, and defendant's recorded interrogation. He also testified that during his nearly four-hour assessment of defendant, he conducted several tests, including one for the detection of malingering- i.e., whether a patient is "faking" his symptoms; he concluded defendant showed no evidence of malingering.
On cross-examination by the prosecutor, Piciucco testified malingering related to lying about psychiatric symptoms, not whether the person being evaluated was lying about the facts of an event unconnected to symptoms. Piciucco acknowledged that sometimes people will lie during interviews, and he testified he was not always able to determine if someone is lying in a particular statement about the underlying facts of the crime. The prosecutor then asked, "So some of the things that you might do, do you compare the statements that they [the interviewee] are giving you to anything else to determine if the statements they are giving you is accurate or not?" Piciucco responded, "Well, certainly the police reports. [¶] In this case, I believe [defendant] was interviewed by a couple of detectives. At times, witness statements. And again, these are comparative elements, which doesn't mean that one is necessarily [more] truthful [than] the other-that's up to the judge and the jury to decide that part." When asked if he ever confronted someone about any inconsistencies between the reports and what a person was telling him during an assessment, Piciucco stated he would do that "just to see what they say. I mean, how do they explain it?"
The prosecutor then asked whether Piciucco had confronted defendant with any inconsistencies between what Piciucco had read in the police reports and what defendant told him about the crime. Piciucco discussed potential internal inconsistencies he perceived within defendant's police interview. Then, the prosecutor asked whether there was any inconsistency between what Hernandez told police as recorded in police reports that Piciucco had reviewed and what defendant told him; the following exchange occurred:
"[PROSECUTOR]: Okay. So you also said you reviewed the full police reports?
"[DR. PICIUCCO]: I believe I read what-I mean, what I was provided. I reviewed what I was provided.
"[PROSECUTOR:] Without going into the contents of that report, did you review the statement that was given to the police by [Hernandez]?
"[DR. PICIUCCO:] I believe so.
"[PROSECUTOR:] Okay. Did you notice any inconsistencies between what [defendant] was telling you that happened, and what [Hernandez] told the police?
"[DEFENSE COUNSEL]: Objection, your Honor. This is going to call for
"[PROSECUTOR]: I'm not asking for the contents.
"THE COURT: Exactly. You cannot ask for the contents, but you can answer yes or no.
"[DR. PICIUCCO]: There was some inconsistency in what she said versus what he said.
"[PROSECUTOR:] Okay. Did you confront [defendant] with those inconsistencies?
"[DR. PICIUCCO] Yes, I did.
"[PROSECUTOR:] 'He said [Hernandez] was saying this happened. You are saying this happened. What's going on here?'
"[DR. PICIUCCO:] Right.
"[PROSECUTOR:] What did he say about that?
"[DR. PICIUCCO:] He said-well, can I say the content or not?
"THE COURT: No. [¶] I'm going to disallow this line of questioning any further. Thank you."
B. Analysis
Defendant argues the prosecutor's question about inconsistencies between what Hernandez reported to police and what defendant told Piciucco elicited testimonial hearsay in violation of defendant's confrontation rights.
1. Forfeiture
The People first contend defendant forfeited any claim with respect to this testimony because no grounds for the objection were stated. Defendant maintains defense counsel was "'cut off by the court'" and prevented from stating the grounds, but the parties and the court clearly understood that the grounds for the objection encompassed hearsay, the confrontation clause under the federal Constitution's Sixth Amendment, and Evidence Code section 352, thus preserving defendant's claims for appeal.
We agree with defendant that his hearsay and confrontation clause claims were preserved for appeal. When interposing her objection to the prosecutor's question that related to what Hernandez had said to police, defense counsel was precluded from articulating the grounds for her objection because of an interruption from the prosecutor. In interrupting defense counsel, the prosecutor and the trial court both commented on how the prosecutor's question was not eliciting the contents of anything Hernandez told the police, and the trial court overruled the objection. This interchange makes clear the objection was overruled because the prosecutor's question did not seek to elicit hearsay. As such, it was equally clear, given the court's ruling on hearsay, any further objection under the confrontation clause would have been futile-evidence that is not hearsay does not violate the confrontation clause. (People v. Sanchez (2016) 63 Cal.4th 665, 674 (Sanchez) ["The confrontation clause 'does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.'"].)
In addition to this context at trial, during pretrial proceedings defense counsel had moved in limine to exclude any statements by Hernandez on hearsay and confrontation clause grounds-the prosecutor and the trial court had reason to know from the outset that defense counsel objected to the admission of Hernandez's statements on this basis, and apparently anticipated the grounds for defense counsel's objection to this testimony at trial before she was able to communicate it.
Although defense counsel was prevented from articulating the specific grounds for her objection to the question posed, the basis for it was obvious and clearly understood by both the prosecutor and the trial court, preserving defendant's hearsay and confrontation clause arguments for appeal. (People v Boyette (2002) 29 Cal.4th 381, 413-414 [where defense counsel was cut off by court before fully articulating grounds for objection and the basis for objection could be discerned from the record, the claim was adequately preserved for appeal].)
2. No Error
Defendant contends the prosecutor elicited testimonial hearsay from Piciucco that there was "some inconsistency" between what Hernandez told the police and what defendant told Piciucco, thus violating state and federal law. According to defendant, although Piciucco did not relate verbatim what the police report recorded about what Hernandez said, the clear implication of his testimony was that Hernandez's version of events about the crime differed from defendant's statements and trial testimony, and this was incriminating because it tended to impeach defendant's credibility. As the substance of the out-of-court statements referred to were readily inferable and were offered for the truth of the matter asserted, they constitute hearsay. Further, because Hernandez's recorded statements were made to law enforcement, defendant contends they are testimonial. As neither Hernandez nor the officer who authored the report testified at trial, defendant did not have an opportunity to cross-examine them, and the admission of the out-of-court statements violated defendant's right to confrontation under the Sixth Amendment.
"The confrontation clause of the Sixth Amendment to the United States Constitution, which is binding on the states under the Fourteenth Amendment, guarantees the right of a criminal defendant 'to be confronted with the witnesses against him.'" (People v. Hopson (2017) 3 Cal.5th 424, 431, quoting U.S. Const., 6th Amend., citing Pointer v. Texas (1965) 380 U.S. 400, 406.) In Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the high court held the Sixth Amendment bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." (Crawford, supra, at pp. 53-54.) Crawford "identified unconfronted accomplice statements to authorities as 'core testimonial statements that the Confrontation Clause plainly meant to exclude.'" (Hopson, supra, at p. 432, quoting Crawford, supra, at p. 63.) "Crawford also made clear that this rule of exclusion applies only to testimonial hearsay .." (Hopson, supra, at p. 432, citing Crawford, supra, at p. 60, fn. 9.)
Therefore, to determine whether a statement is admissible for purposes of the Sixth Amendment, "a court addressing the admissibility of out-of-court statements must engage in a two-step analysis. The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay ...." (Sanchez, supra, 63 Cal.4th at p. 680.)
"Hearsay may be briefly understood as an out-of-court statement offered for the truth of its content." (Sanchez, supra, 63 Cal.4th at p. 674.) Hearsay is formally defined as "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) A "'[s]tatement'" is an "oral or written verbal expression" or the "nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression." (Evid. Code, § 225.) "[A] hearsay statement is one in which a person makes a factual assertion out of court and the proponent seeks to rely on the statement to prove that assertion is true." (Sanchez, supra, at p. 674.)
In the hearsay context, relaying an oral or written verbal expression (i.e., a "'[s]tatement'" under Evid. Code § 225) frequently involves a verbatim recitation of the exact out-of-court words used by the declarant. Yet, there is authority which holds that a description or a characterization of an out-of-court statement may also constitute testimonial hearsay, even though no transcript or verbatim recitation of the out-of-court statement is admitted.
As defendant points out, several federal appellate courts have recognized that the summarization or description (as opposed to verbatim recitation) of the substance of an unavailable witness's testimonial statements may constitute impermissible hearsay that violates the confrontation clause. (Ocampo v. Vail (9th Cir. 2011) 649 F.3d 1098, 11091110 (Ocampo) [out-of-court statements admitted at trial are statements for the purposes of the confrontation clause if, fairly read, convey to the jury the substance of an out-ofcourt, testimonial statement of a witness who did not testify at trial]; United States v. Kizzee (5th Cir. 2017) 877 F.3d 650, 657 (Kizzee) ["Officer testimony that allows a fact- finder to infer the statements made to him-even without revealing the content of those statements-is hearsay if 'offered to establish identification, guilt, or both.'"]; United States v. Meises (1st Cir. 2011) 645 F.3d 5, 21 [confrontation clause applies where a witness "indirectly, but still unmistakably, recounts a co-defendant's out-of-court accusation"]; United States v. Reyes (2d Cir. 1994) 18 F.3d 65, 69 ["[A]lthough the jury was not told exactly what words [the codefendants] had spoken, [the witness's] testimony clearly conveyed the substance of what they had said."]; United States v. Silva (7th Cir. 2004) 380 F.3d 1018, 1020 [confrontation clause violated where officer summarized conversations he listened to between a confidential informant and a third party who implicated a person named "'Juan,'" which was the defendant's first name].)
A description or a summary of an out-of-court statement is distinct from implied hearsay. Implied hearsay involves evidence of an express statement offered to prove the truth of a matter that is contained within the express statement by implication. (See, e.g., People v. Garcia (2008) 168 Cal.App.4th 261, 289.)
The sole California authority defendant cites, People v. McNamara (1892) 94 Cal. 509, also seems to conform to these federal authorities as to the hearsay nature of descriptions of out-of-court statements that inculpate the defendant, although McNamara provides little detail about the testimony at issue. There, the court held it was error to permit a prosecuting witness to testify that he gave a description of the robbers when he reported the matter to the police, and a police officer testified he arrested the defendant based on information he received in part from that prosecuting witness. (Id. at p. 514.) McNamara itself relied on People v. Johnson (1891) 91 Cal. 265, which held that a police officer's testimony that he was given a description of the defendant by the victim before his arrest was hearsay. (Id. at pp. 265-266; see id. at p. 271 (conc. opn. of Beatty, J.).)
Here, the expert's testimony that he noted "some inconsistency" between what Hernandez told police and what defendant told him references two potential layers of out-of-court statements-(1) something Hernandez said out of court to the police and (2) something a law enforcement officer apparently wrote in a report about what Hernandez said, which Piciucco reviewed. However, because Piciucco testified only that "[t]here was some inconsistency in what she said versus what he said," it is impossible to infer what Hernandez said or what the report documented and whether the purported inconsistency related to anything material at issue. Moreover, absent more specificity, it is impossible to determine whether Piciucco's characterization of "some inconsistency" was something he merely perceived to be inconsistent, or whether he was referring to an express and direct contradiction in details. In this context, the jury was left with nothing to infer what Piciucco was referring to or whether it was material. Absent more information, the substance of what Hernandez said and what the police report recorded could not be readily inferred by the jury and, thus, there was no basis for the jury to draw an adverse inference regarding defendant's credibility generally or specifically as to any particular fact.
The vagueness inherent in Piciucco's testimony, even when contemplated in the context of the entire record, distinguishes this case from those cited by defendant. All the decisional authority defendant relies on involves law enforcement trial testimony that information was received from a witness or an informant that was then relied on to arrest and/or prosecute the defendant for the crime charged-providing a clear inference the witnesses made statements as to the defendant's identity and/or his guilt. For example, in Ocampo, two detectives conveyed to the jury the critical substance of a nontestifying witness's (Vasquez) out-of-court statements, even though the statements were not repeated verbatim. (Ocampo, supra, 649 F.3d at pp. 1102-1104.) The sum of one detective's testimony "indicated that Vasquez had confirmed [the defendant's] presence at the scene of the crime," which was the key issue at trial. (Id. at p. 1112.) A second detective testified he had used Vasquez's statements to search for a list of clothes at the defendant's residence, and he testified that he did not go back and show photos of the defendant to witnesses because a coconspirator and two additional witnesses had implicated the defendant; the testimony made clear the two additional witnesses included Vasquez. (Ibid.) In closing argument, the prosecutor asserted Vasquez had corroborated testifying witnesses' identification of the defendant as the shooter. (Id. at pp. 1112-1113.) The appellate court concluded the detectives' testimony violated the confrontation clause-i.e., constituted testimonial hearsay-because the jury was likely to infer the nontestifying witness made statements to the detectives identifying the defendant as the shooter despite that they were not recited verbatim. (Id. at pp. 1111, 1113.)
Ocampo relied on several United States Supreme Court cases for the proposition that it was clearly established prior to Crawford "that in-court descriptions of out-of-court statements, as well as verbatim accounts, are 'statements' and can violate the Confrontation Clause, if the requisite requirements are otherwise met." (Ocampo, supra, 649 F.3d at p. 1108, citing Idaho v. Wright (1990) 497 U.S. 805, 811, Moore v. United States (1976) 429 U.S. 20, and Williamson v. United States (1994) 512 U.S. 594, 597.) These cases all involved verbatim or near-verbatim recitations of out-of-court inculpatory statements that clearly and unmistakably relayed the statements' substance, but they did not expressly consider whether the testimony given clearly relayed the substance of the out-of-court statements and thus constituted hearsay on that basis. (Idaho v. Wright, supra, at pp. 809-811 [pediatrician, relying on notes that were not detailed, was permitted to describe in near-verbatim detail inculpatory answers a child gave during an interview to specific questions posed, including the child's statement her father had touched her sexually]; Moore, supra, at pp. 21-22 [out-of-court statements of an informant expressly indicating the defendant owned an apartment where drugs were found, inculpating the defendant, were hearsay]; Williamson, supra, at pp. 596-598 [a codefendant's out-of-court statements to a narcotics agent inculpating himself and the defendant, as related by the agent at trial, were hearsay; the question was whether the statements came within a hearsay exception].)
Like Ocampo, in Favre v. Henderson (1972) 464 F.2d 359 (Favre), a police officer who had arrested the defendant testified at trial that he had information regarding the facts of the case from two reliable confidential informants, which led him to seek the arrest of the defendant for an armed robbery. (Id. at pp. 360-362.) The appellate court held this testimony was hearsay because, "[a]lthough the officer never testified to the exact statements made to him by the informers, the nature of the statements . . . was readily inferred. The statements were offered to establish the truth of the matters asserted therein-identification, guilt, or both," and they were not subject to cross-examination. (Id. at p. 362.)
Much the same, in Hutchins v. Wainwright (11th Cir. 1983) 715 F.2d 512, officers' testimony and the prosecutor's closing argument made clear the police officers who arrested the defendant had been in contact with a nontestifying informant, and that the informant had witnessed the crime and knew who committed it-i.e., the defendant. (Id. at pp. 515-516.) The court concluded that "[a]lthough the officers' testimony may not have quoted the exact words of the informant, the nature and substance of the statements suggesting there was an eyewitness and what he knew was readily inferred. [Citations.] Indeed, the violation became clear when the prosecutor in final argument, urged the jury to draw the inference that the [informant] knew who committed the crime but was afraid to come to court." (Id. at p. 516.)
Finally, in Kizzee, a detective questioned a suspect (Brown) regarding drugs found in his car, and Brown inculpated the defendant. (Kizzee, supra, 877 F.3d at p. 654.) Brown later recanted and refused to testify. (Ibid.) At trial, the prosecutor asked the detectives questions that conveyed the substance of what Brown had said. (Id. at pp. 655, 657-658.) The appellate court concluded that the testimony introduced Brown's out-ofcourt statements by implication and revealed their content: "The prosecutor's questions explicitly identified [the defendant] by name, linking him to the substance of Brown's interrogation. In fact, the prosecutor's questions appeared designed to elicit hearsay testimony without directly introducing Brown's statements." (Id. at pp. 657-658.) The court observed that "a prosecutor's questions may trigger the Confrontation Clause by revealing to the jury that a nontestifying witness conveyed incriminating information." (Id. at p. 658.) The court concluded that because Brown's statements could be readily inferred from the prosecutor's questions and the detective's testimony, it constituted a testimonial hearsay statement for purposes of the confrontation clause. (Id. at pp. 658659.)
Each of these cases involved testimony that clearly and logically implied the substance of out-of-court statements, which the jury was likely to infer inculpated the defendant. The precise words spoken to the officers were effectively irrelevant because the substance was clearly conveyed-either the officer took some action that made the content of the statement readily inferable (Favre, supra, 464 F.2d at p. 362 [information from informants led officer to arrest the defendant]) or the nature of the question or other testimony and argument left no doubt what the declarant had said (Ocampo, supra, 649 F.3d at pp. 1112-1113 [detectives' testimony conveyed critical substance of the out-ofcourt statements, and any doubt about what the jury would have understood was dispelled by the prosecutor's remarks at closing]; Kizzee, supra, 877 F.3d at p. 658 [prosecutor's questions and detective's answers together revealed the substance of the out-of-court statements]).
Defendant argues the situation here is analogous to these cases. According to defendant, the testimony supported "the inescapable inference that Hernandez told the police a story that differed from [defendant's] account." Defendant maintains that although the specific inconsistency was not described, the jury could readily infer the substance and nature of Hernandez's police statement because the jury was likely to infer that Hernandez's statement contradicted defendant's, which incriminated defendant because it tended to impeach his credibility.
We are unpersuaded. Here, the context does not permit a ready inference about the substance of what Hernandez said and, in turn, what the police report recorded. Even considering Piciucco's testimony in combination with other evidence, it was not readily inferable what inconsistency Piciucco was referring to or whether it involved a material detail that contradicted defendant's account of the shooting. The jury was aware of two purported differences that had come up in the interrogation-that Hernandez had not told police Alsumiri had struck her or raised his hand to her in the vehicle. Yet, Piciucco testified there was some inconsistency between what Hernandez said versus what defendant said-the detectives made assertions about what Hernandez had not said. Piciucco's testimony did not readily connect back to the detectives' interrogation statements in a manner showing that was what Piciucco was referencing. Without knowing more about the version of events Hernandez relayed to the police, Piciucco's reference to "some inconsistency" was too vague to support a ready inference of a material or incriminating difference in their respective versions of events.
The jury had no details about the actual version of events Hernandez gave the police to assess what "some inconsistency" might mean in relation to defendant's credibility or his guilt. Notably, during closing argument, the prosecutor did not revisit this portion of Piciucco's testimony, nor did the prosecutor comment on any of Hernandez's purported statements or nonstatements to police. Because the substance of what Hernandez said, as recorded in a police report, was not inferable from Piciucco's testimony, this case is distinguishable from Ocampo, Favre, Hutchins, Kizzee and McNamara.
Under Evidence Code section 1200, subdivision (a), "'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." As the substance of the out-of-court statements to which Piciucco referred was not readily inferable, no evidence of an out-of-court statement was relayed to the jury that could constitute hearsay. (Evid. Code, § 225 ["'Statement' means ... oral or written verbal expression"].) Given that Piciucco's testimony did not relay a hearsay statement, the confrontation clause was not implicated. (Sanchez, supra, 63 Cal.4th at p. 674 [if testimony does not relay hearsay, there is no confrontation clause violation].)
II. Section 352
Defendant argues, alternatively, even if Piciucco's response was not testimonial hearsay, admitting it was an abuse of discretion under Evidence Code section 352 because its probative value was substantially outweighed by its prejudicial effect. The People contend there is no basis to conclude the jury drew an adverse inference regarding defendant's credibility or that Piciucco's testimony would have caused the jury to disregard defendant's version of events.
A. No Error
Evidence Code section 352 states, "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." "But Evidence Code section 352 requires the exclusion of evidence only when its probative value is substantially outweighed by its prejudicial effect. 'Evidence is substantially more prejudicial than probative [citation] [only] if, broadly stated, it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome" [citation].'" (People v. Tran (2011) 51 Cal.4th 1040, 1047, quoting People v. Waidla (2000) 22 Cal.4th 690, 724; see People v. Steskal (2021) 11 Cal.5th 332, 355.)
Defendant argues the probative value of Piciucco's testimony about the existence of an inconsistency was limited to the prosecutor's attempt to undermine the credibility of Piciucco's opinion, but inconsistencies between defendant's statements to Piciucco and Hernandez's statements contained in the police reports Piciucco reviewed had little to do with his evaluation of defendant's mental health. Thus, defendant argues, the probative value of the testimony was minimal. In comparison, defendant argues, the testimony created a substantial risk of undue prejudice the jury would discredit defendant's credibility.
Generally, "a witness testifying as an expert ... may be fully cross-examined as to ... the matter upon which his or her opinion is based and the reasons for his or her opinion." (Evid. Code, § 721, subd. (a).) "Such cross-examination properly includes documents and records examined by an expert witness in preparing his or her testimony," (People v. Smith (2007) 40 Cal.4th 483, 509), so long as it does not seek to elicit casespecific hearsay (Sanchez, supra, 63 Cal.4th at p. 686). "The scope of cross-examination of an expert witness is especially broad. [Citation.] Evidence that is inadmissible on direct examination may be used to test an expert's credibility, though the court must exercise its discretion under Evidence Code section 352 to limit the evidence to its proper uses." (People v. Gonzales (2011) 51 Cal.4th 894, 923.)
We agree Piciucco's testimony about any perceived inconsistency was of limited probative value because his opinion that defendant suffered from PTSD and how a person with PTSD might react to triggering stimuli was not based on defendant's credibility in relaying the events of murder. The fact that there was "some inconsistency" had little to do with the reliability or value of Piciucco's opinion, and he indicated in his testimony he used witness statements as "comparative elements," but testified it was up to the judge and jury to determine the underlying facts. Yet, the potential risk of prejudice was also minimal. Piciucco said only that there was "some inconsistency" between what Hernandez said to police and what defendant told Piciucco, but without more information, there was no inference about defendant's credibility to draw. Piciucco's testimony did not confirm anything the detectives asserted during the interrogation, and the mere fact that there was some inconsistency, as perceived by Piciucco, did not tend to support any conclusion that defendant, rather than Hernandez, was not generally being truthful about what had happened. This is especially so as the jury had no information about what version of events Hernandez gave police that could have led it to infer that an unspecified inconsistency about an unidentified detail meant defendant was not credible.
Despite the minimal probative value of the testimony, it was not significantly outweighed by the potential for prejudice.
Having considered the merits of defendant's claim of error under Evidence Code section 352, we do not reach the issue of forfeiture raised by the People.
III. Failure to Request a Limiting Instruction
Defendant argues that during his police interrogation, the interviewing detectives made statements asserting Hernandez had not told them Alsumiri ever struck her, nor had she told them he had raised his hand to strike her in the car when he was shot. Defendant contends that while those statements could have been admitted for a nonhearsay purpose of providing context for defendant's interrogation responses (see, e.g., People v. Maciel (2013) 57 Cal.4th 482, 524), his trial counsel's failure to request a limiting instruction directing the jury not to consider the detectives' statements for their truth constituted IAC.
A. Additional Background
Defendant's entire police interrogation video was admitted during trial and played for the jury. During the interrogation, the detectives challenged some of defendant's version of events by pointing out that Hernandez had not said something similar. First, detective McBride challenged defendant's assertion that Alsumiri raised his hand to strike Hernandez right before defendant shot him:
"Det. McBride: .. .So there's one thing I, I don't understand is, you know, my partner said that we've talked to [Hernandez], we, we actually have talked to her for a long time a couple times.
"[Defendant]: Okay.
"Det. McBride: And you're saying a couple things that [Hernandez] never ever said and.
"[Defendant]: .Okay.
"Det. McBride: .And we talked to her for hours, uh, yesterday, and so at the moment that you shot [Alsumiri], we know exactly how that happened.
"[Defendant]: .Okay.
"Det. McBride: .And, um, he didn't raise his hand at the moment you shot him to hit [Hernandez], she never said that, and you, if you were hiding in the back there's no way you probably could have seen that, so, why add that little detail?" (Italics added, underscoring omitted.)
Second, detective Ramos challenged defendant's statement that Hernandez had told him that Alsumiri had hit her after defendant had noticed her face was swollen:
"Det. Ramos: .. .Okay, and I'm gonna stop you right there okay, like I said, we've been honest with you.
"[Defendant]: .Yeah.
"Det. Ramos: Um, so [Hernandez] never told me that he hit her, she never said that.
"[Defendant]: Yeah, she, yeah, her whole face, side of her face was swollen bigger than the other side, I mean it was obvious, I mean, you could see it.
"Det. Ramos: I don't think so because I talked to [Hernandez] like right after he, right after we found him, 'cause she was like the very first person that we talked to.
"Det. McBride: Like the next day.
"Det. Ramos: Like it had to be the next day or the following day.
"[Defendant]: What's that?
"Det. Ramos: That I, that we talked to her.
"[Defendant]: .Okay .
"Det. Ramos: .And she wasn't swollen, and she never said that he was beating her up.
"Defendant: That's weird.
"Det. Ramos: .She never told me.
"[Defendant]: .That's weird, because like I said, it wouldn't happen the same, didn't happen the same day that he hit her and her face was swollen, this had just happened the day before that, and like I said, and then he was calling her saying he, I want you over here, come get me, pick me up, this and that and so forth.
"Det. Ramos: .Okay.
"[Defendant]: .. .And like I said, so, he backhanded her, that's what she told me, he backhanded her and the whole side of her face was, was all swollen, you could tell she, she (Unintelligible).
"Det. Ramos: .So let me ask you this.
"[Defendant]: .Like.
"Det. Ramos: .So why, uh, we talked to her for a long time.
"[Defendant]: .Okay .
"Det. Ramos: .I have to talk to her, I have talked to her at least three times.
"[Defendant]: Okay.
"Det. Ramos: She's never said that he hit her." (Underscoring omitted.)
After the interrogation video was played for the jury, Ramos testified she had spoken to Hernandez a couple of times, but Ramos had never seen her with any injuries. On cross-examination, however, Ramos testified her first face-to-face contact with Hernandez was on June 13, 2018, more than a month after the murder. This contradicted the statement Ramos made to defendant during the interrogation about swelling on Hernandez's face.
Defense counsel also asked Ramos whether, during an interrogation of a suspect, Ramos might say things that are not necessarily true when asking questions. Ramos responded that "[e]verything I said here was true and correct." However, defense counsel followed up with questions pointing out several things the detectives told defendant during the interview that Ramos conceded were inaccurate. For example, detective McBride suggested defendant's touch DNA was found on the victim, but Ramos conceded they did not have any information regarding touch DNA on Alsumiri's clothing. And while detective McBride implied they had surveillance videos of defendant, Ramos also conceded they had never seen defendant on any surveillance video. Finally, although Ramos had asserted during the interview that Alsumiri was only 5 feet 11 inches tall to challenge defendant's assertion Alsumiri was larger than defendant, Ramos conceded her statement was incorrect as Alsumiri was actually over six feet two inches tall.
During closing arguments, defense counsel revisited these assertions, and highlighted why the jury should not accept as true anything the detectives said during defendant's interrogation: "What is not evidence? What is not evidence is anything that the detectives said in the interrogation. Because as we know and Detective Ramos said they can tell a suspect things that are not true when they are interrogating a suspect. [¶] So what do we know is not true? We know Mr. Alsumiri was not smaller than [defendant]. And we know that there was no touch DNA or surveillance video that showed any of this. And we know the biggest thing because this was a point that [the prosecutor] tried to make during testimony, was that the detectives never saw [Hernandez] with a swollen face. Well, they never saw [Hernandez] in person until a month after Mr. Alsumiri had died."
Defense counsel also argued as follows:
"What do we know? We know that [defendant] and [Hernandez] were in a four-year relationship. We know that [defendant] loved [Hernandez] very much. We know that both [defendant] and [Hernandez] felt very connected because they both had special-needs daughters that they felt very protective of. We also know that [Hernandez] was in a relationship with Mr. Alsumiri, and that [defendant] didn't know about that.
"We also know that [Hernandez] tells [defendant] that Mr. Alsumiri had struck her, hit her in her face causing her face to be swollen. We know that [Hernandez] told [defendant] that Mr. Alsumiri was stalking her, following her, threatening her, and threatening to kidnap her daughter, and that [Hernandez] told [defendant] that Mr. Alsumiri is big, dangerous, and armed with a weapon. [¶] ... [¶]
".... Now it doesn't matter whether or not Mr. Alsumiri did all of those things. I'm not saying that Mr. Alsumiri did. I'm saying that what was important is what [defendant] had been told by [Hernandez]. That's what's important. All of the facts as known to [defendant] at that time...."
No limiting instruction regarding the detectives' assertions during the interrogation was requested or given at the time the video was introduced, nor was a limiting instruction requested or included in the final jury instructions given at the close of trial.
B. Analysis
1. Legal Standard
Criminal defendants have the right to the effective assistance of counsel under the Sixth Amendment of the United States Constitution and article I, section 15 of the California Constitution. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); In re Long (2020) 10 Cal.5th 764, 773.) To prevail on a claim of IAC, a defendant bears the burden of showing "that counsel's performance was deficient," such that "counsel was not functioning as the 'counsel' [constitutionally] guaranteed," and "that the deficient performance prejudiced the defense." (Strickland, supra, at p. 687; accord, People v. Centeno (2014) 60 Cal.4th 659, 674.) Thus, a defendant must demonstrate both that (1) "counsel's performance ... fell below an objective standard of reasonableness under prevailing professional norms" and (2) there was "a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
"Because of the difficulties inherent in making the evaluation [of counsel's performance], a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" (Strickland, supra, 466 U.S. at p. 689.) Reversal is permitted "'only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.'" (People v. Arrendondo (2019) 8 Cal.5th 694, 711.) "In light of the deferential standard, appellate courts do not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight and, for this reason, tactical errors do not generally provide a basis for reversing a conviction." (People v. Clotfelter (2021) 65 Cal.App.5th 30, 55; accord, People v. Scott (1997) 15 Cal.4th 1188, 1212.)
2. Conceivable Strategic Reason Not to Seek Limiting Instruction
There is no dispute the detectives' assertions as to what Hernandez did not say to police are out-of-court statements; nor is there a dispute that, if the detectives' assertions were offered for the truth of the matter stated-i.e., that Hernandez did not say certain things-they constituted hearsay. As defendant notes, although the precise basis for admission of the entire interrogation is not contained in the record, there was a nonhearsay purpose for which the detectives' assertions could have been admitted-to place defendant's interrogation responses into context. (See People v. Maciel, supra, 57 Cal.4th at p. 524, citing People v. Riccardi (2012) 54 Cal.4th 758, 801-802, fn. 21 [detective's statements properly admitted for the nonhearsay purpose of giving context to the interviewee's answers]; accord, People v. Fayed (2020) 9 Cal.5th 147, 169 [statements providing context for other admissible statements are not hearsay].)
As noted ante, "'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) A "'[s]tatement' means (a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression." (Evid. Code, § 225.) What a declarant does not say is not a "'[s]tatement'" within the meaning of Evidence Code section 225 and, thus, cannot constitute hearsay. As a result, the detectives' assertions about what Hernandez did not say represent only one layer of out-of-court statements-those of the detectives.
Where evidence has a hearsay and a nonhearsay purpose, the trial court may give a limiting instruction to ensure the jury considers the evidence for a proper purpose, but is not generally required to do so. (People v. Cowan (2010) 50 Cal.4th 401, 479 ["Absent a request, a trial court generally has no duty to instruct as to the limited purpose for which evidence has been admitted."]; Evid. Code, § 355 ["When evidence is admissible . . . for one purpose and is inadmissible . . . for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly."].) Defendant's trial counsel did not request a limiting instruction regarding the detectives' statements during interrogation.
One of the primary defense theories was that defendant acted in the heat of passion to negate the malice element of murder. A heat of passion theory of manslaughter has both an objective and subjective component. (People v. Moye (2009) 47 Cal.4th 537, 549 (Moye).) "'"To satisfy the objective or 'reasonable person' element of this form of voluntary manslaughter, the accused's heat of passion must be due to 'sufficient provocation.'" [Citation.]' [Citation.] '[T]he factor which distinguishes the "heat of passion" form of voluntary manslaughter from murder is provocation. The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.]' [Citation.]" (Id. at pp. 549-550.) "To satisfy the subjective element ..., the accused must be shown to have killed while under 'the actual influence of a strong passion' induced by such provocation." (Id. at p. 550.) "'Heat of passion arises when "at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment." [Citations.]'" (Ibid.) "'"However, if sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter ._" [Citation.]'" (Ibid.)
Defendant argues that if the jury accepted as true the detectives' out-of-court assertions that Hernandez never told them that Alsumiri had struck her in the past or raised his hand to strike her in the car right before being shot by defendant, it undercut defendant's credibility and testimony on facts critical to provocation under the heat of passion theory. Defendant contends that because his trial counsel argued to the jury that it should not treat the detectives' interrogation statements as true, there was no reasonable tactical purpose for declining to request an appropriate limiting instruction informing the jury the detectives' out-of-court assertions were not to be considered for their truth.
The record in this appeal does not divulge counsel's reasons for not seeking a limiting instruction, but there is a conceivable reasonable tactical basis for declining to seek a limiting instruction under these circumstances. During the interrogation, the detectives made several assertions, some of which were potentially beneficial to the defense, particularly if the jury accepted them as true. For example, Ramos asserted Hernandez told the detectives that Alsumiri was threatening her daughter; if true that Hernandez had said this, it tended to corroborate defendant's interrogation statements and his trial testimony that Hernandez told him the same thing. Further, if it was accepted as true that Hernandez told detectives she was dating Alsumiri, this was potentially very beneficial to defendant as it tended to paint Hernandez in a manipulative light, and it suggested Hernandez may have lied to defendant and (perhaps the detectives) about Alsumiri in other regards.
Sufficient provocation to support heat of passion was not dependent on proving that Alsumiri had actually struck Hernandez in the past, or that he raised his hand in the car with the intent to strike her, but whether defendant reasonably believed Alsumiri had done so. (Moye, supra, 47 Cal.4th at pp. 549-550 ["'The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim.'"].) In closing argument, defense counsel addressed this by arguing it did not matter if Alsumiri did all of the things Hernandez said he had-what was important was what she told defendant and what defendant knew at the time of the shooting.
By not requesting a limiting instruction, defense counsel was free to argue to the jury that what the detectives asserted during the interrogation was not necessarily true, highlighting how the detectives had misrepresented facts that were potentially damaging to the defense, while simultaneously leaving open the possibility the jury would accept as true other assertions made by the detectives that were helpful to the defense. In this regard, not requesting a limiting instruction could reflect a reasonable tactical strategy to deal with admissible evidence the jury was going to hear notwithstanding any limiting instruction. As we can identify a conceivable tactical strategy that could have supported trial counsel's election not to request a limiting instruction, defendant cannot establish IAC on this record. (People v. Johnson (2021) 10 Cal.5th 1116, 1165 [where counsel's tactics or strategic decisions do not appear in the record, no finding of IAC on appeal unless there could be no conceivable reason for counsel's acts or omissions].)
3. No Prejudice
Nevertheless, even assuming trial counsel had no reasonable tactical basis for not requesting a limiting instruction, there was no prejudice. To support a claim of IAC, defendant must establish a "reasonable probability" that the outcome would have been different had a limiting instruction been requested. (Strickland, supra, 466 U.S. at p. 694; accord, People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, supra, at p. 669; accord, Harrington v. Richter (2011) 562 U.S. 86, 104.) "It is not enough 'to show that the errors had some conceivable effect on the outcome of the proceeding.' [Citation.] Counsel's errors must be 'so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" (Harrington, supra, at p. 104, quoting Strickland, supra, at p. 687.)
Defendant argues that, but for counsel's failure to request a limiting instruction, there is a reasonable probability of a different, more favorable outcome: the detectives' assertions were so significant that they damaged defendant's credibility about specific facts critical to the central disputed issue in the case-i.e., defendant's state of mind. According to defendant, the necessary provocation to support the heat of passion theory rested on defendant's account of the events, especially that Alsumiri had raised his hand to strike Hernandez just before defendant shot him. According to defendant, these facts supported both the objective and subjective components of the heat of passion theory. If the jury believed Alsumiri had not hit Hernandez in the past or raised his hand to strike her in the car, defendant asserts a reasonable jury would likely conclude defendant's whole account was fabricated and reject the heat of passion theory.
We are unpersuaded. The trustworthiness and truth of the detectives' statements during interrogation was significantly eroded. The jury knew, as highlighted by defense counsel's cross-examination of detective Ramos and defense counsel's closing argument, the detectives made inaccurate statements about significant details, including Alsumiri's height, seeing Hernandez the day after Alsumiri had been killed, and implying to defendant they had evidence (such as DNA and surveillance videos) they did not have. Moreover, their statements did not indicate they actually asked Hernandez whether Alsumiri had tried to hit her or tried to strike her in the car-the jury had no idea what version of events Hernandez relayed to the detectives.
Additionally, the statements themselves provided little to no basis for the jury to make any credibility determination about defendant's version of events. First, the jury did not hear that Hernandez's story aligned with defendant in every respect but a few critical distinctions. The detectives revealed nothing as to what Hernandez actually said about the events in the car that could have been meaningfully compared with defendant's version for credibility purposes and, even if they had, the jury had no basis to believe the detectives were relaying accurate information.
Aside from obvious reliability issues about what the detectives were telling defendant, which was laid out in detective Ramos's cross-examination, the jury would have known Hernandez had reason to try to reduce her own culpability in Alsumiri's death, which could have included shifting more blame to defendant. Defendant argues the jury would have believed Hernandez had no reason to omit that Alsumiri raised his hand to strike her in the car (ostensibly because this potentially mitigated her own culpability), but Hernandez could have presented any narrative of events to the detectives-the jury had no idea what she told them about the shooting. On top of that, there was evidence Hernandez lied to defendant about the nature of her relationship with Alsumiri, suggesting she might have been lying and manipulating defendant (and perhaps the detectives) in other ways relevant to Alsumiri. The detectives' two statements about what Hernandez purportedly omitted from her undivulged version of events did not relay her rendering of events or provide a basis to infer Hernandez was more reliable and truthful than defendant.
Defendant contends the jury heard the detectives' assertions during the interrogation implying Hernandez was telling the truth, compounding the likelihood the jury would draw adverse inferences regarding defendant's credibility. We disagree. Detective McBride asserted they had already talked to Hernandez and "she told us every single thing from start to finish." But this does not show McBride was vouching in any manner for the truth of Hernandez's version; rather, he was encouraging defendant to tell them his version of events because Hernandez had already told them everything. Notably, a few questions later at 23:42 of the interrogation video, McBride said, "Who says that, who says that, [Hernandez] told us everything that's exactly the truth, you know, I mean ._" And then McBride rephrases his question, "[s]hould we just go by what [Hernandez] says, is what she says is the truth, or do you have your own truth?" McBride's statements were not an assertion or an implication that Hernandez was telling the truth-in fact, it appears McBride was telling defendant they needed his version of events because "[w]ho says that" Hernandez told them the whole truth. Defendant points out Ramos testified everything she said during the interrogation was true, but that assertion was immediately and effectively impeached on cross-examination. Further, because the jury did not know what version of events Hernandez gave the detectives, the detectives' assertions supplied the jury with no meaningful basis to reject defendant's credibility or infer facts critical to the heat of passion theory.
Relying on People v. Hendrix (2022) 13 Cal.5th 933 (Hendrix), defendant argues an instructional error related to the central disputed issue, as here, poses considerable prejudicial effect. In that case, there was an undisputed error in a mistake-of-fact instruction, which incorrectly imposed an unwarranted reasonableness requirement onto the defendant's mistake-of-fact claim. (Id. at pp. 938-939.) That claim was central to the disputed issue at trial, and the competing assessments of the defendant's mental state (including whether his mistake of fact was reasonable or not) "occupied the vast majority of closing argument." (Id. at p. 945.) Moreover, in Hendrix, the jury deadlocked midway through deliberations and requested a transcript or readback of the defendant's jailhouse phone calls, suggesting concern with what those calls could reveal about the defendant's intentions related to the mistake-of-fact claim. (Id. at p. 947.)
Here, the failure to request a limiting instruction was not an analogous instructional error-it did not materially misdescribe a key feature of a primary defense theory, and neither counsel improperly urged the jury to accept as true any of the detectives' assertions made during the interrogation. Nor did the mixed verdicts in this case indicate a close question on heat of passion similar to the deadlocked jury and subsequent request for a readback of testimony relevant to the issue in Hendrix. The not guilty verdicts as to first degree murder and conspiracy to murder may reflect lenity or compromise. But they could also indicate the jury fully embraced and credited defendant's version of events, but still nonetheless concluded an ordinary person of average disposition would not act rashly or without due deliberation and reflection under the circumstances described by defendant. It is speculative to assume the mixed verdict reflects a close case on heat of passion.
The jury asked for a readback of a portion of defendant's interrogation, but that did not include the detectives' assertions about what Hernandez omitted from her version of events. Instead, it covered, among other things, the portion of defendant's interrogation where he told detectives there was no other way to stop Alsumiri than to stop him, and when asked what he meant by that, defendant responded, "I guess take his life ._" The jury also posed a question for the court about the heat of passion instruction: "do we apply what the average person would do in this situation or just any type of provocation? Or are we supposed to ask if the average person would use a gun in this situation?" This question did not indicate the jury was grappling with how to evaluate the instruction if it believed Alsumiri had not actually tried to strike Hernandez or had not struck her in the past. None of this together or separately indicates the jury viewed this to be a close case with respect to heat of passion.
This is especially so because defendant's acts of shooting and beating Alsumiri over the head in the car were not the only circumstances relevant to Alsumiri's death the jury considered. Defendant testified after this occurred Hernandez kept driving out of town and onto country roads, suggesting a cooling off period. Once outside of town and believing Alsumiri was still alive but incapacitated, defendant pulled Alsumiri out of the car and abandoned him alone in a field where he was unlikely to receive any aid-all but ensuring his death from the shooting. (See People v. Beltran (2013) 56 Cal.4th 935, 951 [sufficient time between provocation and killing for passion to subside and reason to return is not voluntary manslaughter].)
In sum, there is no reasonable probability the outcome would have been different had a limiting instruction been given. The detectives' limited assertions about what Hernandez omitted from her unspecified version of events was shown to be generally unreliable and did not provide any sound basis for the jury to draw conclusions or inferences about defendant's credibility or facts critical to the heat of passion defense; the jury had no basis to conclude Hernandez was more reliable or truthful than defendant, especially in light of defendant's uncontradicted trial testimony about the full scope of events. In closing arguments, the prosecutor did not reference the detectives' assertions or urge the jury to treat them as true, and they constituted only a small slice of the trial evidence. Moreover, there was no basis beyond mere speculation to conclude the jury viewed this as a close case with respect to heat of passion such that the detectives' assertions, limited and unreliable as they were, could have tipped the scale.
IV. Cumulative Error
Defendant claims the alleged errors at trial cumulatively made his trial unfair and deprived him of due process.
Under the cumulative error doctrine "'[a] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.'" (People v. Cunningham (2001) 25 Cal.4th 926, 1009.) The combined effects of multiple errors may indeed render a trial fundamentally unfair. (See People v. Cuccia (2002) 97 Cal.App.4th 785, 795 [several errors led to fundamentally unfair trial].)
Here, defendant has not established cumulative error because there are no errors to aggregate. We concluded defendant's trial counsel was not prejudicially ineffective in failing to request a limiting instruction, the prosecution did not elicit hearsay from the defense expert, and Evidence Code section 352 was not violated. As such, defendant's cumulative error claim necessarily fails. (People v. Capers (2019) 7 Cal.5th 989, 1017.)
Defendant's petition for writ of habeas corpus raising IAC claims is pending in case No. F087710. In light of the disposition of defendant's claims regarding hearsay, the confrontation clause, Evidence Code section 352, and IAC, his petition is moot and is denied by separate order.
V. No Dismissal of Firearm Enhancement Under Section 1385
Defendant argues the trial court misunderstood the scope of its sentencing discretion when it refused to dismiss the firearm enhancement under section 1385, subdivision (c).
A. Section 1385
Effective January 1, 2022, section 1385 specifies mitigating circumstances the trial court shall consider when deciding whether to strike enhancements from a defendant's sentence in the interest of justice. (§ 1385, subd. (c)(1), (2); see People v. Lipscomb (2022) 87 Cal.App.5th 9, 16.) Section 1385, subdivision (c)(1), now provides that "Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute." Section 1385, subdivision (c)(2), further provides, "In exercising discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety...."
As relevant here, section 1385, subdivision (c)(2), lists the following mitigating circumstances:
"(C) The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed.
"(D) The current offense is connected to mental illness.
"(E) The current offense is connected to prior victimization or childhood trauma." (§ 1385, subd. (c)(2)(C)-(E).)
Further, for the purposes of section 1385, subdivision (c)(2)(D) and (E), a court may conclude that a defendant's mental illness and/or childhood trauma was connected to the offense if, after reviewing any relevant and credible evidence, the court concludes that the defendant's mental illness and/or childhood trauma "substantially contributed to the defendant's involvement in the commission of the offense." (§ 1385, subd. (c)(5), (6).)
B. Additional Background
Defendant was sentenced in February 2023, more than a year after the amendments to section 1385 became effective pursuant to Senate Bill No. 81 (2021-2022 Reg. Sess.). In determining whether to dismiss the firearm enhancement under section 1385 as requested by the defense, the trial court referenced the amended statute and noted it "indicates that if certain mitigating factors are present, the Court is to weigh the circumstances greatly in favor of dismissal unless the enhancement is such that the Court finds dismissal would endanger public safety. Overall, of course, under the section, the Court is to dismiss further if it is in the interest of justice."
The court then provided the following reasoning:
"In balancing the interest of justice, the Court is permitted under governing case law to consider factors in aggravation and factors related to the offense. To be clear, the factors in aggravation cited by probation and the prosecutor are not being used to aggravate a triad term at issue in this case.
"In this case, as the Court and both sides have heard from the evidence, the defendant acquired a gun prior to the homicide. Prior to arriving at the victim's hotel, defendant hid in the hatchback of the vehicle. The defendant shot the victim multiple times. The defendant and codefendant drove the victim's body to another location and left the victim in a field most probably still alive. After the fact, the victim's clothes were discovered, and the vehicle cleaned, and the windshield repaired.
"In looking at those factors, the defendant cites mitigating factors under [section] 1385, that the application of an enhancement could result in a sentence of over 20 years. And the point of the prosecutor is that these are life terms, so that is of little weight. The Court will find that as a circumstance in mitigation because the enhancement does carry that much additional time.
"The defense also cites that the current offense is connected to mental illness. I am inclined to find little weight to that factor because, of course, the jury was given the opportunity to utilize defendant's mental state as presented by his witness in determining the appropriate degree of the crime, and the jury rejected reducing the crime to anything lesser than the second degree murder which fully required mental awareness and intent.
"The third factor cited under [section] 1385 is that the current offense is connected to prior victimization or childhood trauma. The Court finds little weight with that factor. The defense presented one incident involving defendant's life as a child. And while there is significance to that offense-or event, the Court finds that it occurred many, many years before this homicide in question, and this was not a triggering type of killing. This was a killing as just recited by the Court, that involved the defendant doing things beforehand and being in a position to deal with the victim such that it was not a spontaneous matter."
The court found that striking the enhancement would endanger public safety based on the nature of the offense here, and overall the interest of justice "is such that the enhancement should not be stricken." As a result, the court declined to strike the firearm enhancement.
C. Forfeiture
Defendant argues the trial court misunderstood the scope of its sentencing discretion under the statute when it indicated it was bound by what it perceived to be the jury's findings with respect to defendant's mental disorder and/or childhood trauma. Defendant contends the trial court should have exercised its discretion independent of the verdict regarding whether defendant's childhood trauma and mental illness (PTSD) were mitigating factors weighing greatly in favor of dismissing the firearm enhancement under section 1385, subdivision (c)(2)(D) and (E). The People maintain defendant's failure to object at sentencing forfeited these claims on appeal; further, the People argue that, if not forfeited, the claims are without merit.
Defendant's failure to object at the sentencing hearing forfeited his claim of error on appeal. "'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 ...."'" (People v. Scott (2015) 61 Cal.4th 363, 406.) "Strong policy reasons support this rule: 'It is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. [Citations.]' [Citation.] '"'"The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal."'" [Citation.]'" (People v. Stowell (2003) 31 Cal.4th 1107, 1114; accord, People v. Salazar (2016) 63 Cal.4th 214, 239-240; People v French (2008) 43 Cal.4th 36, 46.) "'[D]iscretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue.'" (In re Sheena K. (2007) 40 Cal.4th 875, 887-888, fn. 7.) Absent a change in the law that applies retroactively (e.g., People v. Stamps (2020) 9 Cal.5th 685, 698-699), or an extenuating circumstance (e.g., People v. Perez (2020) 9 Cal.5th 1, 7-8), neither of which is applicable here, the policy reasons underlying the forfeiture doctrine fully support its application where a defendant remains silent in the trial court when sentenced and then seeks to obtain appellate relief based on asserted sentencing errors under a change in the law that had long been in effect.
The sentencing hearing in this case was conducted in February 2023, more than a year after the applicable amendments to section 1385 became effective. The record reveals that during the hearing, the trial court informed the parties of its determination under section 1385, including its reasoning, which provided counsel with an adequate opportunity to object. At no time did defendant object to how the trial court weighed the mitigating circumstances or otherwise alert the court to the errors he now claims entitle him to remand for resentencing. Defendant's claim of error has been forfeited.
VI. Custody Credit Calculation
The parties agree defendant is entitled to 1,701 days of actual credit, but the court's oral pronouncement of judgment did not include any award of presentence custody credits. The parties further agree the judgment should be modified, and an amended abstract should be issued awarding defendant 1,701 days of actual custody credit. We concur.
Defendants are entitled to credit against their sentence for all actual days of custody. (People v. Buckhalter (2001) 26 Cal.4th 20, 30; §§ 2900, subd. (c), 2900.1, 2900.5, subd. (a).) "Calculation of custody credit begins on the day of arrest and continues through the day of sentencing." (People v. Rajanayagam (2012) 211 Cal.App.4th 42, 48.) Prisoners may also earn "conduct credit" pursuant to section 4019 for "work and good conduct during presentence incarceration." (People v. Duff (2010) 50 Cal.4th 787, 793.) However, section 2933.2 contains an express limitation that precludes individuals convicted of murder from earning any conduct credit, notwithstanding sections 2933, 2933.05, 2933.1 or 4019. (§ 2933.2, subds. (a), (c).)
Here, the probation report calculated actual presentence time served from arrest to sentencing as 1,701 days (June 14, 2018-Feb. 8, 2023). The report also indicated no conduct credit was awardable under section 2933.2. This was correct. However, at sentencing, the trial court awarded "zero presentence credits pursuant to ... Section 2933.2," but failed to award any actual custody credit. Accordingly, the abstract of judgment also fails to specify any custody credit.
"A sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered." (People v. Taylor (2004) 119 Cal.App.4th 628, 647, citing People v. Acosta (1996) 48 Cal.App.4th 411, 428, fn. 8.) Defendant is entitled to 1,701 days of presentence custody credit, and the trial court is directed to prepare a corrected abstract of judgment showing this award.
Finally, we note the abstract of judgment does not reflect the time imposed for the firearm enhancement, nor does it correctly identify the trial judge. These clerical issues shall be corrected as well. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
DISPOSITION
The judgment is modified to award defendant 1,701 days of presentence custody credit. (§ 2900.5, subd. (a).) The trial court is directed to prepare a corrected abstract of judgment consistent with this opinion and to forward a certified copy to the appropriate authorities. The judgment is otherwise affirmed.
WE CONCUR: FRANSON, Acting P. J. SNAUFFER, J.