Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 02-6371
NICHOLSON , J.
A jury convicted defendant Hoang Thanh Nguyen of second degree murder (Pen. Code, §§ 187, subd. (a), 189) and found not true allegations that he was armed with a firearm (§ 12022, subd. (a)(1)), personally used a firearm (§ 12022.53, subd. (b)), personally discharged a firearm (§ 12022.53, subd. (c)), and personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)). Defendant was sentenced to state prison for 15 years to life.
Further undesignated statutory references are to the Penal Code.
As best we understand him, defendant contends (1) evidence obtained in a warrant search should have been suppressed, (2) hearsay evidence was erroneously admitted at the preliminary hearing, (3) statements of a coparticipant were erroneously admitted at trial, (4) the trial court erred by modifying CALJIC No. 3.02, and (5) his trial was infected by judicial and prosecutorial misconduct. We affirm the judgment.
Rule 8.204(a)(1)(B) of the California Rules of Court provides that each appellate brief must “[s]tate each point under a separate heading or subheading summarizing the point . . . .” (Further references to “Rules” are to the California Rules of Court.) Defendant’s opening brief does not comply with this rule, in that its “ARGUMENT” portion contains no headings, no subheadings, and no summaries of the points being raised therein. Defendant’s improper briefing has compelled the Attorney General to identify, summarize, and address the points that he believes are being asserted in the opening brief. Because the Attorney General’s interpretation of the opening brief appears to be reasonable, we have adopted his interpretations as our own.
Rule 8.204(a)(1)(C) provides that each brief must “[s]upport any reference to a matter in the record by a citation to the record.” Defendant’s opening brief does not comply with this rule, in that his “STATEMENT OF FACTS” contains no citations to the record.
Defendant and Damon Shakibai grew and sold marijuana and later sold small quantities of methamphetamine. Shakibai later sold methamphetamine with John Rodricks and the victim, Chris Pearson.
In June 2002, Pearson, Rodricks and Shakibai planned to trade two ounces of methamphetamine to defendant in exchange for six or seven firearms. Defendant was to supply the guns for the exchange, Pearson was to supply the methamphetamine, and Rodricks and Shakibai were to distribute the received guns. Cal Racimo was to have provided the guns to defendant.
In early July 2002, Pearson obtained the methamphetamine, which was worth about $1,200 to $1,400 in Los Angeles and a lot more in Sacramento. The methamphetamine was given to defendant, but defendant did not provide the agreed upon guns. It was then arranged that defendant would drive to Los Angeles to deliver the guns. After a few days, Pearson began telephoning defendant about the undelivered guns. It appeared that defendant was stalling. Eight to 10 days after the methamphetamine had been delivered, defendant offered to return a portion of it. Pearson rejected the offer. He was angry and thought that defendant was trying to rip him off. In July, Pearson called defendant’s cell phone more than 50 times and called his residence 23 times.
Pearson told Shakibai that he was going to Sacramento to talk with defendant. Defendant told Shakibai that Pearson “needed to stop and to stop with the phone calls and to just mellow out and to knock it off, and that if he didn’t[, defendant] was going to deal with it.” Shakibai did not convey defendant’s statement to Pearson, but he did tell Pearson not to go to Sacramento to see defendant. When Pearson left for Sacramento, he showed Shakibai a semi-automatic pistol that he was carrying. After Pearson went to Sacramento, Shakibai never saw him again.
Defendant, Pearson, Rodricks and Racimo were all present at the Elk Grove residence of Charles Speaks and Carolyn Backues on August 3, 2002. They came and left together.
The next morning, Rodricks was sleeping in a spare bedroom at Speaks’s residence. Later that day, Racimo and defendant arrived at the residence. Racimo told Backues that Pearson “went fishing.” Backues heard Racimo and Rodricks conversing about blood on the door of a car in the driveway.
Rodricks returned from Sacramento driving Pearson’s car. There were blood stains on the back seat, trunk and front seat. It was Pearson’s blood. An expended bullet projectile was in the trunk or hatchback area of the car. Intact unfired cartridges were in the ashtray. The bullets were .357 Winchester, .380 automatic cartridge, and .22 long rifle cartridge. Pearson’s and Rodricks’s fingerprints were located in the car. Rodricks told Shakibai that he saw Pearson being murdered.
On August 24, 2002, the Yolo County Sheriff’s Department found the body of Pearson in a slough in Clarksburg. Attached to the body was a backpack containing concrete. The backpack with concrete weighed 64 pounds. The concrete alone weighed 56.4 pounds.
Pearson had been shot five times. The cause of death was four gunshot wounds to the chest; a fifth shot to the buttocks did not contribute to the death. Four of the bullets removed from Pearson were small caliber with a copper wash that is normally associated with .22 caliber. The four bullets were .22 long rifle or .22 long caliber projectiles. A medium caliber bullet was removed from Pearson’s buttocks area. That projectile was consistent with a .28 or a .9-millimeter. A date of death of August 3, 2002, is consistent with Pearson’s cell phone records and with the condition of the body at the autopsy.
Defendant wore white skateboarding shoes. Bloodstained shoes containing Pearson’s DNA were located at defendant’s parents’ home in Sacramento. Defendant’s DNA types were also present on the shoes. The shoes were size 10½. Defendant’s sister testified that she had brought defendant’s shoes to his parents’ house. At trial she identified a pair of shoes as those worn by defendant.
A search of defendant’s parents’ house revealed a nylon holster in defendant’s bedroom. No gun was in the holster. A backpack similar to the one found on Pearson was in a closet in defendant’s room. Inside the backpack were earplugs that typically are worn for shooting at firing ranges. Also in the backpack was a single ankle sock, which was significant because a single ankle sock was on Pearson’s body when it was found. Bags of concrete were outside the residence. One of the bags was open. A 60-pound bag of concrete was taken as evidence. When mixed with water and dried, the contents of a 60-pound bag produced approximately 64 pounds of concrete.
Bags of concrete were observed at the residence of Speaks and Backues.
A .357 magnum bullet, eight .22 caliber bullets, a different brand of .22 caliber bullets, and a .38 Special bullet were found at defendant’s parents’ residence. Also found were a magazine clip for a long rifle and three boxes of classic ear pieces, which are used on a shooting range.
DISCUSSION
I
Defendant contends evidence of the white tennis shoes should have been suppressed because the search warrant for the residence where they were found contained hearsay information from codefendant Rodricks, and without that information there was insufficient probable cause. He has forfeited the claim by failing to move to suppress the evidence in the trial court. (§ 1538.5, subd. (m); People v. Garrido (2005) 127 Cal.App.4th 359, 364; People v. Hunter (2002) 100 Cal.App.4th 37, 41.)
In any event, contrary to defendant’s argument, the hearsay statements of Rodricks could be used in an application for a search warrant. “The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” (Illinois v. Gates (1983) 462 U.S. 213, 238 [76 L.Ed.2d 527, 548], italics added.)
In sum, defendant has not preserved this issue for appeal. Moreover, his argument has no merit.
II
Defendant contends Rodricks’s hearsay statements were improperly introduced over his objection at the preliminary hearing. We disagree.
Defendant’s failure to move to set aside the information under section 995 bars him from raising on appeal his challenge to the conduct of the preliminary hearing. (§ 996; People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529; see People v. Phillips (1985) 41 Cal.3d 29, 44 (lead opn. of Reynoso, J.).)
In any event, section 872, subdivision (b), allows a finding of probable cause to be based in whole or in part upon the sworn testimony of a law enforcement officer relating the out-of-court statements of hearsay declarants. (People v. Miranda (2000) 23 Cal.4th 340, 348.) Thus, Rodricks’s statements were properly introduced through the testimony of an officer, and defendant’s trial counsel’s failure to move to set aside the information could not have been prejudicial.
III
Defendant contends statements of Rodricks were admitted at trial in violation of his right to confront witnesses as defined in Bruton, Aranda, and Crawford. (Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476]; People v. Aranda (1965) 63 Cal.2d 518; Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177].) He has forfeited the issue by failing to raise a confrontation clause objection at trial. (Evid. Code, § 353; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19.)
In any event, admission of the evidence could not have been prejudicial. The disputed evidence is as follows:
“Q [BY THE PROSECUTOR:] So at some point in your interview Mr. Rodricks’ story changes?
“A [BY DETECTIVE RICH JOHNSON:] Yes it did. [¶] . . . [¶]
“Q Did Mr. Rodricks provide you with any names of people that were with Mr. Rodricks surrounding the time of Christopher Pearson’s death?
“A Yes he did.
“Q What names did he provide you?
“A Cal and Moochie. [¶] . . . [¶]
“Q And so at the conclusion of your September 18th, 2002 meeting with John Rodricks, you got the name Moochie, and Cal, correct?
“A Yes.”
Moochie is defendant’s nickname.
Thus, the gist of the disputed testimony is that defendant was with Rodricks around the time of Pearson’s death. But this evidence duplicated the testimony of other witnesses, including defendant himself.
Thus, Speaks and Backues both testified that defendant, Racimo, and Rodricks were together around the time of Pearson’s death. Moreover, defendant testified that on the second day at Backues’s house, he saw Rodricks and Racimo, and he knew of Pearson’s death. Under these circumstances, the admission of Detective Johnson’s testimony without affording defendant an opportunity to confront and cross-examine Rodricks pursuant to Crawford could not have been prejudicial. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711].)
IV
Defendant contends the trial court edited CALJIC No. 3.02 in a manner that distorted and skewed what are considered “natural and probable consequences,” resulting in “extreme prejudicial judicial error.” He argues that the trial court unilaterally chose to utilize a “subjective” rather than an “objective” standard in its application of CALJIC No. 3.02. We disagree.
“The determination whether a particular criminal act was a natural and probable consequence of another criminal act aided and abetted by a defendant requires application of an objective rather than subjective test. [Citations.] This does not mean that the issue is to be considered in the abstract as a question of law. [Citation.] Rather, the issue is a factual question to be resolved by the jury in light of all of the circumstances surrounding the incident. [Citations.] Consequently, the issue does not turn on the defendant’s subjective state of mind, but depends upon whether, under all of the circumstances presented, a reasonable person in the defendant’s position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant. [Citations.]” (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.)
The trial court instructed the jury as set forth below. Quoting the pattern instruction, the court told the jury that, “In determining whether a consequence is natural and probable, you must apply an objective test based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected likely to occur. The issue is to be decided in light of all the circumstances surrounding the incidents.” (Italics added.)
CALJIC No. 3.02 told the jury: “One who aids and abets another in the commission of a crime is not only guilty of that crime, but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crime originally aided and abetted. “In order to find the defendant guilty of murder as charged in Count 1 as an aider and abettor, you must be satisfied beyond a reasonable doubt, that, one, the crime of the sale of methamphetamine was committed; two, the defendant aided and abetted that crime; three, that a coprincipal in that crime committed the crime of murder; and, four, that the crime of murder was a natural and probable consequence of the commission of the crime of the sale of methamphetamine. “In determining whether a consequence is natural and probable, you must apply an objective test based not on what the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected likely to occur. The issue is to be decided in light of all the circumstances surrounding the incidents. “A natural consequence is one which is within the normal range of outcomes that may reasonably -- may be reasonably expected to occur if nothing unusual has intervened. Probable means likely to happen. “You are not required to unanimously agree as to which originally contemplated crime the defendant aided and abetted, so long as you’re satisfied beyond a reasonable doubt and unanimously agree that the defendant aided and abetted the commission of an identified and defined target crime and that the crime of the sale of methamphetamine was a natural and probable consequence of the commission -- excuse me, the crime of murder was a natural and probable consequence of the crime of the sale of methamphetamine.”
Earlier, in its discussion of CALJIC No. 3.02 at an instructions conference, the trial court had stated: “So it seems to me that the question that I have to determine is whether in this case I simply look to the target offense, possession of methamphetamine, or whether I look to all of the other facts that were known to the defendant, or could reasonably have been known to the defendant, as of August 3rd, 2002. [¶] If we look to simply the objective facts, one cannot say that it is probable that someone will be killed while methamphetamine is being sold. Clearly, people are killed around the trafficking of drugs, but one can’t say it is probable. On the other hand, if one uses a subjective standard and one looks at the specific facts of this case, then we have a lot more information. Because, obviously, we have information that most of the principals in the target offense are using methamphetamine on or around August the 3rd, 2002, that one or more of the principals is armed with a firearm on or around August 3rd, 2002, that the defendant -- excuse me, that the decedent is shot to death, and that the defendant knew that at least one of the principals was armed with a firearm.” (Italics added.)
In this passage, the trial court used the terms, “objective facts” and “subjective standard,” not as CALJIC No. 3.02 uses “objective test” to differentiate between “what the defendant actually intended” and “what a person of reasonable and ordinary prudence would have expected likely to occur,” but in order to differentiate between the bare fact of selling methamphetamine and the “specific facts of this case.” (Italics added.) In considering that distinction, the trial court stated that “applying the subjective standard makes more legal sense than applying the abstract objective standard.” Although its use of “objective” and “subjective” in this context may have caused some confusion, its conclusion was correct. (People v. Nguyen, supra, 21 Cal.App.4th at p. 531.) Indeed, CALJIC No. 3.02 instructed the jury that the issue of whether a consequence is natural and probable “is to be decided in light of all the circumstances surrounding the incidents.” That is just what the trial court had meant in its remarks in chambers about a “subjective standard.” There was no improper editing of CALJIC No. 3.02. There was no error.
V
In his “STATEMENT OF THE CASE,” defendant contends “prevalent prejudice infected the courtroom” and prevented him from being fairly tried. He claims the trial judge “continuously demonstrated” an “insidious bias” against him and in favor of the prosecution. He also claims the prosecution “overextended the bounds of professionalism” to such an extent that his constitutional rights were “callously disregarded.”
Defendant has not supported his contentions with any citations to the appellate record. (Rule 8.204(a)(1)(C); fn. 3, ante.) This court is not required to scrutinize the record unassisted for the passages on which defendant relies. (People v. DeSantis (1992) 2 Cal.4th 1198, 1227-1228.)
In any event, it is defendant’s burden to demonstrate error on appeal. (People v. Brown (1988) 204 Cal.App.3d 1444, 1451.) In order to prove judicial or prosecutorial misconduct, defendant must show that he objected to the claimed misconduct or that he was excused from doing so. (People v. Boyette (2002) 29 Cal.4th 381, 432.) Defendant has not even attempted to make the requisite showing. We find no error.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND , P.J., DAVIS , J.