Opinion
A112633 A117067
9-17-2007
THE PEOPLE, Plaintiff and Respondent, v. ROBERT OLDHAM, JR., Defendant and Appellant. In re ROBERT OLDHAM, JR., on Habeas Corpus.
NOT TO BE PUBLISHED
Defendant Robert Oldham, Jr. timely appeals from a December 1, 2005 judgment sentencing him to fifty years to life in prison. On September 30, 2005, a jury found defendant guilty of first degree murder and found true an allegation he had intentionally and personally discharged a firearm, proximately causing the death of Andre Jackson. (Pen. Code, §§ 187, 189 [first-degree murder], 12022.53, subd. (d) [personal and intentional use of firearm causing death].) The jury also found defendant guilty of possession of a firearm by a felon. (Pen. Code, § 12021, subd. (a)(1).)
Defendant makes the following arguments on appeal: (1) one of the theories of premeditation and deliberation which the prosecutor argued to the jury was legally incorrect and the trial court erred in not instructing the jury accordingly; (2) there was insufficient evidence to prove premeditation and deliberation; (3) the trial court erred in denying defendants motion to suppress his statements to police; and (4) the trial court erred in permitting the courtroom bailiff to testify as a prosecution witness.
Defendant has also filed a petition for a writ of habeas corpus challenging his conviction, which we have consolidated with this appeal at his request. In his habeas corpus petition, defendant argues he received ineffective assistance of counsel (IAC) at trial because defense counsel improperly failed to object to testimony and to questioning by the prosecutor regarding three of defendants prior, uncharged assaults. Defendant also argues the cumulative impact of his defense counsels deficient performance and the trial courts errors mandates reversal.
We conclude that the trial court did not commit any reversible error and that defendant has not established his IAC claim. We thus affirm.
FACTUAL BACKGROUND
A. The Peoples Case in Chief.
Jackson was 33 years old when he died on December 4, 2002. Before his death, Jackson had been in a homosexual relationship with Derrick Miller, who was 35 years old at the time of trial in 2005.
In early December 2002, Jackson and Miller had from time-to-time been living together in the back bedroom of Berna Blakes apartment. Her apartment was on the third and top floor of an apartment building in Oakland located on the corner of 25th and Telegraph Avenues. Berna Blake had known Jackson for about three years.
Another homosexual man, Parish Blake, was also staying at Berna Blakes apartment in December 2002. Parish Blake had often seen defendant hanging out near Berna Blakes apartment. He knew defendant by sight, and he also knew defendants voice. He testified that defendant had harassed him because of his sexual orientation, which on one occasion prompted him to tussle with defendant. Parish had also seen defendant and five other people jump Jackson about five days before Jacksons death. Defendant hit and stomped on Jackson. The attack lasted four or five minutes.
Parish Blake and Berna Blake are not related.
Miller testified that he had seen defendant near Berna Blakes apartment nearly every day. He, too, knew defendants voice. Defendant and his frequent companion, Donte Lewis, often verbally harassed Miller and Jackson about their homosexuality. For example, about two or three weeks before Jacksons death, Miller saw defendant and Lewis come toward Jackson after he had left Berna Blakes apartment. Miller ran over to Jackson and urged him to continue on his way, but defendant and Lewis started to mock Miller, repeating whatever he said to Jackson. One of them asked Jackson, "Is that your bitch?" Miller testified that he feared for Jacksons safety because of the repeated altercations Jackson had with defendant and Lewis. Miller thought defendant and Lewis sometimes waited for Jackson to come out of the apartment just to antagonize Jackson. Miller testified he had once seen defendant with a gun in his waistband. Another time he saw defendant running down the street with a gun in his hand.
Donte Lewis is also identified in the record as "Tay" and "Lil Two," although Lewis testified he did not know anyone named "Little Two."
Berna Blake often saw defendant near her apartment, at times daily. A couple of weeks before Jacksons death, Jackson had been upset and was crying after a conversation with defendant. Jackson told Berna Blake that he was tired of going out because every time Jackson went out, defendant and Lewis had something to say to him.
Three times during the year before Jacksons death, Berna Blake had seen defendant with a small gun. In one incident, she saw defendant pull a gun on someone behind her apartment building; in another, she saw defendant shooting at someone he did not want in the area.
At about 6:00 p.m. on December 4, 2002, Miller returned home from his job as a landscape gardener. He was wearing the kneepads that he wore for his work. Defendant was standing by the front door of the apartment building with at least five other people. As Miller passed defendant, defendant called out, in a sarcastic tone, "Look at that nigga. He got on kneepads." Miller sarcastically replied, "Its called a job, something you know nothing about." Defendants response was, "What you say? Ill beat your ass." Miller laughed and kept walking to Berna Blakes apartment because he did not think defendant could "whoop" him.
Defendant, a female friend of his, and another man followed Miller up to Berna Blakes apartment. Berna Blake stopped them at the door and told them to leave. Defendant told her that Miller was not going to disrespect him. Defendant tried to push past Berna Blake and reach into the apartment to hit Miller, but she blocked him with a bar. At this point, Jackson started saying to Berna Blake that she should let defendant and Miller fight. Miller started swinging toward defendant, and Berna moved out of the way because she "was in the middle of the swinging . . . [and she] didnt want to get hit." Miller started fighting with defendant in the hallway.
No weapons were used during the fight. While Jackson, Berna Blake, and at least two other people looked on, Miller grabbed defendants dreadlocks and banged his head against the floor, getting the best of defendant. Defendant could not fight back because, according to Miller, "he was whooped." Miller got up off of him. Jackson said, "Thats enough," and told Miller to go inside Berna Blakes apartment to wash the blood off his hands. Defendant got up, holding his head. Defendant wanted to keep fighting, but Jackson told Miller, "No, go in there and wash your hands. You already whooped him. You have nothing to prove to nobody." Defendant and the others left.
After the fight, Millers hand was bleeding, so he went into the bathroom with Jackson to wash off the blood. Berna Blake went to a nearby store to get some bandages for Millers hand. Before she left, she told Miller and Jackson not to let anyone into the apartment.
Lewis, a friend of defendants, testified that he saw defendant leave the apartment building after his fight with Miller. Oakland Police Sergeant Mark Dunakin later testified that when he interviewed Lewis, Lewis said that defendant had told Lewis that "the faggot dude grabbed my hair, dragged me, and had me on the ground." Lewis could not recall telling this to the police.
After defendant left the apartment building, Lewis saw him go toward a nearby red building and return holding a small pistol. Lewis had seen defendant with a gun once before. Lewis later saw defendant go back into the apartment building with a "chrome .25" in his hand. After Lewis heard gunshots, he saw defendant come out of the apartment building. Lewis denied being present when these gunshots were fired.
Sergeant Dunakin testified that Lewis had told him that "two days after Thanksgiving, [defendant] told him that he had a deuce-five, which is a .25-caliber pistol." Lewis did not remember telling this to the police.
Miller testified that five or ten minutes after Berna Blake had left the apartment to buy bandages, he heard a knock at the door. Jackson went to answer the door and Miller heard him start talking to defendant. Miller was still in the bathroom at the time, washing the blood off his hands. Parish Blake, who was in the kitchen, also heard Jackson talking to defendant. Defendant calmed himself down, asked to talk to Miller, and told Jackson that he (defendant) was "not going to fight" Miller. But Jackson refused to let defendant inside the apartment. While talking to defendant, Jacksons tone of voice was "arrogant and gloating," and he spoke in a feminine voice.
Miller heard Jackson tell defendant that Miller was in the bathroom. Defendant told Jackson to tell Miller that Miller was "a mark" and that defendant was going to "get him." Then Miller heard Lewis say to defendant, "No, Rob." Defendant responded, "Im not going to do nothing. Dre [Jackson] is my partner." Miller next heard "scuffling" sounds. Parish Blake, by then in the bedroom, heard the front door bang open. Miller and Parish Blake then heard at least four gunshots in rapid succession and running footsteps.
Parish Blake saw Jackson run down the apartments hallway as the shots were fired. He went to the door and saw defendant holding a gun, which defendant then lowered to his side. Parish Blake then heard Lewis say, "Come on, lets go." He saw defendant and Lewis go down the stairs. Parish Blake did not see a gun in Lewiss hand.
Meanwhile, Miller had opened the bathroom door to see Jackson running down the interior hallway. Jackson fell to the floor, face up. Jackson was gasping and trying to breathe. Miller called 911 and reported that defendant had shot Jackson. Parish Blake also called 911, but he refused to tell the 911 operator who had shot Jackson for fear of being known as a snitch.
About ten minutes after Berna Blake had left her apartment to go to the store, she saw defendant and Lewis get into a car driven by someone Berna Blake knew as Latoya. They seemed to be in a hurry.
At about 6:00 p.m. that day, Oakland Police Officer Nicole Elder was dispatched to the scene of the shooting. She discovered Jacksons body. Miller gave Elder a description of the assailant, which Elder recognized as defendant, as she had contacted defendant about 20 to 30 times before in that area.
On December 5, 2002, Dr. Thomas Rogers performed an autopsy on Jacksons body. He concluded Jackson died of multiple gunshot wounds. Dr. Rogers recovered four bullets and a bullet fragment during the autopsy. He found seven entrance wounds on Jacksons body. However, one of the bullets may have caused two entrance wounds, suggesting that six bullets were fired at Jackson.
A paramedic who examined Jackson shortly after the shooting found six entrance wounds.
The murder weapon was never recovered. An evidence technician found four cartridge casings in front of the door to Berna Blakes apartment. Berna Blake found a fifth cartridge casing in the carpet of her apartments hallway, behind the door.
According to firearms expert Richard Schoor, all five of the cartridge casings recovered were .25 auto caliber casings fired from a single weapon. Schoor received five distinct cartridge casings and five distinct bullets and bullet fragments from the police departments property room. They were all .25 auto caliber. Schoor opined that one bullet could be missing and one cartridge casing could be missing based on similarities and differences among the bullets and casings. Thus, the evidence suggested that a total of six bullets could have been fired during the shooting.
Defendant was arrested on December 23, 2002 one block north of the apartment building where Jackson was killed. As officers entered an apartment complex to execute a narcotics-related search warrant, defendant exited the side of the building. At the time, there was an outstanding warrant for defendants arrest for murder. Recognizing defendant, one of the officers put defendant on the ground at gunpoint and then transported him to the Oakland Police Departments homicide section.
There, Oakland Police Sergeants Derwin Longmire and Mark Dunakin (the investigating officers) interviewed defendant after Mirandizing him and after he waived his rights. Defendant denied knowing Lewis, denied ever being at Berna Blakes apartment, and denied knowing any of the occupants of that apartment. During a break in the questioning, when defendant was left alone in the interview room, defendant tied his shoestrings together, tied one end to the doorknob and looped the other end of the shoestrings around his neck in an attempt to hang himself. Defendant was taken to a hospital, where he was treated and then cleared for release. He was then transported to a psychiatric hospital for psychiatric evaluation. The staff at the psychiatric hospital certified that defendant was fit for incarceration.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
On December 24, 2002, defendant was returned to the homicide division. The investigating officers recommenced interviewing defendant, readvising him of his Miranda rights and again obtaining his waiver of those rights. There was nothing remarkable about defendants responses to questioning or about his behavior or appearance at this time.
Defendant then told the officers that he was familiar with the area where the shooting occurred, and knew the people in that building. When asked if he was sorry for what had happened, he nodded his head yes. Crying, he said he wished he could bring back the man who had lost his life. Defendant explained that he had blacked out. He said he did not have the gun and he was not there when the killing occurred. After a bathroom break, defendant asked for a pen and wrote that he knew who was involved. He wrote that the word on the block was that Lil Two was up there, and he added, "I never went to that location." Sergeant Dunakin thought "Lil Two" was a reference to Donte Lewis.
During a subsequent tape-recorded statement, defendant explained he had put the shoestring around his neck and the door because he just wanted to escape. He admitted that he had grown up a few blocks from the scene of the shooting. He said he believed the shooting was an accident, but he had heard that "Two" was involved, whom he identified as Lewis.
Defendant said that Lewis had bragged in the past that he had ready access to guns. Defendant understood that "Two" went and got a gun after the fight, came back and shot someone. Defendant said he had been in San Francisco with his girlfriend at the time of the shooting. Again, defendant denied knowing Miller, Jackson, Parish Blake, or Berna Blake, and denied ever having been on the floor of the building where the shooting took place.
After another break from questioning, defendant admitted being present at the time of the shooting. In a second tape recording, defendant said that he had seen Lewis fighting someone near Berna Blakes apartment. Defendant said he helped break up the fight. Defendant said he did not think the man whom Lewis fought was gay, but he talked "like it." After the fight, Lewis went to a blue building and got a gun. At Lewiss request, defendant went with Lewis to the top floor of a building where Lewis told defendant, "Watch my back" before knocking on a door. When the door opened, Lewis put his foot inside. Lewis said to the person who had opened the door, "Come outside. Tell your friend to come outside." Defendant said that defendant was supposed to fight the man who had come to the door, and Lewis was supposed to fight that mans friend. Then, defendant heard Lewis fire a shot. Defendant immediately ran away.
The investigating officers stopped taping the interview to take a break, but defendant asked them not to leave so he could speak to the officers some more. Defendant told them, "I didnt mean to do it. It just started going off. I cant remember what kind it was." Defendant whispered to Longmire that he did not know where the gun was. Crying, he said he accidentally shot four times. In a third tape recording, defendant stated that when Lewis was trying to get someone to come out of the apartment, defendant heard a pop and saw Lewis run toward him. Simultaneously, defendant ran toward Lewis. Lewis dropped the gun and defendant picked it up. Defendant was not aiming at anything, but the gun "kept bouncing in [his] hand," and went off about four times. Defendant did not see anybody; he was just looking at the gun and trying not to get hit. Defendant was moving while the gun was going off. He gave the gun to Lewis and left.
Defendant explained that he had at first told the officers that he had no first-hand knowledge of the shooting because it was not "easy to replay some stuff like that." It was "difficult to talk about," because "look what happened," "[s]omeone died for nothing." Defendant also said the investigating officers had not been abusive to him and that neither of them had hit defendant. Defendant explained he had tried to hang himself, not because he was trying to escape the reality of the shooting or because he was afraid, but because he was thinking about not being able to say good-bye to his mother and his girlfriend, not being able to see anybody again, and not being able to say he was sorry.
B. The Defense Case in Chief.
Dr. John Podboy, a clinical and forensic psychologist, testified that based on the records he had reviewed, defendants mental state at the times he was interrogated by the investigating officers was "extremely depressed and suicidal." Podboy opined that an individual who is depressed and is contemplating suicide would be "highly suggestible" and "preoccupied." The reliability of statements made by someone in such a mental state would be "very questionable" and would "not necessarily be reliable." If such a person had unsuccessfully attempted suicide, and then, twelve hours later, that person were interacting with others, that person "would be more likely to be agreeable" and to "placate." Podboy explained that when a person is "cleared for custody," as defendant was cleared by the psychiatric hospital, that certification means that the person can be returned to custody and the interrogation process can resume. However, Podboy said, the person could still be suffering from a mental defect or illness. Podboy acknowledged, however, that the psychiatric hospital had done more than simply find defendant "cleared for custody." The staff there concluded defendants perception and his cognitive functioning were within normal limits, and concluded he did not suffer from "a thought disorder."
Podboy acknowledged that there are inherent limitations in attempting to make after-the-fact evaluations. Podboy met with defendant once, for less than an hour, on January 28, 2003 at Santa Rita jail. Defendant refused to meet with Podboy after that date. Based on his Santa Rita interview with defendant, as well as the other records he had reviewed, Podboy opined that at the time of the Santa Rita interview defendant suffered from a "major form of mental illness" and was psychotic. However, Podboy was not certain whether defendant was psychotic at the time the investigating officers interviewed him. Podboy said defendant did not sound psychotic during his taped interviews with the investigating officers. Podboy did not test defendant to see if he was malingering because he believed defendant was untestable in January of 2003.
Podboy agreed that somebody who was being questioned by the police about a murder that he had committed would feel enormous external pressure, and under certain circumstances might contemplate taking his own life to escape the reality of the situation. Podboy agreed that if a person committed a murder, then fled and avoided capture for a three-week period, and when interviewed by police, lied about where he was on the date of the murder, and as the interview progressed changed his story to become closer to the truth without accepting full responsibility for the killing, such conduct could be consistent with an unimpaired mind. However, this conduct could also be consistent with mental illness. Podboy testified that based on what he had reviewed, neither drugs nor alcohol had any effect on the statements defendant made to the investigating officers.
Defendant then testified on his own behalf. He said that shortly after 5:00 p.m. on December 4, 2002, he went to Oakland to visit a former foster parent. There, near the scene of the shooting, he saw Lewis arguing with Miller, whom defendant said he did not know at the time. Miller was accusing Lewis of having been involved in robbing Millers friend. As they argued, defendant stepped between Miller and Lewis and pushed them back to separate them. Miller grabbed defendant, and defendant grabbed back. They both fell to the ground. Then a man and a woman came and separated Miller and defendant. Miller said something, and Lewis said, "All right, Im going to get Q." Defendant harbored no ill feelings toward Miller because it was defendants own fault for having interfered in something that was not his business. Defendant continued on his way to his former foster parents home.
On December 23, 2002, after returning to Oakland to visit his former foster parent, defendant was arrested. Defendant also saw the police bring Lewis out of the building and put him in a car.
After the police put him in an interrogation room, defendant agreed to talk to the investigating officers. They told defendant that a number of people had implicated him in a shooting and asked whether he knew Lewis. They played a tape recording in which Lewis said that he saw defendant go to a red building and come back with a chrome .25 pistol. They told defendant they had taped statements and photo lineups from several people who had accused defendant, including Miller and Parish Blake. They also told defendant that if they took the tapes to the district attorney, defendant would go to prison and would not be eligible for parole until he was 60. They told defendant that in prison, larger, stronger prisoners would assault and rape him. However, they said they had helped someone from his old neighborhood, Spud, get his murder charges dropped and said they could help defendant too.
Defendant testified the investigating officers suggested to him a scenario where Lewis fired the shots and then turned the gun on defendant because defendant was a witness. According to their scenario, Lewis then dropped the gun, defendant recovered it, and by doing so, defendant prevented Lewis from taking another innocent life. They also suggested that when defendant picked up the gun, it accidentally went off a few times, "justify[ing] the shots," and then Lewis wrestled the gun away from defendant and ran away. If defendant would adopt this scenario, they said, they could get defendants case dropped. Otherwise, they would take the tapes they had obtained to the district attorney. They left defendant alone to think about their proposal.
According to defendant, Longmire returned to the interrogation room a few minutes later, put on a pair of gloves, and asked, "So, you dont know. You still dont know nothing, huh?" Defendant shook his head no. Longmire said, "You think you[`re] cool, huh?" Longmire then punched defendant in the head and he fell to the floor. Everything went blank. When defendant woke up, Longmire said, "That should refresh your memory."
Seconds later, Dunakin came into the room to ask if defendant was alright. Defendant said he needed some ice because he had been hit in the head. Dunakin said he would get some. Defendant said he then started bleeding so profusely that he began to get dizzy, to panic, and finally to black out. Defendant testified that he did not remember any suicide attempt. After awhile, paramedics arrived and took him to a hospital.
When defendant was brought back to the Oakland Police Department, the investigating officers allowed defendant to see his girlfriend Keisha, but they would not allow him to talk to her until he gave them the statement they wanted. They told him that he could walk out with his girlfriend right then if he would place Lewis at the scene of the shooting, and they again went over the story they wanted defendant to parrot. Defendant gave another taped statement, but Longmire and Dunakin said it was not enough They told defendant, "Give us Tay." Defendant started to cry. The officers told him his girlfriend was waiting outside, and took him to where he could see her, but not speak to her. Finally, when asked whether he was ready to go home, defendant said yes. Defendant then gave a taped statement consistent with what the officers had suggested.
Defendant testified he did not shoot Jackson and denied ever even holding a firearm of any kind. He denied knowing Miller, Parish Blake, or Berna Blake at all. He said the first time he met Miller was when he tried to break up the altercation between Miller and Lewis on the street. He also denied meeting Jackson before the day of the shooting and denied being on the third floor of Berna Blakes apartment building when the shooting occurred.
C. The Peoples Case in Rebuttal.
On rebuttal, Sergeant Longmire denied ever punching defendant and Sergeant Dunakin denied ever seeing Longmire strike defendant. Dunakin also denied ever telling defendant that he was looking at many years in prison and denied ever asking defendant about the prospect of being raped in prison. Dunakin denied ever urging defendant to incriminate Lewis, explaining he had already obtained a warrant for defendants arrest whereas he considered Lewis only to be a witness in the case.
DISCUSSION
I. Prosecutors Argument Regarding Premeditation and Deliberation.
a. Procedural Background
The trial court instructed the jury on deliberate and premeditated murder with CALJIC No. 8.20, an instruction which both the prosecutor and defense counsel had requested. The trial court did not instruct on transferred intent. (See CALJIC No. 8.65 [transferred intent].) Neither the prosecutor nor defense counsel had requested that instruction. There were no objections to the inclusion of CALJIC No. 8.20 or to the omission of any related instructions.
CALJIC No. 8.20 provides, in relevant part: "All murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree. . . . [¶] The word "deliberate" means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. The word "premeditated" means considered beforehand. [¶] If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree. [¶] The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated. The time will vary with different individuals and under varying circumstances. [¶] The true test is not the duration of time, but rather the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it includes an intent to kill, is not deliberation and premeditation as will fix an unlawful killing as murder of the first degree. [¶] To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, [he] decides to and does kill." (CALJIC No. 8.20 (Fall 2006 ed.).)
During his closing argument, the prosecutor discussed CALJI No. 8.20. While doing so, he did not argue that if the jury found that defendant had premeditated and deliberated killing Miller, then the jury need not make an independent finding that defendant had premeditated and deliberated killing the actual victim, Jackson. Instead, he emphasized that the premeditation and deliberation required for first degree murder may happen during a very short period of time, as he argued it did in this case.
The prosecutor acknowledged the jury might be asking itself, "If the defendant was in the fight with Derrick [Miller], as the evidence has shown, why did Dre [Jackson] end up getting killed? Why kill Dre?" The prosecutor argued defendant had at least two motives to kill Jackson: retribution and homophobia. He pointed to evidence that defendant wanted retribution against Miller after he lost a fight with Miller. When defendant returned with a gun to confront Miller, Jackson refused to allow defendant inside the apartment and further angered defendant by talking to defendant in "a sarcastic, feminine tone of voice." The prosecutor argued, "What better way to get at someone who had just beaten you up in a fight than to kill the person that he loves." The prosecutor also emphasized that defendant had a history of "gay bashing."
The prosecutor argued the defendant went through the requisite thought process to satisfy the premeditation and deliberation elements set forth in CALJIC No. 8.20. He noted defendant had a calm tone of voice when he spoke to Jackson at the door and thus was not "acting under a sudden quarrel or heat of passion." Even though Lewis told defendant, "No, Rob," he responded with "Dre is my partner" just before shooting Jackson, indicating defendant was trying to disarm his intended victim. Finally, the prosecutor argued that defendants demeanor while on the witness stand showed he was a "calm, cool and calculating" person.
When defense counsel argued to the jury the People had not proven first degree murder, he said, "[Y]ou cant . . . be convicted of premeditated murder unless you kill the person you planned to kill." He pointed out that although defendant had been angry with Miller and there was evidence defendant took steps to commit a crime against him, there was no evidence defendant premeditated killing Jackson. Defense counsel read extensively from CALJIC No. 8.20, and noted there had not been any fight between defendant and Jackson which precipitated the shooting. Defense counsel argued defendants comment, "Dre is my partner," indicated defendant had no reason to shoot Jackson. Instead, defense counsel characterized the shooting as "a textbook example of a rash impulse killing, second degree at the very worst." He argued that when Jackson spoke to defendant in an effeminate voice, Jackson was suggesting that defendant was a homosexual, which insulted defendant and meant that, if he shot Jackson, he acted under the heat of passion. Defense counsel also argued that the fact that the shots were fired in rapid succession suggested "not premeditation, not deliberation, not a rational process, but an emotional reaction."
During his rebuttal argument, the prosecutor addressed defense counsels argument that "the defendant, if he intended to kill anyone, intended to kill Derrick [Miller]; therefore, he did not premeditate and deliberate the killing of Dre [Jackson]. [¶] And I was asking myself, in what parallel universe is it less wrongful to kill a man that had done nothing to harm you because his lover had gotten into a fight? I mean in what parallel universe is it less wrongful to calmly walk up to a man who had done nothing to harm you and shoot him in the back?" The prosecutor further argued "that the defendants heart was set on killing somebody that day. Thats why he brought the gun to the apartment. And when he decided that the victim would be Dre [Jackson] and not Derrick [Miller], thats when he made the decision to commit first-degree murder right there at that moment in that beat of time. And thats all it takes for a first-degree murder. Thats all it takes."
While the jury was deliberating, it requested a definition of premeditation that would clarify or simplify the term, and asked for simple examples, "especially time/determination." The trial court responded with a supplemental instruction based on the then-proposed CALCRIM instruction on deliberation and premeditation. (See CALCRIM 521 (Fall 2006 ed.) ["Murder: Degrees"].)
The trial court instructed the jury as follows: "The defendant is guilty of first degree murder if the People have proved that the defendant acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant deliberated and premeditated if, before acting, he carefully weighed considerations for and against his choice and, knowing the consequences, decided to kill. [¶] The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration of the choice and its consequences is not deliberate and premeditated. On the other hand, a cold calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time."
The next day, the jurors asked to hear closing arguments again, especially the arguments regarding first or second degree murder. The jurors also asked the trial court if their interpretation of CALJIC No. 17.10 ("Conviction of Lesser Included or Lesser Related Offense—Implied Acquittal—First") was correct, i.e., "We must unanimously acquit of murder in the [first] degree before we can decide a lesser charge?" The court deferred the request for further closing arguments. But it answered the jurys question about CALJIC No. 17.10 in the affirmative, explaining the jury should also consider CALJIC Nos. 8.71 ("Doubt Whether First or Second Degree Murder") and 8.72 ("Doubt Whether Murder or Manslaughter") in conjunction with CALJIC No. 17.10. About one hour later, the jury returned its verdicts, finding defendant guilty of first degree murder.
Defense counsel did not object to any of the proceedings described above.
After the jury returned its verdicts, defendant moved for a new trial, or, alternatively, to reduce his first degree murder conviction to second degree murder. Defense counsel argued that while there was "substantial evidence of premeditation and deliberation as to [Miller]," there was "no evidence as to the shooting that actually occurred."
During the hearing on the motion, the trial court asked defense counsel whether it could consider evidence that defendant had returned to the apartment after the fight with Miller "with a killing state of mind even though it didnt relate to Mr. Jackson . . . about whether or not the evidence actually showed sufficient premeditation as it related to Mr. Jackson?" While defense counsel acknowledged that this evidence was "certainly . . . a background fact to be considered as to whether or not premeditation [or deliberation] as to the actual victim took place," he argued there was too short a time between when Jackson appeared at the door and defendant shot him for there to be sufficient premeditation and deliberation specific to Jackson. Defense counsel said there was not any doctrine of "transferred premeditation" similar to the doctrine of "transferred intent." The trial court responded that it was not suggesting that any such doctrine applied in this case.
The prosecutor agreed that until Jackson opened the door, "there appeared to be no evidence of premeditation and deliberation as to Mr. Jackson." But he argued the jury could consider defendants conduct in returning to the apartment with the gun as evidence of a "foundational intent . . . to kill" which ripened into "willful, premeditated and deliberated as to Mr. Jackson when [defendant] saw Mr. Jackson at the door; had the conversation with him, and decided at that point to shoot him multiple times." The trial court denied the motion saying simply there was substantial evidence to support the jurys verdict.
b. Analysis.
Defendant argues the trial court erred by failing to advise the jury that one of the theories of premeditation and deliberation which the People argued to the jury was incorrect. Defendant asserts the prosecutors argument "was essentially that any evidence showing that [defendant] had premeditated the intended killing of Derrick Miller could be applied to show premeditation in the killing of the actual victim, Andre Jackson." For the same reason, defendant also asserts the trial court erred in denying his motion for a new trial. We conclude there was no error.
Although we address defendants assertions on the merits, we note that defense counsel arguably waived these issues by failing to object to the relevant portions of the prosecutors closing arguments, by failing to object to the relevant jury instructions, and by failing to request a clarifying instruction. (People v. Morales (2001) 25 Cal.4th 34, 43-44 ["When a defendant believes the prosecutor has [misstated some law] during argument, he or she is obliged to call them to the courts attention by a timely objection. Otherwise no claim is preserved for appeal."].)
Citing People v. Perez (2005) 35 Cal.4th 1219, 1233, and People v. Green (1980) 27 Cal.3d 1, 69, defendant relies on the rule that "when the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand." And defendants citation of additional authority submitted at oral argument, the Ninth Circuit cases of Lara v. Ryan (9th Cir. 2006) 455 F.3d 1080, 1085 and Pulido v. Chrones (9th Cir. May 30, 2007) 487 F.3d 669, made the same point. The fatal flaw in defendants assertion is that no legally incorrect theory regarding premeditation and deliberation was ever presented to the jury. At no point during the trial did the prosecutor argue to the jury that evidence of defendants premeditation and deliberation as to the victims lover, Miller, would, by itself, suffice to establish premeditation and deliberation regarding the ultimate victim, Jackson. And none of the jury instructions so advised the jury. Consequently, there was no prosecutorial misconduct about which the trial court should have advised the jury, and the trial court properly denied the motion for a new trial.
The prosecutor did not make any such argument in opposition to the motion for a new trial. Similarly, the trial court did not rely on any such argument in denying that motion.
Defendants assertions are not to the contrary. For example, defendant asserts the "prosecutor argued that any one of the choices that [defendant] made, at any one of these points, whether before or after Jackson opened the door, was sufficient to show premeditation and deliberation." Defendant relies on the following excerpt from the prosecutors argument to support this assertion: "Each of these is a choice that defendant made. Each of these is a choice, and at each opportunity, at each junction, he could have made a different choice. He had the opportunity. He had five to ten minutes to make a different choice, and at each point he chose . . . death over life . . . . [¶] If the defendant had made a different choice at any of these steps, [Jackson] would still be alive today, and we would . . . not be having a murder trial."
At no point in this portion of the prosecutors argument does he suggest that the choices defendant made before he encountered Jackson that day were alone sufficient to prove premeditation and deliberation. Indeed, the choices the prosecutor referred to consisted not only of those that preceded defendants arrival at the apartment with the gun, but also the choices defendant made when he came face-to-face with Jackson, including pointing the gun at Jackson and firing "that gun six times, including shots as [Jackson] turned to run." The prosecutor discussed the evidence suggesting that when defendant faced Jackson at the apartments front door, he made a cold, calculated judgment to kill Jackson: defendant spoke to Jackson in a calm voice and tried to disarm Jackson by telling Lewis that Jackson was his "partner," even after Lewis warned defendant that what he was about to do was wrong, saying, "No, Rob!" Thus, it is clear that the prosecutor was properly arguing that (1) by the time defendant arrived at the apartment with the gun, he had had time to cool off from his fight with Miller and had prepared himself to kill someone and (2) when he met up with Jackson, he engaged in an additional "thought process" and coolly decided to kill Jackson. (See Morales, supra, 25 Cal.4th 34, 43-44 [commenting on reasonable inferences that may be drawn from the evidence is not prosecutorial misconduct].)
It was not improper for the prosecutor to ask the jury to consider the evidence regarding defendants apparent preparations to shoot Miller. As defense counsel correctly acknowledged during the hearing for the new trial, defendants "killing state of mind" before he confronted Jackson at the apartments door was "a background fact to be considered as to whether or not premeditation [or deliberation] as to the actual victim took place." The prosecutors argument was akin to the following proper argument: "Having [planned to shoot Miller, and instead encountering Jackson at the apartments front door], it would not have taken long for defendant to decide he could similarly dispatch [Jackson]. Defendant already had a successful murder plan; he needed to decide only whether to implement it [with respect to Jackson]. Premeditation and deliberation do not require much time [citation], for ` "[t]houghts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly."`" (See People v. Lenart (2004) 32 Cal.4th 1107, 1127 (Lenart) [evidence that defendant had successfully implemented a plan to murder another, prior victim could be considered by the jury in determining whether the defendant premeditated and deliberated regarding similarly killing a subsequent victim].) Consequently, it was not improper to ask the jury to consider evidence pertaining to the premeditation and deliberation which defendant engaged in before Jackson answered defendants knock on the door.
Moreover, none of the jury instructions given at trial suggested that "any evidence showing that [defendant] had premeditated the intended killing of Derrick Miller" was alone sufficient to establish "premeditation in the killing of the actual victim, Andre Jackson." The trial court instructed the jury with CALJIC No. 8.20, which provides a "definition of premeditation and deliberation," which is "a correct statement of the law." (People v. Perez (1992) 2 Cal.4th 1117, 1123 (Perez).) CALJIC No. 8.20 made it clear that, in order to convict defendant of first degree murder, the jury had to first find that Jacksons killing—the only killing at issue in defendants trial—"was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation." (CALJIC No. 8.20 (Fall 2006 ed.).) The court also properly answered the jurys question regarding premeditation with CALCRIM 521. Neither of these instructions, nor any other instruction, told the jury that it could rely exclusively on defendants state of mind with respect to Miller in assessing whether defendant premeditated and deliberated killing Jackson. Consequently, there is no reasonable likelihood the jury found defendant committed first degree murder without first finding that defendant premeditated and deliberated killing Jackson. (People v. Cain (1995) 10 Cal.4th 1, 36-37 [in assessing whether a jury instruction misled the jury, the test is whether "there is `a reasonable likelihood the jury understood the instructions as the defendant asserts"].)
Defendant appears to argue the trial court also erred by not adequately addressing the jurys request during deliberations for a definition of premeditation that would clarify or simplify the term. But the jury did not indicate it was confused about whether it could rely solely on premeditation with respect to Miller to convict defendant of first degree murder for killing Jackson. Instead, the jury asked about premeditation in general: its definition and some examples. The trial court properly provided the jury with an additional explanation of deliberation and premeditation as set forth in CALCRIM 521. It appears this additional explanation adequately addressed the jurys confusion. There were no additional questions on this topic, and the next day the jury returned its verdicts.
II. The Sufficiency of the Evidence of Premeditation and Deliberation.
Defendant next argues "that when the evidence as to Derrick Miller is removed from the analysis, the record does not contain sufficient substantial evidence to support a finding of premeditation and deliberation with regard to the actual victim, Andre Jackson." As we discuss above, the jury was not required to ignore the evidence as to Miller, and could rely upon it in part to determine whether there was premeditation and deliberation with respect to killing Jackson. Based on our review of the entire record, we conclude there was substantial evidence to support the jurys finding of premeditation and deliberation.
"Review on appeal of the sufficiency of the evidence supporting the finding of premeditated and deliberate murder involves consideration of the evidence presented and all logical inferences from that evidence in light of the legal definition of premeditation and deliberation [set forth in CALJIC No. 8.20]. Settled principles of appellate review require us to review the entire record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—from which a reasonable trier of fact could find that the defendant premeditated and deliberated beyond a reasonable doubt." (Perez, supra, 2 Cal.4th at p. 1124.)
In People v. Anderson (1968) 70 Cal.2d 15 (Anderson), the Supreme Court identified three categories of evidence relevant to determining premeditation and deliberation: (1) planning activity; (2) motive, including "facts about the defendants prior relationship and/or conduct with the victim"; and (3) manner of killing. (Id. at pp. 26-27.) The Anderson "factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation." (People v. Stitely (2005) 35 Cal.4th 514, 543 (Stitely); see also Perez, supra, 2 Cal.4th at p. 1125 ["Anderson did not purport to establish an exhaustive list that would exclude all other types and combinations of evidence that could support a finding of premeditation and deliberation"]; Lenart, supra, 32 Cal.4th at p. 1127 ["The Anderson factors are not the exclusive means for establishing premeditation and deliberation"].) However, where, as in this case, "`the record discloses evidence in all three [Anderson] categories, the verdict generally will be sustained." (Stitely, supra, 35 Cal.4th at p. 543.)
Regarding planning, the first Anderson factor, the jury could properly consider the evidence suggesting that defendant planned to shoot Miller and conclude that when he showed up at Berna Blakes apartment he decided to "similarly dispatch [Jackson]." (Lenart, supra, 32 Cal.4th at p. 1127.)
Regarding motive, the second Anderson factor, there was substantial evidence that defendant had at least one motive to kill Jackson. First, there was evidence of bad blood between defendant and Jackson. In the weeks and days leading up to the shooting, there had been both verbal and physical altercations between defendant and Jackson. The evidence suggested that at least part of the reason for this bad blood was that defendant was homophobic. Indeed, there was evidence that defendant had harassed all of the men staying at Berna Blakes apartment — Jackson, Miller, and Parish Blake—because of their homosexuality. Moreover, there was evidence that defendant knew that Miller was Jacksons lover, from which the jury could infer that in shooting Jackson defendant sought to retaliate against Miller after losing the fight to him earlier that day.
Second, there was evidence that Jackson played a role in defendants humiliating defeat at the hands of Miller. Miller testified that Jackson encouraged him to fight defendant and, when it was clear that Miller had gotten the best of defendant, told Miller to stop fighting and go inside Berna Blakes apartment. When defendant wanted to resume the fight, presumably to vindicate himself, Miller testified that Jackson would not allow it. Jackson instructed Miller to "go in there and wash your hands. You already whooped him."
Third, Jackson thwarted defendants apparent plan to shoot Miller. When defendant returned to the apartment with a gun, Jackson refused to let him in or to see Miller. The jury could conclude that defendant coldly determined to kill Jackson simply because Jackson was physically in defendants way.
Regarding the third Anderson factor, the manner in which defendant killed Jackson also indicated premeditation and deliberation. Immediately before the shooting, defendant engaged in what sounded like a calm conversation with Jackson which the jury could conclude was designed to lead Jackson to believe that neither he nor Miller were in any immediate danger. Defendant told Jackson he did not want to fight with Miller, just talk to him. Defendant similarly appeared to reassure Lewis (and Jackson) that he did not intend to harm Jackson, saying to Lewis in Jacksons presence that he was "not going to do nothing . . . . [Jackson] is my partner." A jury could reasonably infer that during this conversation defendant had the opportunity, and did in fact, premeditate and deliberate, and after this reflection chose to shoot Jackson repeatedly. The fact that this conversation may have been a relatively brief one is not dispositive. "We have never required that there be an extensive time to premeditate and deliberate." (Lenart, supra, 32 Cal.4th at p. 1127; see also Perez, supra, 2 Cal.4th at p. 1127 ["premeditation can occur in a brief period of time"].)
The physical evidence further supported a conclusion that defendant made a cold calculation to kill Jackson. (See Lenart, supra, 32 Cal.4th at p. 1127 [a "killing may be committed with such calculation that the manner of the killing will support a jury finding of premeditation and deliberation, despite little or no evidence of planning or motive"]; cf. Anderson, supra, 70 Cal.2d at pp. 24-25 ["the brutality of a killing cannot in itself support a finding that the killer acted with premeditation and deliberation"].) Jackson was shot six times, and every shot struck Jackson above his knees. Two of the shots struck Jackson in the back with trajectories suggesting that Jackson had turned away from defendant at the time and was bent over with his head down. Similarly, Miller and Parish Blake testified that Jackson was running away from defendant while some of the shots were fired.
III. The Validity of Defendants Miranda Waivers and the Voluntariness of His Statements to Police.
a. Procedural and Factual Background.
On August 9, 2005, defendant filed a motion in limine seeking to exclude his pretrial statements to the police on Miranda and involuntariness grounds. A hearing on the motion was held on August 17 and 18, 2005, during which the court received the following testimony and evidence: On December 23, 2002, defendant was arrested and questioned regarding Jacksons death; defendant was 20 years old at the time. Before this arrest, he had been arrested three to five times for drug offenses, including as a juvenile. When defendant was arrested on October 1, 2001 for possession of narcotics for sale, he was advised of his Miranda rights, said he understood those rights, and after initially stating he would speak with the interviewing officer, invoked his right to silence.
At the time of his arrest for Jacksons death (11:50 a.m.), defendant did not appear to have any physical injuries. At 12:21 p.m. he was placed in an interview room after being transported to the police department in a patrol car. The arresting officer did not attempt to interview defendant at the time of the arrest or during his transport to the police department. Defendant was calm and did not say anything aside from responding to the arresting officers questions regarding defendants identifying information.
The first portion of defendants interview with police lasted from 4:03 p.m. to 5:45 p.m. At 4:03 p.m., investigating officers Dunakin and Longmire introduced themselves to defendant and began to fill out the biographical portion of their standard statement form with defendants assistance. During the interview, defendant was not handcuffed. Neither Dunakin nor Longmire had his gun with him, and they were both dressed in plain clothes. They were the only officers in the interview room. Dunakin told defendant that he wanted to discuss a murder that had occurred in early December. At this point in the interview, Dunakin read defendant the Miranda advisements printed on the statement form. After Dunakin asked defendant if he understood his Miranda rights, defendant answered, "Yes." Dunakin then asked if, having these rights in mind, defendant would like to talk to the investigating officers, and defendant responded, "Yes. No problem." Dunakin recorded defendants responses on the form and defendant initialed his responses.
Dunakin testified that defendant appeared to hear and understand the questions Dunakin asked him regarding his Miranda rights and regarding his willingness to talk to the investigating officers. Defendant did not appear to be confused or uncertain, nor did he appear to have any physical injuries or to be in any physical discomfort. Defendants behavior did not seem abnormal or unusual. During this initial portion of the interview, defendant was calm and polite and seemed willing to talk to the officers.
The initial portion of the interview was not taped. During this portion, defendant said that on the date of Jacksons death, he was in San Francisco with his girlfriend, Keisha. He said he had never been to the area of Berna Blakes apartment. He said he had seen Donte Lewis around, but did not know Miller, Parish Blake or Berna Blake. Defendant denied having gotten into a fight with anyone on December 4, 2002, or at any other time that month.
Dunakin then told defendant he had tapes from witnesses who said defendant had been to the area of Berna Blakes apartment and that defendant had been involved in a homicide there. Defendant did not change his story and continued to deny any involvement. Dunakin brought Lewis to the door of the interview room so defendant could see him, but defendant continued to deny knowing Lewis. At 5:45 p.m., the investigating officers left the interview room, allowing defendant to remain unhandcuffed. By that time, defendant had become "jittery" and nervous; he was pacing back and forth when the officers left the room. Dunakin testified that the more they confronted defendant with information regarding the case, the more nervous defendant became. However, when Dunakin left the room, he had no concern about defendants safety or well-being.
At about 6:05 p.m., the officers heard a thump, as if someone had fallen. They entered the interview room to check on defendant and found him on his back. Defendant stood up on his own, said he was fine, but said he had lost his balance and had fallen. Longmire told defendant to sit in the chair and relax. Defendant looked nervous, but physically fine. He was seated and not handcuffed when the officers again left the room.
Through the interview room door, defendant then asked Dunakin for some water and some ice for his head. As Dunakin was getting these for defendant, he heard some banging and what sounded like chairs being moved around. Dunakin looked through the peephole in the interview rooms door to see defendant walking in circles very quickly. He seemed "really excited" like he was "starting to freak out." Looking through the peephole again, Dunakin saw something around defendants neck. Dunakin then pushed the door open and saw there was a shoelace around defendants neck, the other end of which was tied to the doorknob. The lace came from one of defendants shoes. Dunakin took the shoelace off the doorknob, and Longmire untied the lace from around defendants neck. Longmire tried to calm defendant, saying, "Breathe. This isnt the way to handle this."
Dunakin called for an ambulance. Nothing appeared to be obstructing defendants airway, but his breathing seemed forced. Dunakin never saw defendant lose consciousness. Defendants neck was red from the shoelace and he had a cut above his eye, near the eyebrow. The ambulance arrived quickly and transported defendant to Highland Hospital.
Oakland Police Officer Everett Peterson also responded to the emergency call at the police station, arriving before defendant was transported to the hospital. Peterson observed fire department and ambulance personnel administer first aid to defendant. Peterson testified that these personnel discussed putting some type of apparatus into defendants throat and then proceeded to open defendants mouth. At that point, defendant "went from what appeared to be a semi-unconscious state to being completely conscious to moving about as if he was trying to stop them from putting something in his mouth."
Peterson followed defendant to Highland Hospital. Although defendant talked to the nurses and doctor there, he seemed "semi-conscious" and in a "drowsy state" until the medical personnel "wanted to insert a catheter into his penis," at which point defendant became "fully conscious and objected to having that done." Peterson testified that the pattern was that defendant became very alert when certain things were about to be done to him, but he "drifted back into a semi-conscious [state]" when he was asked questions. At the hospital, defendant received sutures to close the laceration near his eyebrow.
After defendant was cleared at Highland Hospital, he was transported very early on December 24, 2002 to John George Psychiatric Pavilion where he spoke with medical staff for about a half hour. He was then cleared medically, which typically involved the transporting police officer receiving paperwork stating the inmate was "fit for incarceration." Defendant was transported to the police department and placed in the same interview room at 5:30 a.m. The door to the interview room was left open. One of the transporting officers testified he did not observe anything unusual about defendants demeanor at that point. He did not complain of any physical discomfort, nor display any abnormal behavior. Longmire arrived and checked on defendants well-being at 6:12 a.m.
At 6:59 a.m., Dunakin and Longmire returned to the interview room. Dunakin readvised defendant of his Miranda rights, verbatim, asked him if he understood the rights, and asked if, having his rights in mind, defendant wished to talk to him. Defendant said, "Yes," and initialed a written waiver form. Defendant then explained that the reasons for his apparent suicide attempt were that he was upset because nobody had come for his birthday, he felt lonely, and his life was a mess. He again denied killing Jackson. After the officers had been talking to defendant about the importance of telling them the truth, defendant started to become sad and emotional, though still calm. He said "he was sorry for what happened. He didnt mean for it to happen." But then he "pulled back again," denying any involvement in Jacksons death. During this second segment of the interview, defendant did not complain of any physical discomfort, nor exhibit any behavior that gave Dunakin any concern about defendants psychiatric well-being. He also never indicated to the officers that he wanted to terminate the interview or that he wanted to invoke his Miranda rights to stop talking with the officers.
At one point during this second portion of the interview, defendant asked to talk with his girlfriend, Keisha. Dunakin telephoned Keisha and asked her to come to the police station. At 8:30 a.m., defendant saw Keisha during a bathroom break, but the officers did not allow defendant to talk to Keisha at that time. They resumed the interview at 8:35 a.m.
At another point in the interview, defendant indicated that the "[w]ord on the block" was that Donte Lewis was at the scene of the crime. The officers began asking questions about Lewiss possible involvement. Defendants answers were responsive and coherent. He did not appear to have any difficulty understanding the questions.
At 9:25 a.m. on December 24, 2002, defendant said in a taped statement that his Miranda rights had been read to him both on the previous night, December 23, as well as on the morning of December 24. He said he had acknowledged those rights and had indicated a willingness to talk to the officers. Defendant then described how he had been feeling alone before he put the shoestring around his neck. When asked whether he had tried to kill himself on his own, he responded that he just "wanted to escape," and that "life is so hard." He said he did not know how he got the cut above his eye, but he said it probably happened when he fell to the floor.
Defendant acknowledged that he had been near the area of Berna Blakes apartment. He said he had told the officers earlier that he was sorry for the shooting, but said he thought it was an accident. He said that he had heard that Lewis had gotten into an altercation, went to get "some protection," then came back and shot someone. Defendant said he had been in San Francisco with Keisha on the day of the shooting. Defendant again denied knowing Jackson, Parish Blake, or Berna Blake, as well as ever having been on the third floor of the apartment building where Jackson was shot. The taped interview concluded at 9:46 a.m., when the officers took a break, leaving defendant unhandcuffed in the interview room.
From 9:57 a.m. to 11:24 a.m., the officers checked on defendant periodically, at times finding him asleep, and at other times giving him food. At 11:25, the officers resumed the interview, but did not tape it. During this portion of the interview, defendant started talking about what he had heard, about specifics involving Lewis, and about a fight Lewis was in which defendant had observed.
From 12:16 p.m. to 12:26 p.m., the officers conducted a second taped interview. On this tape, defendant again confirmed that, on both December 23 and 24, Dunakin had read defendant his Miranda rights, and defendant had acknowledged those rights and agreed to speak with the investigating officers. Defendant then described a fight between Lewis and someone outside of the apartment building where Jackson was shot. Defendant said he verbally tried to break this fight up by trying to help them come to a compromise. He said the man Lewis fought with talked as though he were homosexual. He said he saw Lewis go get a gun afterwards. Lewis and defendant then went to the top of a building where Lewis knocked on a door. Lewis invited the person who answered the door and that persons friend to come outside. Lewis wanted to fight the friend and wanted defendant to fight the other person. However, defendant next heard Lewis fire a shot and defendant turned and ran out of the building.
After this second taped interview, the officers started to leave the interview room to take a break, but defendant grabbed Dunakins leg and asked him not to leave. Defendant said "I didnt mean to do it. It just started going off. Cant remember what kind it was." He started sobbing and said something to the effect of, "Accidentally happened. Shot four times."
The officers then made a third, and final, tape from 12:39 p.m. to 12:50 p.m. Again, defendant acknowledged having had his Miranda rights read to him on December 23 and 24, having acknowledged those rights, and having agreed to talk to the officers. Longmire asked defendant to pick up with the "true version" of what happened when defendant and Lewis were on the third floor of the apartment building. Defendant said Lewis was trying to get someone to come out of the apartment, but that person refused. Defendant "heard a pop." He and Lewis ran toward each other, and Lewis dropped something. Defendant picked it up. It was a gun. Defendant did not aim the gun, but tried to avoid shooting himself while he ran. Defendant and Lewis were still near the doorway of the apartment where the person had been shot. Defendant said the gun "just kept bouncing" in his hand and went off about four times, though he could not be sure of the exact number because it all "happened so fast." Defendant did not see the man who was shot. After the shots, defendant gave the gun to Lewis and then left.
Defendant told the officers he at first claimed not to have any first-hand knowledge of Jacksons shooting because he "didnt know [the officers] had good intentions." Defendant explained it was "difficult" for him to talk about the shooting because "look what happened. [¶] . . . Someone died for nothing."
Defendant agreed on the tape that during their interviews the officers had not been abusive, and specifically that they did not hit him or "throw [him] down." Defendant explained the reason he had tried to hang himself the night before was he "was thinking, `man, [I] cant say good-bye to my mother, my girl or . . . I never see nobody again. Ill just never get to . . . say, "Im sorry.""
From 1:58 p.m. to 2:20 p.m., the officers allowed defendants girlfriend Keisha to visit with defendant in the interview room. Defendant was then taken to jail. Dunakin testified during the hearing that he did not make any promises to the defendant during the interviews "about being able to see Keisha, if he, for example, cooperated with [the officers], or gave [them] a true version of what happened." Dunakin agreed that defendant brought up his desire to talk with Keisha several times during the interviews. Each time, his response was something to the effect of, "We will try to make those accommodations later." Dunakin said the officers "told him that we would allow him to speak with Keisha if the opportunity presented itself afterwards or when it was appropriate. But there was no promise that he was going to speak to her." The officers ultimately allowed defendant to speak with Keisha because "it was Christmas Eve, and we were done speaking with" defendant.
Dunakin also testified that throughout the investigating officers interviews of defendant, he appeared to understand their questions and his answers were responsive and coherent. Defendant never showed any unwillingness to speak to them. Dunakin testified neither he nor Longmire ever used any physical force on defendant, nor did they make any threats toward defendant or anyone else. They made no threats regarding penalty, punishment, or the district attorneys involvement in the case, and no promises of leniency. Dunakin testified he never raised his voice or yelled at defendant.
Defendant called Dr. John Podboy, a clinical and forensic psychologist, to testify at the suppression hearing. Based on a review of hospital and police records as well as his own observations, Podboy concluded that at the time he interviewed defendant on January 28, 2003, defendant was suffering from "a major form of mental illness," though he could not determine exactly which one. Podboy thought the mental illness was chronic. After defendant was admitted to Atascadero State Hospital for about two and a half months, defendant was diagnosed on August 5, 2003 with major depression with psychotic features in partial remission. Podboy noted that defendant had reacted quite favorably to antipsychotic medications which he subsequently received, leading Podboy to believe that defendant had actually been suffering from real psychosis symptoms.
Podboy testified that he believed that defendant made a very serious suicide attempt on December 23, 2002, and that when he made his statements to the investigating officers he was very seriously depressed and "detached from the real world." He noted the records showed that in about 2000 defendant had attempted suicide by cutting his wrists and slashing his neck, that defendant came from a family with a lot of serious problems, and that defendant had been a heavy user of ecstasy. Based on this history, Podboy opined defendant had suffered mental illness for a "long duration, possibly." Podboy opined it was doubtful that defendant understood his Miranda rights when he was advised of them because he was preoccupied with the serious decision to take his own life. Podboy further opined that there was no reason to believe that defendants mental functioning improved after his suicide attempt, or after his visit to the John George Psychiatric Pavilion on December 24, 2002. Indeed, he opined that defendants survival of the suicide attempt would have negatively impacted his ability to understand and waive his Miranda rights immediately afterwards.
Podboy testified that the voluntariness of defendants statements on December 23 and 24 must have been affected "to some extent" by defendants mental condition. He acknowledged that toxins played no role in defendants mental condition at the time. Podboy also acknowledged "there was no evidence [defendant] was being forced, or that he was being intimidated unduly by law enforcement, or anything of the sort." Podboy said he thought that the investigating officers offer to allow defendant to spend some time with his girlfriend Keisha "may have been of some temporary benefit" because he seemed "to be very dependent on this young lady. I think she was about his only support from what I can tell."
On August 30, 2005, after hearing the evidence described above, the trial court denied defendants suppression motion. The court found the Miranda warnings were properly given to defendant and otherwise met the requirements of Miranda in that defendant appeared to understand his rights and to understand he was waiving them, there was no coercive atmosphere at the time, and defendant had exercised his Miranda rights on a previous occasion for a previous offense. The court similarly found the voluntariness requirements were met.
The Attorney General initially argued defendant could not appeal the trial courts denial of his motion in limine because the trial courts order denying the motion was not included in the reporters transcript. However, defendant has since augmented the record to include the portion of the reporters transcript with counsels oral argument on the motion and the trial courts order denying that motion, as described above. (Cal. Rules of Court, rule 8.340, subd. (b) [permitting such augmentation].)
b. Analysis.
Defendant argues the trial court erred in denying defendants motion to suppress his statements to police because (1) the totality of the circumstances show that his statements were coerced and involuntary under federal constitutional standards; and (2) his suicide attempt and mental illness vitiated his two Miranda waivers. We conclude the trial court did not err in denying the motion.
"On appeal, we review independently a trial courts ruling on a motion to suppress a statement under Miranda. [Citation.] In doing so, however, `we accept the trial courts resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence." (People v. Guerra (2006) 37 Cal.4th 1067, 1092-1093 (Guerra).) Similarly, regarding the voluntariness of a statement made to police, "We review independently a trial courts determination as to whether coercive police activity was present and whether the statement was voluntary. [Citation.] We review the trial courts findings as to the circumstances surrounding the confession, including the characteristics of the accused and the details of the interrogation, for substantial evidence. [Citation.] `[T]o the extent the facts conflict, we accept the version favorable to the People if supported by substantial evidence." (Id. at p. 1093.)
The state must demonstrate both the validity of the defendants Miranda waiver and the voluntariness of the defendants statements to police by a preponderance of the evidence. (People v. Bradford (1997) 14 Cal.4th 1005, 1033-1034.)
"Miranda holds that `[t]he defendant may waive effectuation of the rights conveyed in the warnings `provided the waiver is made voluntarily, knowingly and intelligently. [Citation.] The inquiry has two distinct dimensions. [Citations.] First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the `totality of the circumstances surrounding the interrogation reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived." (Moran v. Burbine (1986) 475 U.S. 412, 421 (Moran).)
As our Supreme Court has explained, assessing the voluntariness of a defendants statements to police involves the "same inquiry" as assessing "the voluntariness of a Miranda waiver." (Guerra, supra, 37 Cal.4th at p. 1093.) "`The due process [voluntariness] test takes into consideration "the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation." [Citation.] This test `examines "whether a defendants will was overborne" by the circumstances surrounding the giving of a confession. [Citation.] . . . . `[C]oercive police activity is a necessary predicate to the finding that a confession is not "voluntary" within the meaning of the Due Process Clause of the Fourteenth Amendment. [Citations.] Coercive police activity, however, ` "does not itself compel a finding that a resulting confession is involuntary." [Citation.] The statement and the inducement must be causally linked." (Ibid.)
Defendant asserts that "by attempting to kill himself in the interrogation room, [defendant] was indicating he did not want to talk further with the officers—or with anyone." This argument apparently applies only to defendants statements made after his suicide attempt; he asserts that when he made the suicide attempt he was invoking his right to silence after having initially waived his Miranda rights at the beginning of his police interview on December 23. However, once the right to silence has been waived and police questioning has begun, a suspect must unambiguously assert his right to silence or to counsel. "In order to invoke the Fifth Amendment privilege after it has been waived, and in order to halt police questioning after it has begun, the suspect `must unambiguously assert his right to silence or counsel. [Citation.] It is not enough for a reasonable police officer to understand that the suspect might be invoking his rights. [Citation.] Faced with an ambiguous or equivocal statement, law enforcement officers are not required under Miranda . . . either to ask clarifying questions or to cease questioning altogether." (Stitely, supra, 35 Cal.4th at p. 535.) This approach applies even to "suspects who, for emotional or intellectual reasons, have difficulty expressing themselves." (Ibid.) There was no evidence defendant attempted to commit suicide in order to terminate police questioning. In fact, he told the police the reasons he attempted suicide: he was upset because nobody had come for his birthday, he felt lonely, and his life was a mess.
Even assuming that defendants suicide attempt did somehow communicate an intent to invoke his Miranda rights, the police did not resume questioning immediately after that attempt. Instead, they sought both medical and psychiatric assistance for defendant. And after both medical and psychiatric personnel cleared defendant to be returned to police, the investigating officers again read him his Miranda rights and he proceeded to waive them a second time. The officers went on to remind defendant of his Miranda rights three times subsequently, asking him at the beginning of each of the three taped interviews whether he had been read his Miranda rights and whether he had waived them. "This cautious approach gave defendant a chance to clarify whether questioning should proceed—something . . . the officer[s were] not constitutionally required to do." (Stitely, supra, 35 Cal.4th at p. 535.) "However, instead of exercising the right to silence that [the investigating officers] purposefully `reinforced, defendant . . . continu[ed] talking about the crime. Under the circumstances, nothing prevented [the officers] from continuing the exchange." (Id. at p. 536.)
Defendant also asserts that after his suicide attempt, he "was not in an appropriate state of mind to understand his rights, or to make a knowing and intelligent waiver of them." However, the "sole concern of the Fifth Amendment" with respect to both the validity of a Miranda waiver and the voluntariness of a defendants statements to police "is governmental coercion. [Citations.] Indeed, the Fifth Amendment privilege is not concerned `with moral and psychological pressures to confess emanating from sources other than official coercion." (Colorado v. Connelly (1986) 479 U.S. 157, 170 [Miranda], 167 [voluntariness].) The Supreme Court has expressly declined to "require sweeping inquiries into the state of mind of a criminal defendant who has confessed, inquiries quite divorced from any coercion brought to bear on the defendant by the State." (Id. at pp. 167 [voluntariness], 169-170 [Miranda].) There is no evidence that any police "intimidation, coercion or deception" (Moran, supra, 475 U.S. at p. 421) played any role in defendants suicide attempt or in any mental illness that defendant may have been suffering from either before or after that attempt. Consistent with this fact, Dr. Podboy testified that "there was no evidence [defendant] was being forced, or that he was being intimidated unduly by law enforcement, or anything of the sort."
Moreover, it was proper for the trial court to conclude, based on the evidence at the suppression hearing, that defendant did understand his rights and knowingly and intelligently waived them despite his suicide attempt or any mental illness he may have been suffering at the time. (See Moran, supra, 475 U.S. at p. 421 [in addition to a lack of governmental coercion, "the requisite level of comprehension" is required for a valid Miranda waiver].) The only evidence to the contrary was Podboys opinion that it was doubtful defendant understood his Miranda rights because he was preoccupied with committing suicide. However, Podboy was not present during the police interviews. The investigating officers, of course, were present, and they provided extensive and detailed testimony supporting their observations that defendant did appear to understand his Miranda rights. (See Guerra, supra, 37 Cal.4th at p. 1093 ["to the extent the facts conflict, we accept the version most favorable to the People if supported by substantial evidence"].) In addition, the trial court listened to the three taped interviews where defendant thrice acknowledged having been read his Miranda rights and having waived them. And, as the trial court observed, there was evidence that defendant was already aware of his Miranda rights—he had invoked them during a prior arrest.
Finally, defendant asserts that the investigating officers pressured defendant to confess by promising him that they would "attempt to arrange a meeting between him and his girlfriend when the questioning was over." "A confession is involuntary under the federal [citation] and state [citation] guaranties of due process when it `was "`extracted by . . . any direct or implied promises, however slight . . . . "" (People v. Benson (1990) 52 Cal.3d 754, 778.) However, a "confession is `obtained by a promise within the proscription of both the federal and state due process guaranties if and only if inducement and statement are linked, as it were, by `proximate causation." (Ibid; see also Guerra, supra, 37 Cal.4th at p. 1093 [" `The statement and the inducement must be causally linked "].) Here, there does not appear to be any causal link between a promise to speak with Keisha on the one hand, and defendants subsequent statements to the investigating officers on the other. In fact, Dunakin testified that neither he nor Longmire made any promise to defendant that he would be allowed to speak with Keisha at all; they simply told him he would be allowed to speak with Keisha "if the opportunity presented itself afterwards or when it was appropriate." There was no contrary evidence presented at the hearing on defendants motion to suppress.
IV. The Bailiffs Testimony.
a. Procedural Background.
Near the end of defendants trial, the court met with defendant and counsel outside the presence of the jury after being informed that the courtroom bailiff had observed suspicious behavior by the defendant while he was being brought to the courthouse. The prosecutor proposed calling the bailiff to testify about the incident. Defense counsel objected, stating "We have a new witness who is a friend of the jury." The trial court ruled that the bailiff could testify, but would no longer be permitted to act as a bailiff at this trial.
During their case in rebuttal, the People called the bailiff, Alameda County Sheriffs Deputy Ed Ortman. Ortman testified that he was also assigned to handle transportation of inmates from the jail at Santa Rita to the courthouse in Oakland; that earlier that morning, Ortman had transported a busload of inmates from Santa Rita to the courthouse; and that defendant was one of the inmates on the bus, as was Miller, who had already testified as a prosecution witness in the case. Before the bus left Santa Rita, Ortman saw defendant pass a folded piece of paper to an inmate named English, who was in an adjacent compartment of the bus, and in the same compartment as Miller. After English looked at the paper, he passed it back to defendant.
Ortman removed Miller from the bus to assure his safety. As Ortman did so, defendant told English, "Thats him." When Ortman arrived at the courthouse, he obtained the paper from defendant and provided it to the trial court. The paper was a copy of a witness list. On the list, an arrow and a word were written next to Millers name.
On surrebuttal, inmate Andre English testified that he was on the bus with defendant, but defendant never passed him any papers. English denied discussing defendants case or the witnesses in the case with defendant. English testified he was friends with defendant.
Defendant then testified that he did pass a copy of the witness list in this case to English. But he said he did so only because English had asked what kind of evidence the People had against defendant, and to show English that it was "just a witness case, its a hearsay thing." He told English that the real perpetrator was Lewis, whose name was highlighted on the list. Defendant said he had drawn arrows on the witness list next to the names of Miller and two other witnesses to indicate to his attorney that they were in custody and should be examined carefully.
On cross-examination, defendant denied that the markings he wrote opposite Millers name were the letters "D_E." He said they were just "markings" that he had made while trying to get his pen to write, not the word "die."
b. Analysis.
Defendant argues it was error to allow Ortman to testify because he had established a special relationship of trust with the jury in his role as a bailiff before he testified and his testimony was important to the Peoples case. Defendant relies primarily on the United States Supreme Courts decisions in Turner v. Louisiana (1965) 379 U.S. 466 (Turner) and Gonzales v. Beto (1972) 405 U.S. 1052 (Gonzales). We conclude that under the circumstances of this case, it was not error to permit Ortman to testify because "[n]either defendants right to a fair trial, nor his right to jury trial was undermined by" Ortmans testimony. (People v. Cummings (1993) 4 Cal.4th 1233, 1291.)
In Turner, "The two principal witnesses for the prosecution" were deputy sheriffs who had investigated the murder for which the defendant in the case was ultimately convicted and sentenced to death. The defendant had confessed the crime to these deputies. (Turner, supra, 379 U.S. at pp. 466-467.) The deputies also acted as bailiffs during the defendants trial, which meant that the jurors, who were sequestered, were continuously in their presence. (Id. at pp. 467-468.) After the deputies gave their testimony, they continued acting as bailiffs during the trial. (Id. at p. 470.)
The Supreme Court concluded that "[w]hat happened in this case operated to subvert [the] basic guarantees of trial by jury," emphasizing that the deputies testimony "was not confined to some uncontroverted or merely formal aspect of" the prosecutions case. (Turner, supra, at p. 473.) Instead, the credibility "of these two key witnesses must inevitably have determined whether Wayne Turner was to be sent to his death." (Ibid.) The high court went on to explain that "even if it could be assumed that the deputies never did discuss the case directly with any members of the jury, it would be blinking reality not to recognize the extreme prejudice inherent in this continual association throughout the trial between the jurors and these two key witnesses for the prosecution." (Ibid.) The court emphasized that "Turners fate depended on how much confidence the jury placed in these two witnesses." (Id. at p. 474.)
In Gonzales, the high court summarily reversed the defendants conviction, citing Turner. (Gonzales, supra, 405 U.S. at p. 1052-1053.) Justice Stewart wrote a concurring opinion which explained that, as in Turner, "[t]he prosecutions case against the petitioner rested almost totally upon the testimony of the county sheriff," who "played a dual role at trial" as both "the key prosecution witness" and the jurys bailiff. (Id. at p. 1052.) As in Turner, the sheriff testified regarding the defendants confession and continued to act as bailiff even after completing his testimony, having "substantial and continuing contact with and authority over [the jurors] during the entire course of the trial." (Gonzales, supra, at p. 1053.) According to Justice Stewart, Turner required reversal where there were "crucial witnesses against the defendant who associated with the jurors as their official guardians throughout the trial." (Gonzales, supra, at p. 1505.) Justice Stewart acknowledged that "the extent and intensity of a bailiffs association with a jury will vary from case to case," but concluded the petitioners case fell "within the four corners of Turner" because the sheriff was "the key witness for the prosecution" and had associated "extensively with the jurors during the trial." (Id. at p. 1056.)
Turner and Gonzales do not mandate reversal here because the facts are distinguishable in three significant ways. First, and most importantly, Ortman was far from a "key" or "crucial" prosecution witness. Unlike the testimony of the bailiffs in Turner and Gonzales, Ortmans testimony was not required for a verdict against defendant. Ortmans relatively brief testimony did not concern the facts of the crime itself or any pre-trial confessions or admissions made by the defendant. (Cf. Turner, supra, 379 U.S. at pp. 466-467, 473; Gonzales, supra, 405 U.S. at pp. 1053, 1055.) The People had no plan to call him as a witness until the day during trial that defendant decided to pass the paper to English. (Cummings, supra, 4 Cal.4th at p. 1290 [testifying bailiff was not "the principal or `key prosecution witness" where he "had no role in the investigation of the case and was not identified prior to trial as a possible witness in the case"].) In fact, immediately after Ortmans testimony, the court gave the jury a limiting instruction stating that Ortmans description of the defendants conduct on the bus that morning could only be considered "as a circumstance tending to show a consciousness of guilt," and was otherwise "not sufficient by itself to prove guilt."
Second, unlike the bailiffs in Turner and Gonzales, Ortman ceased associating with the jury after he gave his testimony. (Cf. Turner, supra, 379 U.S. at p. 470; Gonzales, supra, 405 U.S. at p. 1053.) Finally, unlike in Turner and Gonzales, there is very little evidence in the record regarding the "the extent and intensity of [Ortmans] association with [the] jury." (Gonzales, supra, 405 U.S. at p. 1056; see, e.g., Turner, supra, 379 U.S. at pp. 467-469 [the bailiffs testified regarding their extensive, continuous contact with the jurors].) While the trial court at one point characterized Ortmans relationship with the jury as a "professional" one, there was no evidence regarding the details of that relationship. Defendant points out that jury voir dire began almost a month before Ortman testified. However we cannot tell from the record whether Ortman served as a bailiff during that entire period. And unlike the jury in Turner, the jury here was not sequestered. (Turner, supra, 379 U.S. at p. 467.)
As our Supreme Court has held, in this situation the trial court should have also "instructed the jury sua sponte not to give [Ortmans] testimony any artificial weight merely because he was a bailiff." (People v. Hill (1998) 17 Cal.4th 800, 842-843.) However, under the circumstances of this case—Ortman was not a crucial or key prosecution witness, he ceased acting as bailiff after testifying, and the trial court gave an instruction immediately after Ortmans testimony regarding the limited probative value of his testimony— we conclude that this error was harmless. (See Hill, supra, 17 Cal.4th at p. 844 [trial courts failure to so instruct the jury was "independently harmless"].)
V. Defendants IAC Claim.
In his petition for a writ of habeas corpus, defendant argues that his trial counsel provided ineffective assistance by failing to object to testimony that defendant had committed previous assaults on persons other than Jackson: assaults on two other persons with a pistol and an assault on a third person with a knife. Defendant argues this testimony constituted inadmissible character evidence of uncharged criminal behavior and, had his counsel objected, the trial court would have been bound to exclude it. We conclude defendant has not established his IAC claim because there is no showing of the requisite prejudice.
a. Background.
The particular testimony to which defendant contends defense counsel improperly failed to object is as follows: Berna Blake testified that on three previous occasions, all about a year before Jacksons death, she had seen defendant with a gun. The first time was when she saw defendant simply looking at a gun he held in his hand while he was sitting in front of the apartment building where Berna Blake lived. The second time she saw defendant pull out a gun when a man walked toward him. Defendant told the man, "[D]ont walk up on me" and then told him to back up. The man "held his hand up" and said "`Okay, man. Okay." And the third time she saw defendant with a gun he shot at a man. She testified defendant shot at him because defendant did not want him around the area of her apartment. The man was not injured. She did not call the police after that incident and, to her knowledge, neither did the man.
During cross-examination, the prosecutor, apparently referring to Berna Blakes testimony above, asked defendant whether he had been in the area of Berna Blakes apartment "quite frequently with firearms," whether he had "threatened people in that area with handguns," and whether he "actually shot at another person with a handgun." Defendant answered all of these questions in the negative, and denied having ever held a firearm. During later cross-examination of defendant, the prosecutor returned to this topic, asking defendant whether the witnesses who earlier testified that defendant had a gun the day Jackson was shot or who earlier testified that defendant had a gun on prior occasions had given inaccurate testimony. Defendant replied that their testimony was indeed inaccurate.
Also during cross-examination of defendant, the prosecutor asked whether defendant had assaulted a person on the street, cutting him with a knife, and whether Jackson had witnessed this assault. Defendant denied assaulting anyone on the streets and denied cutting anyone with a knife on the street.
b. Analysis.
To establish an IAC claim, defendant must establish "both of the following: (1) that counsels representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsels unprofessional errors, a determination more favorable to defendant would have resulted." (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126.) "`A reasonable probability is a probability sufficient to undermine confidence in the outcome." (People v. Cox (1991) 53 Cal.3d 618, 656.) "If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails. Moreover, ` "a court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies."" (Rodrigues, supra, 8 Cal.4th at p. 1126.)
Defendant has not shown the requisite prejudice for his IAC claim. The three assaults at issue —two assaults with a gun and an assault with a knife—were significantly less serious than the charged crime against Jackson—first degree murder. (See People v. Brown (2000) 77 Cal.App.4th 1324, 1338 [probative value of the evidence was not substantially outweighed by the danger of undue prejudice where the prior acts "were less serious than the charged act"].) Berna Blakes testimony regarding the two assaults with a gun was brief, and she testified that no one was injured during either assault. And no evidence regarding the alleged assault with a knife was ever admitted. The prosecutor merely asked defendant whether he had cut someone with a knife, and he denied doing so. (CALJIC No. 1.02 (Fall 2006 ed.) ["A question is not evidence"].)
Moreover, as defendant admits in his habeas corpus petition, "other evidence in the case portrayed [him] to the jury as a hot-tempered person, who had taunted Derrick Miller because of his sexual orientation, who then was the loser in an unarmed fistfight." In addition to the evidence about defendants taunting and his fight with Miller immediately before the shooting, there was evidence that defendant had assaulted Jackson before the shooting, had possessed guns, and had had frequent run-ins with the police. All of this evidence made it highly unlikely that defendant would have received more favorable verdicts had his defense counsel objected to the testimony and the questioning at issue.
Specifically, Parish Blake testified he had seen defendant and five others attack Jackson about five days before Jacksons death. Miller testified he had seen defendant with a gun twice before Jacksons death, including once when he saw defendant running down the street with a gun in his hand. Lewis testified he had seen defendant with a gun earlier in the year of the shooting, as well as with a .25-caliber pistol on the day of the shooting. Similarly, Dunakin testified that Lewis had told him that, two days after Thanksgiving 2002, defendant said he had a .25-caliber pistol. There was uncontroverted testimony that the cartridge casings and bullets recovered from the scene of the shooting and Jacksons body were all . 25 caliber. Parish Blake testified he saw defendant holding a gun at the scene of the shooting immediately after he heard the shots fired at Jackson. Lastly, a police officer dispatched to the scene of the shooting testified she had contacted defendant about 20 to 30 times before in that area.
VI. Cumulative Error.
Defendant argues the cumulative prejudicial impact of the trial court errors and of his trial counsels deficient performance requires reversal. We found a single instance of trial court error—failure to instruct the jury sua sponte not to give Ortmans testimony any artificial weight merely because he was a bailiff—and have concluded such error was harmless. We did not reach the issue of whether his trial counsels performance was deficient, but concluded that even if it were (and this is by no means demonstrated), defendant did not suffer the requisite prejudice. Consequently, there was no cumulative prejudicial impact in this case. (See People v. Bunyard (1988) 45 Cal.3d 1189, 1236 [where each of several errors were "harmless when considered individually. Their cumulative effect did not prejudice defendant"].)
DISPOSITION
The judgment is affirmed and the writ of habeas corpus is denied.
We concur:
Kline, P.J.
Lambden, J.