Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD160850, Frederick Maguire, Judge, considered with a petition for writ of habeas corpus.
O'ROURKE, J.
A jury convicted Michael Andrew Paris of the murder of Jeremy Hogan (Pen. Code, § 187, subd. (a), count 1), assault with a semiautomatic firearm (§ 245, subd. (b), count 3), and permitting another person to discharge a firearm from a vehicle (§ 12034, subd. (b), count 4). The jury found true allegations that in the course of committing murder, Paris personally and intentionally discharged a firearm and proximately caused great bodily injury and death (§ 12022.53, subd. (d)), and that he committed all of the offenses for the benefit and at the direction of a criminal street gang within the meaning of section 186.22, subdivision (b)(1). Paris had been charged with the attempted murder of another individual (count 2), but the jury acquitted him of the attempted murder count.
Statutory references are to the Penal Code unless otherwise indicated.
On appeal, Paris contends the trial court erred in denying his motion for new trial on grounds of his counsel's prejudicially ineffective assistance, specifically counsel's failure to (1) interview and subpoena two exculpatory percipient witnesses; (2) object to admission of a tape-recorded conversation between him and an assertedly cooperating witness; (3) object to testimony of a detective about Paris's alleged gang membership and criminal purpose; and (4) diligently prepare his defense. Paris further contends the prosecutor committed prejudicial misconduct, and the trial court erred by denying his request to sever the murder and attempted murder counts, admitting uncharged offenses without an appropriate limiting instruction, and denying his request for discovery of certain jury selection information. In his petition for habeas corpus, Paris repeats almost verbatim two of his contentions pertaining to ineffective assistance of counsel.
We reject Paris's appellate contentions, and thus affirm the judgment. We deny Paris's petition for writ of habeas corpus.
FACTUAL AND PROCEDURAL BACKGROUND
Paris does not challenge the sufficiency of the evidence of his convictions or the gang and weapon enhancement allegations, and thus the underlying facts are relevant only to assess the instant offenses for purposes of admitting prior uncharged acts and the trial court's decision not to sever the charges. We summarize the facts with these purposes in mind, in the light most favorable to the trial court's rulings. (See People v. Carter (2005) 36 Cal.4th 1114, 1148.)
The Hogan Murder (Count 1)
At about 7:34 p.m. on December 13, 2004, Jeremy Hogan was shot and killed in a drive-by shooting while he and his friend Alonzo Howell were in front of a house on Alvin Street where Matthew McClure was celebrating his birthday. Alvin Street is in the neighborhood of Emerald Hills. About a dozen people were in front of the house at the time, including some members of the "Emerald Hills" street gang. Howell heard eight or nine shots and saw a black truck driving off. Deeone Lamar Manson was at the party and also heard the shots; she saw a black truck turning around a corner speeding away. Hogan died from a gunshot wound to his head.
Two individuals who were in the black truck that day — Maurice Williams and Deondray Thomas — testified that Paris shot Hogan. Williams and Thomas both entered into agreements with the District Attorney's office. According to Williams, earlier that day, he, Thomas and Paris had decided to go to the beach to smoke marijuana. Williams and Thomas were childhood friends who lived on Cardiff Street in a "Skyline" gang neighborhood, and Williams had only met Paris a few months earlier through Thomas. Williams was a Skyline gang associate. Williams drove Paris's black truck with Paris in the front passenger seat and Thomas between them to Sunset Cliffs beach, where they smoked two "blunts" (marijuana cigars). On their way back, Paris told Williams to drive through Emerald Hills, where they ended up on Alvin Street. When he had travelled about five or six houses down, Paris stuck his upper body out of the window, said, "Fuck Emerald Hills," and fired two shots with a gun. After Paris brought his body back into the car, Williams saw that he had a revolver. Williams, who was unarmed, had not known Paris or anyone else had a gun and there had been no discussion at the beach about doing any sort of shooting. Shocked, Williams initially slowed the truck down to about 10 or 15 miles per hour, but then sped up when Paris said, "Go, go, go." He turned right onto Imperial and got back on the freeway. The next morning, Williams read in the newspaper that a person had been killed on Alvin Street.
Thomas, a Skyline gang member who spent a lot of time with Paris, related the same story about taking Paris's truck to the beach with Paris and Williams and returning via Emerald Hills. Before they left for the beach, Paris showed Thomas an old revolver that Thomas had never seen before. According to Thomas, before they turned onto Alvin Street, Paris, who was in the passenger seat, removed the gun from his waistband, stuck the upper half of his body out of the window, and fired once or twice. Thomas did not hear Paris yell anything about Emerald before shooting. The next day, Paris told Thomas he had gotten a "K" (a "kill") and seemed happy about it, and Paris later bragged about it to others, including William Trice, who testified at trial that in January 2005 Paris told him he had "killed some guy from 'Emerald.' "
Williams's Shooting and Paris's Threat
Days after Hogan's murder, Thomas, Thomas's brother, and Paris came to Williams's house and accused him of being a "snitch," resulting in an altercation in which Williams hit Paris. At about the same time, Thomas's brother and Paris tried to hide the weapon on the side of Williams's house.
A couple of months later, detectives came to Williams's house to talk to him about the murder. Williams did not want to cooperate because he feared getting in trouble with police and also with Skyline gang members. He spoke briefly with detectives outside where others driving by saw them.
In October 2005, Williams was sitting in his car when someone ran up, yelled, "Fuck you," and shot six rounds into his car, striking Williams twice in the arm. Williams later pleaded guilty to voluntary manslaughter under an agreement with the District Attorney's office. The day before he signed the agreement, he was in protective custody when someone pointed out that Paris was calling out to him from a different area. When he looked over, Paris made a talking motion with his right hand and then a slashing motion across his neck with his finger. Williams took that to be a threat because of his cooperation with authorities.
The Wilson Attempted Murder (Count 2) and Related Firearms Charges (Counts 3 and 4)
On July 10, 2005, LaDonte Wilson was standing with his father and brother outside his house on Federal Avenue when he was shot at by Thomas, who was a passenger in Paris's burgundy Cadillac. Earlier that evening, Thomas had left a party with Paris, Lloyd Dawson and fellow Skyline gang member Bernard Clemons, after drinking and smoking marijuana. Paris drove his Cadillac with Thomas behind him in the rear passenger seat and Dawson in the front passenger seat. Both Thomas and Clemons were armed. The men drove around for 20 to 30 minutes, eventually getting close to a neighborhood claimed by "Lincoln Park," an enemy gang. As they drove down Federal Boulevard, they approached a crowd and Paris said, "There is somebody out there... right over here to the left." Thomas pulled out his gun and fired five shots out the back window to "scare" the individuals. Paris, laughing, picked up speed and left. Shortly afterwards, the men were detained by police.
Prior Uncharged Acts of September 12, 2004 and September 13, 2004
At trial, the court gave the jury a limiting instruction and permitted the prosecutor to present evidence of two prior uncharged incidents involving Paris occurring in September 2004. Specifically, Wilson testified that on September 12, 2004, he was waiting in a liquor store parking lot for his cousin to get off work when Paris pulled up in his black truck with his head hanging out the window, saying "You 'Lincoln' niggers are slipping" and "Skyline." Paris also said, "I could have shot you, shot you guys." Wilson responded, "I ain't from nowhere and ain't nobody from 'Lincoln' over here, so I ain't slipping," and then walked away, feeling it was unsafe to stay. Wilson understood Paris's comment to mean Wilson was not watching his back like he should be.
The court instructed the jury as follows: "[T]his is evidence that, in the legal parlance, we say is limited as to a purpose. Okay? And so the District Attorney's about to present evidence of some behavior that they claim the defendant did, but this behavior is not charged in this case. Okay? [¶] Now, you are going to judge this evidence by a different standard than beyond a reasonable doubt. And I will give that to you at the end of the case. [¶] Now, if you decide that Mr. Paris, or the defendant, committed these uncharged acts, you may but you are not required to consider that evidence for a limited purpose, the limited purpose of deciding whether or not, one, for identity; whether or not the defendant, or Mr. Paris, was the person who committed the offenses alleged in this case is, for the second incident, which was Counts Two, Three, and Four. [¶] Count Two is the attempted murder, July 10th, 2005. [¶] Count Three is a charge of assault with a deadly firearm — assault with an automatic firearm — excuse me — on that same date. [¶] And Count Four, which is permitting another to shoot from a vehicle on that same date. [¶] So it can be used for the specific or limited purposes of proving identity or proving intent. And that is as to Count Two, that the defendant acted with the intent to kill. Because, with an attempted murder, you are going to have to be required to find beyond a reasonable doubt that there was a specific intent to kill. [¶] And you may also consider, for a third purpose, which is motive, that the defendant had a motive to commit. [¶] There were previously mentioned three charges, or four, for a common plan, that the defendant had a plan to commit those offenses charged in Counts Two, Three and Four. [¶] You are directed to not consider this evidence for any other purpose except for those limited purposes, which is, one, for identity; two, for intent; three, for motive; or four, for a common plan. [¶] Do not conclude from the evidence, from this evidence, that the defendant has bad character or is disposed to commit a crime. It's again, limited as to purpose."
The next night, Wilson was in the same parking lot when he heard multiple gunshots and was struck three times, in the right arm, right hip side, and left foot. Though Wilson never saw the assailant, at some point he told investigating detectives that Paris was involved since they had had a confrontation the previous night. According to Wilson, after the incident, Paris drove through his neighborhood multiple times in his truck, a red car and a blue truck, waving gang signs and yelling, "Skyline."
Defense Evidence
Paris presented an alibi defense through Trice's mother, Pamela Gater, her friend Tina Lassiter, and Paris's cousin's husband, Miguel Naranjo. Gater testified she saw Paris in his black truck at 5:35 p.m. on the night of Hogan's murder when he dropped off her son, and then again between 7:00 p.m. and 7:50 p.m. that night without his truck; at 7:00 p.m. she saw Paris sitting at a familiar spot in the neighborhood and invited him to her house, where he tried to watch football. She saw Paris again the next morning. Lassiter testified she talked to Gater on the evening of the murder at about 7:00 p.m. and heard Paris's voice in the background. Naranjo testified Paris arrived at his house on the evening of Hogan's murder at about 8:00 p.m. or 8:30 p.m., and left about two hours later.
I. Denial of New Trial/Claims of Ineffective Assistance of Defense Counsel
Paris contends the trial court erred by denying his motion for new trial in which he asserted, among other things, he received constitutionally ineffective assistance from his defense counsel for counsel's failure to interview, investigate or subpoena two witnesses, failure to object to a detective's testimony regarding his alleged gang membership, and general lack of diligence or active participation in his defense. Apart from challenging the denial of his new trial motion, Paris also argues his defense counsel was prejudicially ineffective for failing to object to admission of an audio recording of a conversation he had with William Trice in the back seat of a patrol car after his arrest.
A. Legal Principles
Ineffective assistance of counsel can provide a basis for granting a new trial. (People v. Fosselman (1983) 33 Cal.3d 572, 582; see also People v. Taylor (1984) 162 Cal.App.3d 720, 724.) In People v. Wallin (1981) 124 Cal.App.3d 479, the Court of Appeal addressed the appellate review standard for a claim of ineffective assistance in this context: "The trial judge is the one best situated to determine the competency of defendant's trial counsel. Where, as here, defendant is represented by different counsel at the motion for a new trial and the issue is called to the trial court's attention, the trial judge's decision is especially entitled to great weight and we defer to his fact finding power. Absent a showing of clear and unmistakable abuse, we will not disturb his decision." (Id. at p. 483; see also Fosselman, at p. 582; People v. Callahan (2004) 124 Cal.App.4th 198, 211.) In the new trial context, "[s]ince it is the trial court's function in the first instance to assess witness credibility and resolve conflicts in the evidence, the appellate court should give great deference to the trial court's factual determinations [citation] when deciding whether there has been an abuse of discretion. However, questions of law are decided de novo by this court." (People v. Hinks (1997) 58 Cal.App.4th 1157, 1160.) Accordingly, while we defer to the trial court's fact or credibility determinations, we decide independently whether, under those circumstances counsel's performance was constitutionally adequate. (See In re Resendiz (2001) 25 Cal.4th 230, 248-249 [whether counsel's performance was inadequate and whether such inadequacy prejudiced the defense are mixed questions of fact and law generally subject to de novo review].)
A defendant claiming constitutionally ineffective representation of his defense counsel bears the burden of proving by a preponderance of the evidence both (1) that counsel's performance was deficient, i.e., that the representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been more favorable to the defendant, i.e., a probability sufficient to undermine confidence in the outcome. (People v. Cunningham (2001) 25 Cal.4th 926, 1003; In re Ross (1995) 10 Cal.4th 184, 201; see also Strickland v. Washington (1984) 466 U.S. 668, 688, 694 (Strickland).)
To prevail on such a claim on direct appeal, the appellate record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission. (People v. Ray (1996) 13 Cal.4th 313, 349; People v. Cunningham, at p. 1003 [claim of deficient performance of counsel on appeal must be based on the four corners of the record].)
B. Investigation Relating to Witnesses McClure and Craig
Paris argues his counsel was ineffective for failing to contact, interview or subpoena Matthew McClure and Dontaye Craig, who Paris characterizes as percipient witnesses with exculpatory information concerning the Hogan murder. He maintains his counsel's failure to interview or investigate either McClure or Craig "cannot rationally be argued as a reasonable tactical choice." We disagree.
"In Strickland[, supra, 466 U.S. at pp. 690-691], the Supreme Court specifically addressed counsel's duty to investigate and made clear courts should not equate effective assistance with exhaustive investigation of potential mitigating evidence: '[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.' [Citation.] Concomitantly, the high court has recognized that valid strategic choices are possible even without extensive investigative efforts." (In re Andrews (2002) 28 Cal.4th 1234, 1254.)
As we shall explain, the record establishes that Paris's counsel did undertake a reasonable investigation in part by reviewing McClure's and Craig's statements to police, and based on those interviews had reasonable tactical reasons for declining to further investigate or conduct additional interviews of those individuals.
1. Matthew McClure
Paris's trial counsel, Jan Ronis, testified at the hearing on Paris's new trial motion that he had reviewed three statements given by McClure to police about the Hogan incident and found nothing helpful to Paris's defense. According to Ronis, McClure was uncooperative and had told police he had not seen anything, did not know about the case, and did not want to get involved. Ronis also testified McClure had stated he was high on both alcohol and marijuana at the time of the incident. Ronis testified that in his professional experience, McClure's presence at trial would not have assisted the defense, and it may have hurt the defense due to McClure's prior felony conviction, his three inconsistent statements to police, and his statement that he had heard "Mike" — a likely reference to the defendant, Michael Paris — was responsible.
Ronis's testimony is supported by the record, which includes the reports of McClure's interviews. In opposition to Paris's new trial motion, the People attached a detective's report of statements taken from Matthew McClure on three occasions: the day of the incident (December 13, 2004), December 27, 2004, and September 26, 2006. On December 13, 2004, the investigating detective reported that McClure, who had been celebrating his 18th birthday at the time of Hogan's murder, told him he could not recall who was present because he was "fucked up over my homeboy getting wasted and I'm still fucked up from my drinking. I was got [sic] pretty fucked up." McClure repeatedly told the officer that while he saw a car coming down the street at normal speed with its high beams on, "[t]he headlights were blinding me" and he "couldn't see shit" or tell "what kind of car it was or anything else." He then heard gunshots, covered his head and lay on the ground. According to the officer, McClure still appeared to be under the influence of alcohol and marijuana, and he was emotionally upset at the murder of his friend. On December 27, 2004, the detective returned to interview McClure. He reported McClure became hostile, agitated and uncooperative, and refused to say anything except, "Everyone knows who did it," and he had heard three names, one of which was "Mike." According to the officer, McClure walked away and terminated the interview. During the last interview, McClure was incarcerated. The officer reported that on that occasion, McClure repeated that he had not seen anything; that he was "drunk and smoking PCP" and "didn't see what happened." McClure denied hearing any rumors or street talk about the killing, and denied knowing anybody by the name of Michael Paris. The detective then concluded the interview.
Ronis testified that when he later met with Paris about McClure, Paris gave him a short note stating that McClure was willing to help out in his defense and testify Paris was not present at the time of the shooting. The note did not say anything about McClure recalling that the shooter had a dark complexion or that he was 95 percent sure he was African-American (Paris is hispanic); nothing about the note compelled Ronis to conduct a further interview of McClure. Ronis advised Paris of his reservations, including the fact McClure would be severely impeached, and told him McClure would not be a helpful witness under all of the circumstances. Ronis testified that his decision to not further investigate McClure was a tactical decision that he explained to Paris. He also stated that had the note mentioned the fact that the shooter was dark-complected or African-American, he would have conducted further investigation.
In assessing a claim of ineffective assistance of counsel, " ' "[r]eviewing courts defer to counsel's reasonable tactical decisions..., and there is a 'strong presumption that counsel's conduct falls within the wide range of professional assistance.' " [Citation.] "[W]e accord great deference to counsel's tactical decisions" [citation], and we have explained that "courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight" [citation]. "Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts." ' " (People v. Stanley (2006) 39 Cal.4th 913, 954, citing People v. Weaver (2001) 26 Cal.4th 876, 925-926; see also People v. Bolin (1998) 18 Cal.4th 297, 333.) The record on Paris's direct appeal reveals a plain and reasonable tactical purpose for counsel's decision to forego further investigation of McClure, namely, to avoid McClure's severe impeachment and potential detriment to Paris's case. We cannot say Paris's counsel was ineffective because the record does not disclose the "lack of a rational tactical purpose for the challenged act or omission." (People v. Ray, supra, 13 Cal.4th at p. 349.)
Our conclusion is not affected by Paris's inclusion in his new trial motion of a January 24, 2008 declaration from McClure in which McClure averred he did not know the shooter's identity but was "confident" he had a dark complexion and was "95% sure he was black." McClure handwrote on the bottom of the declaration (after the statement under penalty of perjury), "I knew Michael Paris before the shoting [sic] on Alvin St. and it was not him." The declaration flatly contradicts McClure's prior statements to police, the handwritten statement is not made under penalty of perjury, and the declaration does not factor into the analysis because it is matter that was not before Ronis when he made his tactical decisions. (See In re Thomas (2006) 37 Cal.4th 1249, 1257 [court considers counsel's performance from counsel's perspective, analyzing decisions based on what counsel knew or should have known at the time].) Paris provides no reason why Ronis should have known these facts; Ronis did not recall them being in the written note provided to him by Paris, which – as Paris notes – has been lost and does not appear in the record. Under the circumstances, Paris has not met his burden to show Ronis's representation was objectively deficient with regard to his investigation of McClure.
2. Dontaye Craig
In moving for a new trial, Paris argued his appellate counsel had located an affidavit showing an investigating detective had interviewed Dontaye Craig, who reported he was present during Hogan's murder and observed that the black pickup truck used by the assailants had only two, not three, occupants.
In part, police reported Craig's statement as follows: "Matthew McClure was having a birthday party. I was over there hanging out. I had crossed the street and went between two houses to relieve myself. As I was walking back, I saw a black pickup truck, medium size, going westbound on Alvin Street. I first saw its headlights and then I saw it was a black pickup truck. There were clearly two people in the truck, a driver and a passenger. The passenger is the one who fired the gun. [¶] I could tell from the muzzle flash that it came from the passenger side of the vehicle. I heard three to four shots. I did not hear anybody yelling prior to the shooting."
At the hearing on Paris's motion, attorney Ronis testified that he had read Craig's statement to police and found nothing favorable to Paris's defense; to the contrary, he felt the statement was favorable to the prosecution because Craig was one of the few witnesses able to specifically describe the vehicle used by the assailants, which matched Paris's vehicle. Ronis testified he would have interviewed Craig if he felt he had information helpful to Paris's defense; that any possible assistance Craig's statement could give was counterbalanced by his identification of the black truck.
As stated, we review Ronis's decision to forego further investigation of Craig for "reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." (In re Andrews, supra, 28 Cal.4th at p. 1254.) Doing so, we cannot say counsel's decision was unreasonable as it was based on some investigation (a review of Craig's statement to police) as well as a weighing of the pros and cons of that statement. We conclude even without more "extensive investigative efforts" (id. at p. 1254), counsel's decision was a valid strategic choice.
C. Failure to Object to Admission of Recorded Conversation with William Trice
Paris contends his counsel was prejudicially ineffective for failing to lodge objections under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) or Massiah v. United States (1964) 377 U.S. 201 (Massiah) to admission of the audiotape of his recorded conversation with Trice following Paris's arrest and invocation of his right to counsel. Paris maintains Massiah error occurred and his constitutional rights were violated because Trice was "for all intent and purpose" serving as an agent for the San Diego Police Department; that he "had by that time agreed to work for the police and try to get [him] to admit his involvement in the Hogan murder."
"In Massiah, supra, 377 U.S. 201, the United States Supreme Court held that once an adversarial criminal proceeding has been initiated against the accused, and the constitutional right to the assistance of counsel has attached, any incriminating statement the government deliberately elicits from the accused in the absence of counsel is inadmissible at trial against that defendant. [Citations.] In order to prevail on a Massiah claim involving use of a government informant, the defendant must demonstrate that both the government and the informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks. [Citation.] Specifically, the evidence must establish that the informant (1) was acting as a government agent, i.e., under the direction of the government pursuant to a preexisting arrangement, with the expectation of some resulting benefit or advantage, and (2) deliberately elicited incriminating statements." (In re Neely (1993) 6 Cal.4th 901, 915; see also People v. Coffman (2004) 34 Cal.4th 1, 67; People v. Fairbank (1997) 16 Cal.4th 1223, 1247; People v. Whitt (1984) 36 Cal.3d 724, 742 ["if an informant interrogates an accused, but acts on his own initiative rather than at the behest of the government, the government may not be said to have deliberately elicited the statements"], disapproved on other grounds as stated in People v. Marquez (1992) 1 Cal.4th 553, 578.)
"Where the informant is a jailhouse inmate, the first prong of the foregoing test is not met where law enforcement officials merely accept information elicited by the informant-inmate on his or her own initiative, with no official promises, encouragement, or guidance. [Citation.] In order for there to be a preexisting arrangement, however, it need not be explicit or formal, but may be 'inferred from evidence that the parties behaved as though there were an agreement between them, following a particular course of conduct' over a period of time. [Citation.] Circumstances probative of an agency relationship include the government's having directed the informant to focus upon a specific person, such as a cellmate, or having instructed the informant as to the specific type of information sought by the government." (In re Neely, supra, 6 Cal.4th at p. 915.)
Here, Paris's contention fails for lack of evidence demonstrating (or from which we can infer) that Trice was acting with the police under a preexisting arrangement to elicit incriminating information from Paris. Trice testified that after his arrest in January 2005, he was interviewed and told detectives he wanted to talk about what Paris said about the Emerald Hills murder. That evening, Jose Cuervo, who was then a San Diego Police Department detective, read Trice Miranda warnings and spoke with him about that incident. According to Trice, the detective did not make him any promises, nor did he agree to give Trice anything in exchange for the information, in fact Trice stated Cuervo "ma[d]e it clear [he] was getting no promises." According to Trice, at the conclusion of the interview, Trice and the detective talked about Trice's willingness to do work; he stated that meant telling the detective "everything he needed to know." Trice then testified:
"[Prosecutor]: Did you ever say [to Cuevo] that you would try to get the defendant on tape?
"[Trice]: Yes, I have.
"[Prosecutor]: And specifically, what did you want to try to get him on tape saying?
"[Trice]: What he did, how he committed the murder.
"[Prosecutor]: Did you ever follow-through with that?
"[Trice]: I tried.
"[Prosecutor]: And what happened?
"[Trice]: There was no answer."
According to Trice, before he was released from jail, he was placed into the back of the patrol car with Paris, but he did not know the vehicle was wired for audio-recording and nobody told him it had been so wired. Trice stated that the first time he learned the car was wired was earlier on the day he gave his trial testimony. Indeed, the record shows it was Paris who initiated their conversation in the police car, not Trice. Cuervo testified similarly; that when he interviewed Trice about the Alvin Street homicide, he did not make Trice any promises, but that Trice was very cooperative during the lengthy interview and stated at its conclusion that he was willing to continue to cooperate. Cuervo had no involvement in deciding whether or not Trice was arrested that day.
On cross-examination, Cuervo was asked whether he had reached an agreement with Trice to have Trice cooperate "futurely" and responded: "Well, 'reach an agreement' can mean a lot of different things. He was willing to testify and tell us who did what in exchange for nothing. So if that is an agreement, I guess you can call it an agreement." (Italics added.)
Trice's contact with police did not by itself make him a police agent. (People v. Fairbank, supra, 16 Cal.4th at p. 1248.) He may have hoped to receive some benefit in exchange for his receipt of information, but here, the record is absent any evidence that he had a prior working relationship with government agents (In re Neely, supra, 6 Cal.4th at pp. 915, 917-918), or that "authorities had encouraged [Trice] to supply information or insinuated that to do so would be to [his] benefit, or that [his] release from jail was other than in the normal course...." (People v. Coffman, supra, 34 Cal.4th at p. 68; Fairbank, at p. 1248.) Rather, this is a case where defense counsel reasonably could conclude that
" '[t]he police simply made use of [Trice's] own motivation to inform on defendant, a technique [that is] not... a knowing subversion of the defendant's right to counsel....' " (People v. Martin (2002) 98 Cal.App.4th 408, 418, quoting People v. Pensinger (1991) 52 Cal.3d 1210, 1250.)
Whether we treat the challenge as one of ineffective assistance of counsel or a substantive Massiah claim, we conclude it is without merit. Since there is no evidence police reached an arrangement with Trice to elicit Paris's statements in the back of the police car, Paris's trial attorney did not render ineffective assistance by failing to advance a futile or meritless objection to the recording on this ground. (People v. Price (1991) 1 Cal.4th 324, 387.)
D. Failure to Object to Testimony of Gang Expert
Relying primarily on Crawford v. Washington (2004) 541 U.S. 36, 68 (Crawford)and to some extent United States v. Ordonez (9th Cir. 1984) 737 F.2d 793, Paris argues his counsel was constitutionally ineffective by allowing a prosecution gang expert to testify without objection that Paris was a documented Skyline gang member based on a San Diego Police Department "gang documentation report." Paris argues the evidence was "testimonial hearsay and inadmissible opinion evidence" that violated his federal constitutional right to confront and cross examine witnesses, namely, the sources of the information within the gang documentation report.
By the time of Paris's trial, this sort of confrontation clause challenge to a detective's expert testimony had been rejected by our Division Two colleagues in People v. Thomas (2005) 130 Cal.App.4th 1202, 1210 and People v. Fulcher (2006) 136 Cal.App.4th 41, 56-57, and it has since been addressed by the appellate courts in People v. Ramirez (2007) 153 Cal.App.4th 1422, 1427 and People v. Cooper (2007) 148 Cal.App.4th 731, 746-747. These authorities confirm that the confrontation clause does not bar the use of testimonial statements " 'for purposes other than establishing the truth of the matter asserted.' " (Thomas, 130 Cal.App.4th at p. 1210, quoting Crawford, supra, 541 U.S. at p. 59, fn. 9.) Accordingly, " 'Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions.' " (Cooper, supra, 148 Cal.App.4th 731, 747, quoting Thomas, at p. 1210.) This is so for two reasons. First, the materials upon which the expert relies are not elicited for their truth but, rather, are examined to assess the weight of the expert's opinion. (Cooper, at p. 747; Thomas, at p. 1210; People v. Fulcher, at pp. 56-57; People v. Coleman (1985) 38 Cal.3d 69, 90, 92-93.) Secondly, an expert is subject to cross-examination about his or her opinions. (Thomas, at p. 1210.) It is settled that an expert may rely on hearsay in forming his or her opinion. (Evid. Code, §§ 801, 804, subd. (d); People v. Arias (1996) 13 Cal.4th 92, 184.) Under these circumstances, defense counsel's confrontation clause or hearsay objection to any of this evidence would have been overruled, and properly so. As stated, counsel cannot be ineffective for failing to make a meritless objection. (People v. Anderson (2001) 25 Cal.4th 543, 587.)
Paris's reliance on United States v. Ordonez is unavailing. Ordonez involved the use of ledger entries that were admitted into evidence over the defendant's objection under the co-conspirator exception to the hearsay rule. (United States v. Ordonez, supra, 737 F.2d at p. 797.) The trial court did not give any instructions limiting the use of this evidence, and experts testified that most of the ledger entries were made by at least four unidentified persons and were business records recording cocaine transactions, including a transaction in which Ordonez purchased and possessed cocaine with the intent to distribute it. (Ibid.) No other evidence was used to support the drug charges against the defendant. (Id. at pp. 797-798.) The Ninth Circuit held the admission of the ledger entries as direct evidence against the defendant was prejudicial error; that the ledgers were not admissible as admissions, statements of a co-conspirator, or as trustworthy business records, and that the government failed to submit evidence to satisfy the reliability requirement of the confrontation clause. (Id. at p. 806.) Here, the People did not seek to admit the materials considered by the prosecution expert as direct evidence against Paris. Instead, the testimony was offered for a non-hearsay purpose: to establish the bases for the expert's opinions. (Evid. Code, § 802 [expert witness may relate bases of opinion].) It is settled that in order to form their opinions, gang experts may rely on conversations with gang members, information obtained from victims and witnesses, as well as their personal investigations of gang-related crimes including via information from other colleagues or other law enforcement agencies. (People v. Vy (2004) 122 Cal.App.4th 1209, 1223, fn. 9; People v. Duran (2002) 97 Cal.App.4th 1448, 1463; People v. Gardeley (1996) 14 Cal.4th 605, 618-620.) Because the prosecution expert's testimony regarding the basis of his opinion was not presented for the truth of the matter asserted, Paris's Crawford challenge based on Ordonez is without merit.
E. Investigation and Preparation for Trial
Paris generally contends he suffered prejudice from his counsel's asserted failure to diligently and actively participate in the effective preparation of his defense. He argues his counsel conducted no formal investigation before December 27, 2006, eight days before summoning a jury panel, and counsel's investigator only interviewed three defense alibi witnesses. Paris maintains that as a result of the unexplained delay in interviewing the alibi witnesses, the prosecution was able to attack the credibility of Paris's alibi witnesses and his alibi defense as a "last ditch effort to try to help this defendant" that "dropped out of the sky two weeks before trial.... " Paris further argues his counsel met with him only four times while he was in custody, and spent no more than two hours discussing his case. Paris argues: "[T]rial counsel's inadequate preparation and lack of investigation resulted in his conviction because he failed to object to inadmissible and prejudicial evidence, conducted only a cursory and ineffective cross-examination of the prosecution's witnesses, and improperly presented his alibi defense."
Paris's assertions about his counsel's efforts are not supported by the record, which reveals his counsel recalled meeting with him between 10 to 15 times while Paris was in custody and spoke with him frequently on the phone, in addition to reviewing thousands of pages of discovery. Nevertheless, we have scrutinized these contentions and conclude they do not make an arguable showing of prejudice. To demonstrate prejudice, "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." (Strickland v. Washington, supra, 466 U.S. at p. 693.) Paris's prejudice argument must be premised on the assertion that all of the accomplice testimony was insufficient to support his convictions, unbelievable, or improperly admitted. But to the contrary, Thomas's and Williams's testimony was admitted into evidence and Paris does not challenge whether it constitutes substantial evidence to support his conviction for Hogan's murder. Paris's remaining ineffective assistance claims fail in view of all of the admissible evidence expressly identifying him as the assailant. He has not demonstrated that his counsel's failures "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Strickland v. Washington, at p. 686.)
Section 1111 provides that "[a] conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense...." (§ 1111.) The section defines "accomplice" as a person who is "liable to prosecution for the identical offense charged against the defendant." (Ibid.) Corroborating evidence " 'must tend to connect a defendant with the crime itself, and not simply with its perpetrators.' " (People v. Robinson (1964) 61 Cal.2d 373, 400; see also People v. Avila (2006) 38 Cal.4th 491, 562-563.) Paris does not contend that either Thomas's or Williams's testimony was insufficiently corroborated under these principles.
II. Claim of Prosecutorial Misconduct/Griffin Error
Paris contends the prosecutor overstepped the Fifth Amendment's proscription on commenting about a defendant's right not to testify and committed Griffin error (Griffin v. California (1965) 380 U.S. 609) by two statements made during closing arguments. The first occurred when the prosecutor reminded the jury that Thomas, Williams and Trice talked to police and testified at trial that they had smoked marijuana, were gang members, and committed the crimes of which they were convicted. Thereafter, the prosecutor stated: "In conclusion, you have to ask yourselves, if he [Paris] didn't commit this murder, explain those statements in the back seat of the patrol car. Just explain them. Why is he after Maurice Williams? Why is he threatening Maurice Williams? Why is he threatening Maurice Williams a week before trial here, December 22nd, two weeks before trial? Why? Why is his going like this (indicating)? [¶] LaDonte Wilson had been harassed by this defendant for approximately ten months, started on September[ ] 12th[,] 2004, when they had their first confrontation, and then it ended on July 10th, 2005, when he was with his brother and father and was shot at. [¶] You saw, he didn't want to testify here. He hated being here, but he did it. And he is angry. He is angry that it had to happen, that he has to be careful and cautious when he is standing in front of his own home with his father and his brother. He has to watch his back for cars. Don't go to the corner store, get down, run. That is how he had to live his life, because this defendant chose to run around his neighborhood and look for trouble." Paris asserts that in making these statements, the prosecutor explicitly or implicitly criticized his decision not to testify and denied him a fair trial.
In her rebuttal argument, the prosecutor stated: "Deondray Thomas, Maurice Williams, and William Trice, yes, they all talked to the police, and I talked to you about that in my opening statement. They took the stand. They testified, and they answered questions, whether they were asked by the D.A., myself, or whether they were asked by defense counsel. And you had an opportunity to listen to them. They admitted they smoked weed. They admitted they're gang members. They admitted that they committed these crimes that they were involved in and they were convicted of it, and they came forward with all of that."
The People respond that Paris did not preserve this issue for appellate review because his counsel did not contemporaneously object to the challenged comments or request an admonition to the jury. Failure to object forfeits the claim of misconduct unless the objection and/or request for admonition would have been futile, or the admonition would have been insufficient to cure the harm occasioned by the misconduct. (People v. Panah (2005) 35 Cal.4th 395, 462.) Here, the trial court expressly asked the attorneys to "avoid interrupting each other" immediately before closing arguments commenced, the day before the prosecutor made the challenged statements in her rebuttal summation. Defense counsel made his Griffin objection immediately after the jury had exited the courtroom to deliberate. We question the requirement for a contemporaneous objection under these circumstances, but we need not decide the point, for we conclude the prosecutor's comments do not rise to the level of Griffin error or other misconduct.
"In Griffin [v. California, supra, 380 U.S. 609 ], the United States Supreme Court held that the privilege against self-incrimination of the Fifth Amendment prohibits any comment on a defendant's failure to testify at trial that invites or allows the jury to infer guilt therefrom, whether in the form of an instruction by the court or a remark by the prosecution." (People v. Clair (1992) 2 Cal.4th 629, 662.) In People v. Hughes (2002) 27 Cal.4th 287, the California Supreme Court explained that "it is [Griffin] error for a prosecutor to state that certain evidence is uncontradicted or unrefuted when that evidence could not be contradicted or refuted by anyone other than the defendant testifying on his or her own behalf. [Citations.]... [I]t is error for the prosecution to refer to the absence of evidence that only the defendant's testimony could provide." (People v. Hughes, at pp. 371-372; accord, People v. Bradford (1997) 15 Cal.4th 1229, 1339.)
Griffin error may be committed by both indirect or direct comments on the defendant's failure to testify in his defense. (People v. Medina (1995) 11 Cal.4th 694, 755; People v. Guzman (2000) 80 Cal.App.4th 1282, 1288.) " 'The prohibition, however, does not extend to... such comment on the defense's failure at trial to introduce evidence that could reasonably have been expected [citation] — save only, of course, the testimony of the defendant himself.' " (People v. Sanders (1995) 11 Cal.4th 475, 528, quoting Clair, supra, 2 Cal.4th at p. 662.) Although a prosecutor may comment on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses, "[w]hen improper comment on a defendant's silence occurs, the error requires reversal of the judgment unless a reviewing court concludes the error was harmless beyond a reasonable doubt." (People v. Hardy (1992) 2 Cal.4th 86, 157 (Hardy); People v. Vargas (1973) 9 Cal.3d 470, 475 (Vargas).)
In Griffin, for example, error was found when the prosecutor commented during closing argument about "[the] things [the defendant] has not seen fit to take the stand and deny or explain." (Griffin, supra, 380 U.S. at p. 611.) Likewise, in Hardy, supra, 2 Cal.4th 86, the court found plain Griffin error by a prosecutor's comment about the defendant, "Ladies and gentlemen,... ask yourself the question, why doesn't [the defendant] just come out and say, I didn't do it, it was Cliff." (Id. at p. 154.) In Vargas, supra, 9 Cal.3d 470, Griffin error occurred when the prosecutor commented that there had been no " 'denial' " that the defendant was at the scene of a crime where use of that term "connote[d] a personal response by the accused himself" because "only defendant himself could 'deny' his presence at the crime scene." (Vargas, at p. 476.)
On the other hand, Griffin error did not occur when a prosecutor during rebuttal summation referred to the presence in the defendant's apartment (shared with his father and others) of ammunition and weapons consistent with those used in a robbery, and stated, " '... there's been no explanation as to what the holster was doing in the father's closet, what the seven and a half pellets were doing in the father's closet.' " (People v. Sanders, supra, 11 Cal.4th at p. 528.) The high court held the defendant's Griffin claim lacked merit: "The prosecutor referred to the absence of evidence, not to the defendant's failure to testify" and "[o]ther members of the household... might logically have testified about the contents of the closet...." (Sanders, at p. 529.) Thus, in context of all of the evidence, the prosecutor's comment was not reasonably likely to be misconstrued or misapplied by the jury as referring to the defendant's own failure to testify. (Ibid.)
Here, the prosecutor's challenged remarks are plainly read as asking the jurors to reconcile for themselves ("In conclusion, you have to ask yourselves... ") whether there was an innocent explanation for Paris's threat to Williams and comments to Trice in the patrol car, suggesting there was no such explanation for Paris's words and actions. We are not persuaded by Paris's attempt to characterize this comment as a challenge to him to "take the witness stand and 'explain' [his] verbal and non verbal statements he made to William Trice, Deondray Thomas and Maurice Williams." In reading the entirety of the remarks, the prosecutor in no way suggested that the jury should look to Paris for an explanation. Rather, in our view, this is the kind of fair comment on the state of the evidence (or the absence thereof) that occurred in Sanders rather than a suggestion that the prosecution's evidence was not, or should have been, personally contradicted by Paris.
To the extent Paris argues the prosecutor sought to compare his silence with the willingness of Thomas, Trice and Williams to testify akin to what occurred in People v. Guzman, supra, 80 Cal.App.4th 1282, we likewise cannot agree. Here, the prosecutor followed her comments about Thomas, Trice and Williams by telling the jury that Paris sought to discredit them due to their cooperation with the District Attorney's office. The prosecutor acknowledged that they were not necessarily upstanding persons, and that the jury might disagree with the fact that they had severed ties with their families and received deals. The comments were directed to the credibility of these witnesses, and not a comparison between those witnesses and Paris as done in Guzman. (See Guzman, at pp. 1286-1290.) The prosecutor's comments about those witnesses and her request to jurors to explain Paris's statements for themselves is separated by 23 pages of transcript. It is not reasonably likely that the jury construed these widely separated comments regarding the main prosecution witnesses and Paris as a reflection on Paris's silence.
Assuming arguendo there was Griffin error, the error was harmless. The jury was instructed as follows: "A defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way." (CALCRIM No. 355.) "Jurors are presumed to understand and follow the court's instructions." (People v. Holt (1997) 15 Cal.4th 619, 662.) Paris has not pointed to evidence or any matter in the record rebutting that "crucial assumption." (People v. Yeoman (2003) 31 Cal.4th 93, 139.) This, combined with the strong evidence of Paris's guilt, convinces us beyond a reasonable doubt that the jury would have convicted him of his offenses even if the prosecutor had refrained from making her challenged comments. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Hardy, supra,2 Cal.4th at p. 154.)
III. Motion to Sever Murder and Attempted Murder Counts
Before trial, Paris moved under section 954 to sever the charge of Hogan's murder and related charges from the charge of LaDonte Wilson's attempted murder and its related charges. Paris argued evidence of either charge was not admissible to prove identity in the trial of the other under Evidence Code section 1101, subdivision (b), because the two incidents did not bear the requisite similarity to each other, the evidence of the murder charge with its alleged gang involvement was extremely prejudicial, and denial of his request would join the weak attempted murder case with the strong murder case, which was especially inflammatory because it qualified for capital punishment. Paris further argued that other factors favoring joinder were not applicable to the murder and attempted murder charges. The trial court denied the motion, identifying numerous instances of commonality in the charged offenses including a common witness, the fact both vehicles used in the offenses were attributed to Paris and traveled into rival territory, and a shooting occurred from the vehicles.
Section 954 provides in part: "An accusatory pleading may charge... two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated." The statute also provides that "the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately." (§ 954.)
Evidence Code section 1101 provides: "(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act. [¶] (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness."
On appeal, Paris admits the charges are of the same class and therefore meet the statutory requirements for joinder. However, he contends the trial court's order denying severance was a prejudicial abuse of discretion that denied him a fair trial. Specifically, Paris argues evidence of his involvement in the Wilson attempted murder was much stronger than the "extremely weak" evidence of the identity of the perpetrator of the Hogan murder, and evidence of the Wilson shooting was also highly prejudicial due to surrounding evidence of an "ongoing feud" between him and Wilson. According to Paris, the court's order permitted the prosecutor to introduce inadmissible character evidence against him resulting in the jury concluding he had the propensity to commit Hogan's murder. For these reasons, and the assertedly dissimilar nature of the offenses, Paris maintains the Wilson offense was not cross-admissible in the Hogan trial under Evidence Code section 1101.
Citing People v. Kipp (1998) 18 Cal.4th 349, the People respond that evidence of the Wilson attempted murder was cross-admissible on the issue of intent, which requires the least degree of similarity to establish relevance. They correctly point out that in the context of proving intent, the evidence underlying each charged offense must be sufficiently similar to support an inference Paris probably harbored the same intent in each instance. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1222-1223 (Alcala).) They argue that even if cross-admissibility did not exist, Paris is unable to establish an abuse of discretion. We agree.
In People v. Soper (2009) 45 Cal.4th 759 (Soper), the California Supreme Court recently addressed the legal principles relevant to severance of properly joined criminal charges. (Id. at pp. 771-772.) In this context, the prosecution is entitled to join offenses, and the burden is on the party seeking severance to clearly establish that there is substantial danger of prejudice requiring that the charges be separately tried. (Id. at p. 773.) To establish error in a trial court's ruling declining to sever properly joined charges, the defendant must make a clear showing of prejudice to establish that the trial court abused its discretion, i.e., that its ruling falls outside the bounds of reason. (Id. at p. 774.) " ' "[A] party seeking severance must make a stronger showing of potential prejudice than would be necessary to exclude other-crimes evidence in a severed trial." ' " (Ibid.) In particular, the party must deal with the countervailing considerations of conservation of judicial resources and public funds, considerations that often weigh strongly against severance of properly joined charges. (Ibid.)
Soper contrasted the analysis for properly joined charges with the analysis employed for admission into evidence of facts underlying an uncharged offense: "When the offenses are [properly] joined for trial the defendant's guilt of all the offenses is at issue and the problem of confusing the jury with collateral matters does not arise. The other-crimes evidence does not relate to [an] offense for which the defendant may have escaped punishment. That the evidence would otherwise be inadmissible [under Evidence Code section 352] may be considered as a factor suggesting possible prejudice, but countervailing considerations [of efficiency and judicial economy] that are not present when evidence of uncharged offenses is offered must be weighed in ruling on a... motion [to sever properly joined charges]. The burden is on the defendant therefore to persuade the court that these countervailing considerations are outweighed by a substantial danger of undue prejudice." (Soper, supra,45 Cal.4th at pp. 773-774, quoting People v. Bean (1988) 46 Cal.3d 919, 938-939.)
In determining whether a trial court abused its discretion under section 954, we consider the record before the trial court when it made its ruling (Soper, supra, 45 Cal.4th at p. 774), and undertake the following analysis as outlined in Soper: "First, we consider the cross-admissibility of the evidence in hypothetical separate trials. [Citation.] If the evidence underlying the charges in question would be cross-admissible, that factor alone is normally sufficient to dispel any suggestion of prejudice and to justify a trial court's refusal to sever properly joined charges. [Citation.] Moreover, even if the evidence underlying these charges would not be cross-admissible in hypothetical separate trials, that determination would not itself establish prejudice or an abuse of discretion by the trial court in declining to sever properly joined charges." (Id. at pp. 774-775.) The latter rule is codified in section 954.1. (Id. at p. 775.)
Section 954.1 provides: "In cases in which two or more different offenses of the same class of crimes or offenses have been charged together in the same accusatory pleading, or where two or more accusatory pleadings charging offenses of the same class of crimes or offenses have been consolidated, evidence concerning one offense or offenses need not be admissible as to the other offense or offenses before the jointly charged offenses may be tried together before the same trier of fact."
"If we determine that evidence underlying properly joined charges would not be cross-admissible, we proceed to consider 'whether the benefits of joinder were sufficiently substantial to outweigh the possible "spill-over" effect of the "other-crimes" evidence on the jury in its consideration of the evidence of defendant's guilt of each set of offenses.' " [Citations.] In making that assessment, we consider three additional factors, any of which — combined with our earlier determination of absence of cross-admissibility — might establish an abuse of the trial court's discretion: (1) whether some of the charges are particularly likely to inflame the jury against the defendant; (2) whether a weak case has been joined with a strong case or another weak case so that the totality of the evidence may alter the outcome as to some or all of the charges; or (3) whether one of the charges (but not another) is a capital offense, or the joinder of the charges converts the matter into a capital case. [Citations.] We then balance the potential for prejudice to the defendant from a joint trial against the countervailing benefits to the state." (Soper, supra, 45 Cal.4th at p. 775.)
Here, Paris's singular focus on the element of identity (which requires the greatest degree of similarity for purposes of cross-admissibility, see Soper, supra, 45 Cal.4th at p. 776, fn. 9) does not eliminate the prosecution's burden to establish the element of intent to kill beyond a reasonable doubt. (Soper, at p. 777, citing Alcala, supra, 43 Cal.4th at p. 1223.)As the People point out, in both instances, Paris was accompanied by Deondray Thomas and other Skyline gang members, Paris's vehicles were used, shots were fired from a moving vehicle, and rival gang territories were involved (Lincoln, in the case involving Wilson's attempted murder, and Emerald Hills in the Hogan murder). We agree with the People that evidence of the facts and circumstances surrounding the attempted murder charge against Wilson had sufficient similarity to be relevant and thus cross-admissible at hypothetical separate trials on the issue of intent under the lower standard of similarity governing evidence offered for that purpose. (Alcala, supra, 43 Cal.4th at pp. 1222-1223.) As Soper explains and Paris concedes, a determination of cross-admissibility normally dispels an inference of prejudice. (Soper, at pp. 774-775, quoting Alcala, at p. 1221.)
We reject Paris's additional arguments seeking to demonstrate prejudice, which presume the evidence in the Hogan murder was much weaker than in the Wilson matter, and posit — without any showing — that the Wilson evidence inflamed the jury's passions and prejudice. Paris maintains the Wilson evidence amounts to inadmissible character evidence that the jury used to find his propensity to commit the Hogan murder seven months later. Absent a sufficiency of the evidence challenge, we see no reason to discount the evidence supporting Paris's identity as the perpetrator of the Hogan murder merely because it consisted in part of testimony from two accomplices. In any event, the People presented additional evidence: other eyewitness testimony identifying Paris's black truck, Trice's testimony in which Paris told him he had killed a man from Emerald, and Williams's testimony that Paris threatened him, suggesting consciousness of guilt. Further, we cannot say evidence of the September 2004 uncharged acts was any more inflammatory than evidence that Paris shouted out a gang-related epithet and shot Jeremy Hogan in the head during a drive-by shooting, killing him instantly. In our view, the "evidence related to each charge was independently ample to support [Paris's] conviction of both crimes." (Soper, supra, 45 Cal.4th at p. 784, fn. 14.) Further, as in Soper, the jury was instructed that, "Each of the counts charged in this case is a separate crime. You must consider each count separately and return a separate verdict for each one." In our view, these instructions "mitigated the risk of any prejudicial spillover" (ibid) and the jury was in fact able to follow the instructions and compartmentalize the evidence as demonstrated by the jury's verdict acquitting Paris of Wilson's attempted murder. Having considered the proceedings as a whole, we cannot conclude Paris's trial was grossly unfair or that he was denied due process of law as a result of the trial court's order declining severance.
IV. Admission of Evidence of Uncharged Acts
Paris separately contends the trial court erred by admitting the two September 2004 uncharged offenses, specifically, Paris's threats to Wilson on September 12, 2004, stating, "You Lincoln niggers are slipping"; "Skyline"; and "I could have shot you, shot you guys," and evidence that Wilson was shot the next day. He argues the evidence portrayed him as having a propensity to kill, and the court "opened the door" for the jury to improperly consider the evidence by giving a limiting instruction only referring to counts 2 through 4, as opposed to specifically instructing the jury to disregard that evidence on the count 1 murder charge. He maintains the court failed to analyze the prejudicial impact of the evidence and "allowed an inference to be made that defendant was a bad character and that he was predisposed to commit the crime of murder against Jeremy Hogan."
Paris does not challenge the probative value of the uncharged acts on the issues of motive, identity and intent as to the Wilson attempted murder, and we have already rejected Paris's arguments challenging the trial court's refusal to sever the count 1 murder from the remaining counts relating to Wilson. The sole question is whether admission of that evidence was prejudicial error with regard to the Hogan murder. On that point, we agree with the People that on this record Paris's contention is forfeited, as there is no indication his counsel sought to exclude the evidence as inadmissible or prejudicial with respect to count 1, or that counsel challenged the trial court's limiting instructions as incomplete or inadequate. (See Evid. Code, § 353 ["A verdict or finding shall not be set aside... by reason of the erroneous admission of evidence unless:... There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion"]; People v. Seijas (2005) 36 Cal.4th 291, 302; People v. Coffman, supra, 34 Cal.4th at p. 122.)
In any event, we conclude Paris has not established an abuse of discretion or prejudice even if we assume error. The trial court scrutinized the prior acts evidence with great care as it was required to do under Evidence Code sections 1101 and 352 (People v. Gray (2005) 37 Cal.4th 168, 202), taking the matter under submission and issuing a lengthy explanation for its ruling. Not only did the court give a limiting instruction before admitting the evidence (see footnote 2, ante), it also instructed the jury after the close of the evidence with CALCRIM No. 375, which reemphasized that consideration of the uncharged acts was limited to the issues of identity, intent to kill, motive and common plan or scheme for the offenses of counts 2, 3 and 4. As read to the jury, the instruction in part stated, "Do not consider this evidence for any other purpose," and, "Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime." The jurors are presumed to have followed these instructions. (People v. Lindberg (2008) 45 Cal.4th 1, 26; People v. Coffman, supra, 34 Cal.4th at p. 107.) And even if the other crimes evidence had been excluded, we conclude the testimony of Paris's accomplices, other witnesses, and Trice provides compelling and abundant evidence of Paris's guilt in Hogan's murder. Paris has not shown it is reasonably probable he would have had a more favorable result absent admission of the prior crimes evidence. (Lindberg, at p. 26; People v. Watson (1956) 46 Cal.2d 818, 836.)
V. Denial of Request for Discovery of Juror Information
Paris contends the trial court abused its discretion by denying his request for discovery of specified information from the jury commissioner relating to the selection of jurors in San Diego County. He maintains he made the requisite "particularized showing" (see People v. Roddy (2007) 151 Cal.App.4th 1115, 1135 (Roddy), quoting People v. Jackson (1996) 13 Cal.4th 1164, 1194 (Jackson)) of a practice of systematic exclusion of jurors by presenting expert testimony from Dr. John Weeks, who had opined that some cognizable groups were being excluded from the San Diego County jury pool as a result of jurors who temporarily excused themselves from service who were "likely to be lower income persons." Dr. Weeks testified that the data was needed to find out "whether this is a problem or not.... Without data we simply don't know." Dr. Weeks further testified that the jury selection system was not random in part due to the policy of allowing people to self-report that they should be excused for poor English speaking skills. After stating its reasoning in length, the trial court concluded that, assuming under representation, Paris had not made a particularized showing supporting a reasonable belief that the alleged under representation of jurors was a result of practices of systematic exclusion. While it denied Paris's request for discovery "across the board," it ruled Paris was entitled to the names of jurors on the "master list" (presumably, the list of names randomly selected from DMV or voter source lists, see Code of Civil Procedure sections 197, 198).
Preliminarily, we point out that Paris does not identify with any particularity the documents he sought; he describes his requested discovery as "specified information relating to the jury selection process in San Diego [C]ounty" or "data from the jury commissioner." We reviewed Dr. Weeks's testimony at the record pages Paris cites, but the discussion contains no indication of what documents were at issue. Such lack of specificity requires us to comb the record for the background facts that could support his contention. A " 'reviewing court is not required to make an independent, unassisted study of the record in search of error' " (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115) and may treat an issue as waived "when an appellant makes a general assertion, unsupported by specific argument...." (People v. Stanley (1995) 10 Cal.4th 764, 793.) Arguably, given his cursory argument on the issue, Paris has forfeited this contention entirely.
We need not decide the forfeiture argument, because we conclude Paris's lack of specificity defeats his appellate contention on the merits. In Roddy, supra, 151 Cal.App.4th 1115, this court applied the discovery standard of Jackson, supra, 13 Cal.4th 1164 to the defendants' claim — similar to those claims made by Paris here — that they were entitled to discovery of a DMV source list so as to make a showing of systematic exclusion of certain groups. (Roddy, 151 Cal.App.4th at pp. 1137-1138.) Jackson defined this showing as requiring "a particularized showing supporting a reasonable belief that under representation in the jury pool or the venire exists as the result of practices of systematic exclusion." (Jackson, 13 Cal.4th at p. 1194.)
In Roddy, we assumed for purposes of argument that the defendants had made a sufficient "particularized showing" under Jackson and were entitled to some discovery of information regarding San Diego County's jury selection process, but explained that the mere fact such a showing was made did not necessarily entitle them to discovery of any and all information they sought. (Roddy, supra, 151 Cal.App.4that p. 1137.) Rather, we stated: "[U]pon a particularized showing by a defendant under Jackson, the trial court (or jury commissioner on its behalf, as in this case) must make a reasonable effort to produce information that is relevant to potentially verify or prove the existence of constitutionally improper under representation in the jury selection process and document the nature and extent of that under representation. [Citation.] To the extent certain information sought to be discovered is not relevant to potentially verify, prove, and/or document the under representation reasonably believed to be the result of practices of systematic exclusion pursuant to the defendant's particularized showing, the defendant is not entitled to discovery of that information under Jackson. [Citation.] In other words, although a defendant may make a sufficient 'particularized showing' under Jackson entitling him or her to some discovery of information regarding the jury selection process, the scope of that discovery right must be determined in accordance with that showing made by the defendant (i.e., there must be a nexus of relevance between the information sought and the defendant's particularized showing). [Fn. omitted.] Accordingly, a defendant does not necessarily obtain a right under Jackson to essentially audit the entire jury selection process on merely making a particularized showing supporting a reasonable belief that under representation exists as the result of a specific practice or practices of systematic exclusion." (Roddy, at p. 1138.)
Describing Dr. Weeks's testimony in that case and observing it did not support a finding that the County's merging of the DMV source list with the voter registration source lists had been improperly performed, we held in Roddy that the defendants had not established the relevance of the DMV source list to their investigation of a possible unconstitutional jury pool; it did not serve to potentially verify, prove or document the defendants' claim of under representation. (Roddy, supra, 151 Cal.App.4th at pp. 1138, 1142.)
As we have stated, in the present case, Paris does not explain what particular items of discovery he sought below, much less demonstrate the relevance of those documents to his claim of under representation. Of course, even in criminal cases, a fundamental principle of appellate practice is that an appellant must affirmatively show error and error is never presumed. (See People v. Giordano (2007) 42 Cal.4th 644, 666 ["On appeal, we presume that a judgment or order is correct, ' "[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown" ' "].) Thus, even if we assume arguendo that Paris made the Jackson particularized showing of the need for discovery, under the standards enunciated in Roddy, he has not made a showing of relevance of any particular item he sought, and accordingly has not demonstrated error in the trial court's discovery ruling.
Even if we were to consider Dr. Weeks's testimony (as summarized by Paris and reflected in the portions of the cited record), it indicates Dr. Weeks was focused on jurors who temporarily excused themselves or engaged in self-selection for purposes of excusing themselves from jury service, and challenged the manner in which the County permitted hardship excuses authorized by the Code of Civil Procedure and California Rules of Court. (Accord, Roddy, supra, 151 Cal.App.4th at p. 1142, fn. 21.) This being the case, Weeks's testimony does not establish a right to discovery. As the People point out, a county's evenhanded application of statutorily-designated excuses does not support a constitutional challenge based on the fair cross-section requirement. (People v. Howard (1992) 1 Cal.4th 1132, 1160; People v. Burgener (2003) 29 Cal.4th 833, 857, 862.) We cannot say Paris via Dr. Weeks's opinions showed a reasonable belief in a constitutionally impermissible application of the County's neutral selection criteria.
VI. Petition for Writ of Habeas Corpus
Paris's petition for writ of habeas corpus repeats almost verbatim two contentions made on appeal. He argues his counsel was constitutionally ineffective for failing to (1) object to the introduction of evidence of his patrol car conversation with Trice and (2) interview, investigate or subpoena McClure and Craig. Having concluded for the reasons stated above that Paris has not shown his counsel's performance fell below an objective standard of reasonableness, we deny Paris's petition.
DISPOSITION
The judgment is affirmed. The petition for writ of habeas corpus is denied.
WE CONCUR: HALLER, Acting P. J. IRION, J.