Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC060502A
Jones, P.J.
Dwayne Curtis Reed, II, appeals his convictions of first degree murder and two counts of possession of a firearm by a felon (Pen. Code, §§ 187, 12021, subd. (a)(1)). The jury also found true the allegation that he personally used a handgun in the commission of the murder. (Pen. Code, § 12022.53, subd. (d).) He asserts prosecutorial misconduct and admission of hearsay from the victim as reversible error.
BACKGROUND
Preshooting Events
In March 2005, the victim, Charles Key moved in with his girlfriend, Shauna Williams. In June 2005, Williams met appellant, a good friend of Key. The same month Key came home with a small black gun that Williams asked him to remove from the house. Key complied with her request to remove the gun, but he put a sock full of bullets in a dresser drawer in their bedroom. At some later date she saw the gun on appellant.
On July 7, 2005, Key went to jail. He telephoned Williams and told her to ask appellant for bail money. At appellant’s instruction, Williams went to the jail, where appellant’s girlfriend had the bail money. Key was released on July 8, 2005.
Key was returned to jail on July 14, 2005. His bail was too high for Williams or any of Key’s friends to post. The same day appellant telephoned Williams to pick him up, which she did. He told her that Key would be in jail for a long time and would need a “house” to get him out of jail. Williams told appellant she was no longer “with” Key, and appellant told her that he could treat her better than Key did. Appellant and Williams drove to a spa where they had sexual relations. They returned to appellant’s residence where Williams made further attempts to obtain bail for Key before going home.
While Key was in jail the second time, appellant called Williams several times asking to retrieve the bullets in the sock. Williams did not return the bullets because Key had instructed her not to. Also while Key was still in jail Williams told Key about the spa incident with appellant. She and Key reconciled while he was in jail.
Williams, Key, and appellant had a three-way telephone conversation while Key was in jail the second time, although appellant was unaware that Williams was on the line. Key asked appellant why appellant was “disrespecting” Key, chastised him for not taking care of “Angela and the kids,” and instructed him to leave Williams alone. Appellant replied that whatever Williams had told him was not true. Key answered, “I’m gonna see you when I get out,” to which appellant responded, “You’re gonna choose a bitch over me?”
The record does not identify “Angela” or “the kids.” According to the presentence report, in the summer of 2005 appellant had one child and Key had two children.
While Key was in jail the second time, appellant went to the store where Rusheen Raji worked. Raji had previously met appellant a few times. At appellant’s request they met during her break. Appellant told Raji that “he [appellant] ain’t cool with [Key] no more and he’s going to deal with him when he gets out, he’s going to deal with him in the street.” Using very strong and derogatory language, he also said Key owed him money, and that he had been like a brother to Key. Appellant told Raji that Key did not care about her; he cared about the woman with whom he had another child. Appellant asked Raji for her telephone number and said he would take care of her. Raji thought appellant “wanted my number to get in [her] pants,” and walked away.
Raji and Key had a child together in 2000. They broke up “officially” in 2002 but remained intimate.
Key was released September 29, 2005, and returned to live with Williams.
The Shooting
The King Community Center (Center) is a public park and recreation facility in San Mateo. North Eldorado Street, which runs north/south, and Monte Diablo Avenue, which runs east/west, form the southwest corner of the park. On October 5, 2005, at approximately 3:15 p.m., appellant was talking to a group of people in the park in the vicinity of the picnic tables and the bleachers. Derente Tanksley and Shawn McKnight were part of the group. Appellant was wearing a black and white sweat suit with a hood. Key got out of a car that pulled alongside the park, walked into the park and talked to appellant. Appellant then left the park, walking toward North Eldorado. After talking to the same group of people, Key walked toward the corner of the park where there is a fence and a garbage can. He sat on the fence drinking a soda. A few minutes later, Tanksley saw appellant on North Eldorado. He had the hood of his sweatshirt up and a bandana across his face. Tanksley thought appellant “was joking” by wearing this clothing because it was a hot day. Tanksley saw appellant walk up to Key, pull out a gun from one pocket and a clip from the other pocket and shoot Key several times. When Key turned to run away, appellant shot him again in the back. Tanksley telephoned his mother immediately to say Key had been shot, but he did not tell her the name of the shooter. He saw appellant walk casually toward the 100 block of North Eldorado, which runs south from Monte Diablo Avenue. When appellant reached North Eldorado, he began to jog.
Shawn McKnight saw appellant, whom he knew to be a friend of Key, talking to Key and he then heard shots. He saw Key fall to the ground and saw appellant, who was wearing a black sweatsuit, jog away south on North Eldorado.
Appellant’s girlfriend, Moishey Lane, lived at the time in a duplex at 126 North Eldorado.
Willie Alfred, Jr., was standing in front of a church on North Eldorado across the street from the Center when he saw a man wearing a “big, fluffy” black and white coat walking casually along North Eldorado on the Center’s side of the street toward the playground. He caught Alfred’s attention because he was wearing a coat with the hood up and a bandana mask over his face on a warm day. Alfred could not see his race. Alfred heard shots, looked toward the playground, and saw the man in the coat shooting. He saw another man fall down, saw the man in the coat shoot the fallen man again, then turn and walk back the way he had come, south on North Eldorado. After approximately 20 feet, the man in the coat began to jog until he went into the backyard of a house in the middle of the 100 block of North Eldorado. Alfred yelled at the man, “Why did you do this?” Alfred does not know appellant.
Larera Ford, who lived at 143 North Eldorado, heard the shots and the shouting. She saw a man with a black hooded sweatshirt jump the fence of the house next door to 126 North Eldorado. She had seen appellant with Moishey Lane and was sure he was the man who jumped the fence, although she could not see his face.
Sherese Seaman was sitting in a parked car at the North Eldorado/Monte Diablo intersection when she saw a person walking north on North Eldorado alongside the park. He caught her eye because he was wearing a black hooded jacket on a warm day. As she was looking at a newly-purchased CD she heard four or five “pops.” She looked up to see the man in the hooded jacket walking casually south on North Eldorado. The jacket had some kind of white writing or symbol on the back. The man broke into a jog and disappeared on the even-numbered side of the 100 block of North Eldorado, the same side as her car. She did not see his face.
Shemira Dunson lived at 117 North Eldorado. She was standing in front of her house when she saw a man wearing black sweatpants and a black hooded sweatshirt coming out of the driveway of a duplex across the street. He had a covering on his face. The sweatshirt had silver and white on it. His left hand was underneath the sweatshirt. He “trotted” north toward the Center and two minutes later came “sprinting back” on the same side of the street. He went between two houses that are nearer to the Center than is the duplex from which he had come out before going to the center. His hands were in the same position as when he went toward the Center. He was African-American, about six feet tall, of average build. A few minutes later Dunson saw “a lot” of police officers at the Center. She did not see the man in the black sweatsuit again.
Larera Ford described the layout of the 126 North Eldorado duplex to the police and suggested they look for appellant in its attic. The officers directed the occupants of 126 North Eldorado, including Moishey Lane, to vacate the duplex. They found appellant in the attic hiding under some insulation. He was wearing jeans and a T-shirt. The police obtained a warrant to search the duplex. They retrieved a .25 caliber Baretta with the serial number scratched out in some bedding in the garage; it contained a magazine but no bullets. In a bedroom of the duplex they found a California drivers’ license, credit card, cable television bill for 126 North Eldorado and other documents in appellant’s name. In the same room between the bed’s box spring and mattress they found a black and white jacket bearing the number “32,” a pair of pants, and an unloaded shotgun. They found a silver leather jacket in another room. They found a black scarf near the wooden fence at 130 North Eldorado and a small brown holster in the backyard of 130 North Eldorado.
Shawn McKnight identified appellant as the shooter at a photo lineup. Derente Tanksley identified appellant in a photo lineup different from the one shown to McKnight.
Key died of multiple gunshot wounds. Three bullets, fired from the same gun, were recovered from his body. Five spent shell casings from a semiautomatic gun were found at the shooting site. According to a ballistics expert they all came from the semiautomatic gun found at 126 North Eldorado, as did the three bullets recovered from Key’s body. Photos of the scene where Key was shot showed a green plastic soda bottle in the near vicinity. The soda bottle itself was not collected as evidence.
A DNA analysis of the sweatshirt and pants found at 126 North Eldorado showed appellant as a major contributor to the DNA.
After Key’s death, Shauna Williams gave the police the sock of bullets from her house. It contained about 25 loose .25 caliber bullets. She identified the gun in a photo the police showed her as the gun Key brought home in June 2005.
Defense
Appellant testified in his own behalf. He, Key, and Deshaune Johnson “hung out” together between April and June 2005. In late June 2005, Key and Johnson had a physical altercation.
Appellant’s primary residence was in San Francisco, but he kept some of his belongings at Moishey Lane’s house, paid the cable bill, and slept in her bedroom. He was at her house on the afternoon of October 5, 2005. He walked with her little brothers to the Center where he saw some acquaintances, and returned to Lane’s house. Johnson appeared at the door, asked if he could “chill,” and told appellant he would be right back. Johnson was wearing a black sweatsuit with the number "25” on the back. Four or five minutes later appellant heard some shots, then heard the screen door of 126 North Eldorado slam. Johnson had returned. He told appellant he had “popped him,” and asked appellant to hide a gun. Appellant told Johnson to take the gun and leave. Appellant went into another room to attend to a baby. When he returned, Johnson was gone but a holster was on the bed where Johnson had been sitting. Appellant threw the holster over a fence toward 130 North Eldorado. He later found a gun and clip between a television and a dresser and hid them in some bedding in the garage. He got scared when the police came to the door and hid in the attic. He had been wearing jeans and a T-shirt all day.
Appellant is a light-skinned African American; Johnson is a dark-skinned African American. Appellant did not know Moishey Lane’s whereabouts at the time of trial.
DISCUSSION
I. Prosecutorial Misconduct
Appellant contends that the cumulative effect of the prosecutor’s numerous acts of misconduct deprived him of a fair trial.
The standard of conduct for a prosecutor is well-settled. Prosecutors may use all legitimate means to persuade a jury; while they “ ‘may strike hard blows, [they are] not at liberty to strike foul ones.’ ” (In re Sakarias (2005) 35 Cal.4th 140, 159, citing Smith v. Groose (8th Cir. 2000) 205 F.3d 1041, 1049, quoting Berger v. United States (1935) 295 U.S. 78, 88.) A prosecutor commits misconduct by using deceptive or reprehensible methods to persuade the jury. (People v. Frye (1998) 18 Cal.4th 894, 969.) Even if a prosecutor commits misconduct, reversal is warranted only if the misconduct was prejudicial. (Id. at p. 979; People v. Bell (1989) 49 Cal.3d 502, 538.) We address appellant’s individual claims seriatim.
The People assert that appellant waived the right to make many of his claims on appeal because, as to most claimed instances of misconduct, he failed to object or seek an admonition. Generally, a defendant may not complain of misconduct on appeal unless he made a timely objection to the misconduct, on the same ground as he urges on appeal, and requests the jury be admonished to disregard the impropriety. (People v. Ayala (2000) 23 Cal.4th 225, 284.) Our review of the record discloses that defense counsel objected more often than the People suggest. In any case, a failure to object leads almost invariably, as it has here, to a claim of incompetence of counsel, a claim which, assuming an objection was warranted, necessarily requires the appellate court to evaluate the harm of the misconduct in any case. (See People v. Frye, supra, 18 Cal.4th at pp. 979-980.) For the sake of expediency, we will bypass the People’s waiver assertions.
a. Failure to Provide Discovery
(1) McKnight Conviction
The prosecutor provided defense counsel a “rap sheet” for Shawn McKnight, one of the witnesses present at the Center during the shooting, on May 25, 2006; it showed McKnight’s pending charge for a San Mateo robbery. Appellant’s trial began on May 30, 2006. On the morning of June 9 McKnight testified on direct examination as a prosecution witness that he was currently awaiting sentencing on a felony to which he had pled no contest. He also testified that he had not been promised anything in relation to his own case in exchange for his testimony in the present case. Before cross-examination, outside the jury’s presence, defense counsel informed the court that they did not know of McKnight’s conviction until McKnight testified. The prosecutor informed the court that McKnight was on convicted May 15, 2006. She explained that she was unaware of the conviction when she provided defense counsel with the rap sheet, which is updated by the Department of Justice after it receives all pertinent papers following a defendant’s sentence. On defense counsel’s consent that the delay would be adequate time, the court deferred McKnight’s cross-examination until after the lunch recess in order to allow defense counsel to review the McKnight file. During cross-examination McKnight testified that he understood his “deal” from the district attorney for his no contest plea was “a county year.”
Appellant was represented by two attorneys, William Welch and Laurie Savill. For convenience we shall use plural pronouns when referring to defense counsel.
(2) Recordings of Johnson and Cortez Police Interviews
The defense rested on June 15. On June 16, defense counsel “put something on the record about discovery.” They informed the court that they asked the prosecutor on June 15 for “the recording” of Deshawn Johnson who would be testifying on June 16 as a rebuttal witness. They asserted that the recording should have been provided to them as soon as it could have been prepared; given the prosecutor’s continuing discovery obligation to provide any recordings, they should not have had to ask for it.
The reference was apparently to a recording of a police interview with Johnson on June 1, 2006. Although not entirely clear, the prosecutor had apparently provided defense counsel a prompt report of this telephone interview.
Defense counsel also complained they did not receive the recording of a June 1 telephone conversation between defense witness Iris Cortez and the police until the evening of June 15, after Cortez completed her testimony on June 14 and had been released from subpoena. Defense counsel argued that the recording constituted a consistent statement with Cortez’s testimony on the stand that she did not want to talk to the police because they called her at work, contrary to the prosecutor’s suggestion that she was uncooperative with the police. The prosecutor responded that a report of the Cortez telephone conversation was provided to the defense immediately, and it fairly characterized the conversation.
The court remarked that the recording itself was “relatively inconsequential” in an evidentiary sense because it did not add anything to the report. The court did not comment on defense counsel’s tardy receipt of the Deshawn Johnson recording.
(3) GSR Test Results
On Monday morning, June 12, 2006, the prosecutor filed a memorandum related to the disclosure of appellant’s gun shot residue (GSR) results. The gist of the memorandum was that she was informed in December 2005 that appellant’s GSR swabs were not analyzed because it was not the policy of the Santa Clara laboratory to
which the swabs were sent to analyze samples collected more than eight hours after the offense; she expected the Santa Clara criminalist to testify as to that policy; she learned on June 8, 2006, after trial was underway, that she was misinformed about the laboratory policy and that the samples could be analyzed after all; she immediately arranged for analysis of the swabs by a Los Angeles laboratory that had previously analyzed other evidence for GSR, e.g., appellant’s clothing, the victim’s GSR, and informed defense counsel of the change in the criminalist’s expected testimony and the now-pending GSR analysis; she received the test results by telephone on Friday afternoon, June 9, 2006, and immediately provided defense counsel a written summary of the oral phone call results, which were positive for appellant’s face and hands; and the laboratory’s written report would be delivered to the prosecution late Monday morning, June 12, 2006.
In the afternoon of June 12, 2006, defense counsel objected to admission of the results on grounds of late discovery. They argued the swabs were taken in the early morning hours of October 6, 2005; the prosecution was made aware on December 13, 2005 that the Santa Clara criminalist had chosen not to test them; and there was now no time for the defense to take any steps to rebut the analysis. They also noted that the prosecution could have sent the swabs to the Los Angeles laboratory that had tested other items early in the proceedings.
The court permitted admission of the challenged GSR evidence. It found the
prosecutor had not violated the discovery statutes, based on her representation of the sequence of events. It also found she had not acted in bad faith.
(4) Analysis
None of the prosecutor’s “late” discovery manifests a deliberately calculated effort to deceive the jury. Ideally, a prosecutor would take a proactive stance in keeping abreast of the status of a pending criminal charge against a percipient witness like McKnight, particularly on a charge arising in the same county. Nevertheless, the prosecutor did alert defense counsel to the outstanding charge against McKnight. The fact that she was unaware of his May 15, 2006, conviction by no contest plea when she provided the outstanding charge information to defense counsel on May 25, 2006 is symptomatic of the practice of law in a large district attorney’s office, where every deputy cannot realistically be expected to know the current status of every case being prosecuted by the entire office. Her failure may bespeak negligence or oversight; it does not reflect intentional deception.
As to the recordings of the Johnson and Cortez police interviews, Penal Code section 1054.1 requires the prosecutor to disclose to the defendant “[r]elevant [] recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial. . . .” (Italics added.) The prosecutor provided defense counsel timely reports of the two interviews.
As to the GSR results, when the prosecutor learned that the testimony from the Santa Clara criminalist regarding the laboratory’s GSR testing policy would be different from what she expected, she promptly informed defense counsel of the difference and that she was now having the tests of appellant’s GSR swabs performed. She arranged to have the tests performed within 24 hours of learning the true policy, and she also informed defense counsel of the results immediately. “There is no general obligation to gather evidence.” (People v. Hammond (1994) 22 Cal.App.4th 1611, 1624.) The prosecutor had timely informed defense counsel about the GSR testing evidence in her possession, and when that evidence changed, she promptly provided them information of the change. Such conduct cannot reasonably be characterized as either reprehensible or deceitful.
b. Influencing the Jury by Displays of Emotion
Appellant contends the prosecutor committed misconduct by permitting emotionally-charged displays that could influence the jury.
(1) Anne Davis
Anne Davis is victim Key’s aunt. She was on the prosecutor’s potential witness list. When the prosecutor informed defense counsel she was not planning to call Davis, defense counsel informed the prosecutor that they would add her to their list and objected to having her sit in the courtroom. On June 5, 2006, approximately one week into the trial, the court agreed that defense counsel could make an in camera offer of proof on June 6 as to why Davis was such a material witness that her presence in the courtroom during the prosecution’s case would substantially impair appellant’s right to a fair trial.
Before the June 6 hearing, the prosecutor submitted a motion regarding the right of a victim’s family to attend a trial, pursuant to Penal Code section 1102.6, subdivision (c), which generally permits two members of the immediate family of a dead victim to be present and seated at all criminal proceedings at which the defendant, the prosecuting attorney, and the general public are entitled to attend. The motion stated that Davis was Key’s only family member who wanted to be present during trial, and no family member was expected to be called as witness in the prosecution’s case in chief. The prosecutor argued that appellant failed to meet his burden of showing a substantial risk that Davis’s testimony would be influenced by remaining in the courtroom and affect his right to a fair trial.
At the beginning of the June 6 morning hearing the court observed that Davis had a statutory right to address the court on the issue of her permitted presence as Key’s next of kin. However, Davis was not at the courthouse, despite having informed the prosecutor that she would be there at 9:00 a.m. The court stated it would not be detained by her absence, and obtained the prosecutor’s representation that Davis wanted to be present as decedent’s next of kin. The prosecutor explained that Davis had played a significant role in the victim’s upbringing, and that Davis was emphatic about wanting to represent the victim’s interest, particularly after having seen appellant’s mother present in the courtroom every day of trial.
The court then conducted the in camera hearing, after which it agreed to exclude Davis from the courtroom during the testimony of enumerated witnesses and the investigating officer. Otherwise, Davis was permitted to remain in the courtroom. It gave its order outside the presence of the jury.
After some housekeeping matters, the jury returned to the courtroom and the prosecutor called Rusheen Raji, one of the enumerated witnesses. Before Raji began testifying, defense counsel asked to approach the bench, and there was an unreported sidebar conference.
When Raji finished testifying, and outside the jury’s presence, defense counsel commented that Davis was in the courtroom seated with Raji and two other members of Key’s family when the court announced its order that excluded Davis from the courtroom while Raji testified. Defense counsel continued: “As soon as Ms. Raji’s name was announced, Ms. Davis stood up and marched right out the door. And . . . the jurors that are seated in the rear row were able to watch her walk right out the door obviously.” Defense counsel asserted misconduct by the prosecutor because she called Raji while Davis was still in the courtroom, despite knowing Davis was not to be in the courtroom when Raji testified. “[The prosecutor] was using a lawful order to prejudice the defense because obviously she wanted [Davis] in the courtroom and it was only because she was being ordered out.”
The prosecutor responded that she asked Davis to leave the courtroom the moment “we called Rusheen Raji to the stand. We had a sidebar, and the court asked me to have Anne Davis stand outside.” The prosecutor denied an ulterior motive or any attempt to create any sort of drama. She observed that Davis did not make a dramatic exit but left quietly.
The court stated: “We won’t have a repeat of this in the future. I think . . . although you [defense counsel] have an interest here in seeing that the court order is properly followed, I think it’s a little bit exaggerated with regard to what happened and I didn’t believe that when Ms. Davis left the courtroom she did it in any obtrusive way such that it caused any prejudice to the defense. [¶] On the other hand, we are not going to have a repeat of this where she leaves the courtroom every time one of the witnesses that she can’t be here for is called. [¶] So I’m going to instruct you [prosecutor] make sure that she’s aware of your witnesses and that she remains outside during [the testimony of] those witnesses and doesn’t make dramatic exits when you call your witnesses. [¶] We are not going to have that. We are going to avoid any such prejudice. I think at this point there hasn’t been any prejudice, but the court is taking a precaution here to ensure that this doesn’t happen in the future.”
The prosecutor said she would comply with the court’s directive. Two more prosecution witnesses testified during the June 6 morning session without apparent incident.
At the outset of the June 6 afternoon session, before the jury returned, the court asked counsel for a description of a “commotion” that occurred just before the session was scheduled to begin. The prosecutor recited that Davis “has felt excluded from this courtroom and is in an emotional state because” of her role in rearing victim Key. Her stress level was increased because she had seen that appellant’s mother was permitted to be present during the testimony of all witnesses and because she had been added to the defense witness list, for reasons neither she nor the prosecutor understood. When the prosecutor told Davis during the lunch break that she would not be allowed to be in the courtroom when her son, Derente Tanksley, testified, Davis asked to address the court on that point, because she had promised her son she would be a support person for him. Davis, the prosecutor, and defense counsel returned to the courtroom after lunch before the jury was allowed back in the courtroom. The prosecutor presented Davis’s request to speak to the court to the bailiff. The bailiff informed the prosecutor that the court did not want to reopen “that issue” and did not want to hear from Davis. The prosecutor conveyed the bailiff’s response to Davis and also informed her that she was excluded from hearing the next two witnesses. Davis then got up and, as she left the courtroom, said in a loud voice that appellant killed her nephew. The courtroom has an inner and outer set of exit doors, separated by a small vestibule. Beyond the doors is the second floor court house corridor. Davis was unable to get through the outer doors because they were locked. She started crying and saying, “[l]et me out of here.” The prosecutor, with defense counsel next to her, unlocked the outer door. Davis went into the corridor, saying, “He killed my nephew.” The prosecutor had Detective Decker, the investigating officer, escort her out of the building immediately.
After giving this synopsis, the prosecutor referred to the statute that requires the next of kin to be present. The court responded that there had been an “elaborate” hearing on the issue, Davis had been given an opportunity that morning to address the court, but she chose not to be present at the time. “The court then made an appropriate ruling on this issue after an elaborate in camera offer from the defense. Absolutely convinced the court’s ruling was appropriate within both constitutional and statutory perimeters. [¶] You [prosecutor] are obligated to advise her of that. I’m assuming that you did. She has to follow the law just as everyone else here has to follow the law. On the one hand, I’m sympathetic to her plight as the next of kin. On the other, I’m not sympathetic if she chooses to violate the rules of this court. And I’m concerned with regard to the current circumstances as a result of her outburst.” After the prosecutor noted that Davis had been stuck in traffic, and that she was outside the courtroom within a couple of minutes of the court’s beginning the morning ex parte hearing, the court asked for defense comments.
Defense counsel concurred in the prosecutor’s description of Davis’s lunchtime behavior, adding that all the jurors were waiting in the corridor to return to the courtroom at the time. Defense counsel was concerned that the jurors heard and saw Davis’s inflammatory yelling about appellant’s having killed her nephew.
The prosecutor called Detective Decker to state what he saw and heard. Decker testified that he was waiting in the corridor to enter the courtroom after lunch when he heard banging on the inside of the locked courtroom doors and a voice saying, “Let me the fuck out of here.” Davis then came from the courtroom, yelling, “That fucker killed my nephew.” All counsel agreed that each juror and alternate should be voir dired individually as to what they heard. Some jurors heard Davis shouting, “He killed my nephew,” some saw the detective escorting Davis away, and some jurors did not hear or see anything. All jurors said the disturbance would not affect their ability to remain fair and impartial. The court concluded all jurors were credible and would be able to disregard the disturbance, that it was nonprejudicial, and therefore no further remedy was necessary. However, it extended its order so as to exclude Davis from any further proceedings unless she was called as a subpoenaed witness.
Defense counsel also commented that members of the victim’s family seemed to be trying to influence the jury by holding newspaper articles about the case while standing in the corridor. The prosecutor replied: “There has been no intention to influence this jury in any regard whatsoever. These outbursts that happened today were a result of [Davis’s] emotional state of being excluded from this courtroom, and seeing over and over again the defendant’s mother being present at every stage of the proceedings and knowing that her son [Derante Tanksley] is going to be testifying in this trial and not being able to be here. [¶] If there was an attempt to influence the jury, the statements would have been directed towards the jurors. . . . She is simply acting out of her emotions of not being able to be present in this courtroom.”
When the court expressed its concern of protecting the integrity of the trial from henceforth and what steps were necessary to prevent another outburst, the prosecutor responded: “Let me take care of the first steps of that and instruct [Davis] not to be present. If there’s any problems . . . I will certainly address them with the court well in advance. . . .” The court issued a protective order forbidding Davis to be on the second floor or in the proximity of any jurors except when called as a trial witness. It then called a brief recess to allow the prosecutor to communicate its order to Davis. Nothing in the appellate record suggests Davis failed to heed the order. After she testified she was permitted to remain in the courtroom as a member of the public.
(2) Star’s T-shirt
At the conclusion of Rusheen Raji’s testimony on June 6, 2006, she was excused, subject, at defense counsel’s request, to recall. Victim Key was the father of Raji’s daughter, Star. On June 7, the prosecutor filed a motion asking that the court permit Raji to be present in the courtroom for the balance of the trial. At the June 7 hearing on the motion, defense counsel expressed their concerns regarding her presence. “Yesterday, I observed Ms. Raji and her daughter . . . I don’t know how old she is. She’s very small. She’s adorable and a bundle of energy. She was wearing a picture that depicted her deceased father that either said Number One Daddy or Pop Star Daddy. But obviously it was designed following the death of her father. And she’s wearing it for no other reason than to influence the jurors. [¶] . . . My first concern is Ms. Raji is actively attempting to influence the jurors by using her daughter as a prop to dig into the emotions. . . . I saw her on the third floor during the lunch break [yesterday]. And had I noticed the shirt then, I would have taken it up. . . . I think if she were warned not to do something like that, then she’s not heeding warnings.”
The prosecutor responded that Raji herself had worn a shirt depicting the victim to a pretrial hearing, and been asked not to wear the shirt during trial. She added that she had not seen Star wearing the T-shirt “yesterday,” and that if defense counsel saw Star on the “third floor,” Star may have been in the child care center all day.
Allowed to speak, Raji stated that she did not know Star could not wear the T-shirt; that Star was at the day care center; and that Raji brought her out for lunch because the center is closed from noon to 1 p.m. Raji added that after court ended for the day, “Madam [the prosecutor, presumably] basically told me . . . that she wasn’t supposed to wear that. And I – I apologize.” Raji then agreed to abide by any directions given by the court regarding courthouse behavior in order to avoid any possibility of trying to influence the jury, including her or Star’s wearing clothing, buttons, badges, etc., seeking to elicit sympathy for the victim.
(3) Plaque Photograph
The prosecutor used a cart to transport her discovery, evidence, reference books, briefcase, files, etc., to the courtroom. Defense counsel objected to admission of a photograph that, they asserted, was positioned on the top of her cart in such a way that all jurors could see it. The photo depicted a wall plaque found in a room at 126 North Eldorado. The plaque contained a vulture and the inscription: “Patience, my ass. I’m going out and kill something.” The prosecutor explained it was part of a stack of photos and there was no reason it was on the top. She was not planning to introduce it in her case in chief, and whether she subsequently offered it depended on if and how appellant testified. The court instructed her to keep it out of the jury’s eyesight.
(4) “Rookie” Acts
The prosecutor called as a witness Sergeant David Ehrlich, head of the S.W.A.T. team that responded to the shooting. Asked if he prepared a report of the S.W.A.T team’s actions that day, he replied, “Yes.” The prosecutor then asked to have the report marked as “People’s No. 18--20.” Defense counsel objected on “lack of recollection” grounds. The court sustained the objection and refused to mark the report on the grounds a police report is generally inadmissible hearsay.
The prosecutor next asked Ehrlich: “In preparing this report, you have detailed all the specific times of everything that occurred throughout the day on October 5th 2005?” The court sustained defense counsel’s objection that the question was improper because the report was not in evidence.
Appellant argues that in seeking to have Sergeant Ehrlich’s report marked as an exhibit in order to establish the events on the date of the crime and the times they occurred, the prosecutor “acted as though she was an inexperienced rookie. . . .” However, appellant continues, the prosecutor was “extremely prepared and thorough [throughout] the case,” as indicated by the written motions she filed on most evidentiary issues.
(5) Analysis
These four incidents--Davis, Star, the plaque photo, and the Ehrlich questions--do not rise to the level of reprehensible or deceptive methods used to influence the jury. Nothing in the record suggests the prosecutor “set up” or encouraged any dramatic exits or outbursts by Davis or the wearing of the T-shirt by Star. That the prosecutor herself did not ensure that Davis was out of the courtroom before she actually called witness Raji to the stand may reasonably be viewed as a mere oversight, caused by the prosecutor’s preoccupation with her immediately pending direct examination of Raji and the presentation of other witnesses and exhibits scheduled for the morning session. As to the lunchtime “commotion,” Davis’s yelling and cursing was provoked by a meeting between her and the prosecutor going on behind closed doors away from the jury. As soon as it began, the prosecutor arranged for Davis to be escorted out of the building, she informed the court she would instruct Davis regarding the exclusion order, and there was no further disturbance from Davis for the remainder of trial.
As to the T-shirt, the prosecutor instructed Raji before trial not to wear clothing that could elicit sympathy for the victim. Thereafter, even assuming the prosecutor could have anticipated that Raji was planning to bring her young daughter to the courthouse child care center during trial, she could reasonably assume that Raji would have understood the clothing instruction to pertain to the child.
The placement of the photo and the request to mark the police report as an exhibit, are, at worst, benign acts of forgetfulness. In the case of the photo, the prosecutor failed to consider the remote possibility that the jury might (a) notice the photo and what it depicted, (b) assume the depicted plaque belonged to appellant, and (c) be unduly prejudiced by the photo’s contents. In the case of the police report, the prosecutor failed to lay a foundation showing why it may have been admissible as an official record. (See Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1205, fn. 9.) In the scope of a three-week trial with 47 witnesses, 78 exhibits for the People and 9 exhibits for the defense, these two incidents cannot be realistically characterized as Machiavellian acts of deceit.
c. Leading the Witness
Appellant contends the prosecutor committed misconduct in leading Larera Ford to the correct “conclusion.” Ford lived at 143 North Eldorado. On October 5, 2005, she went to her front door after hearing what sounded like firecrackers. She saw somebody “in all black” jump over the wood fence “right across the street from me.” Later that day she saw the police arrest appellant from the house across the street from her house. The prosecutor asked Ford if the person she saw hopping the fence “hop[ped] the fence on the same side of the street of the house where [appellant] was arrested from [],” i.e., 126 North Eldorado Street. Ford answered, “No.” The following colloquy ensured:
“[Prosecutor]: When you saw the person hopping the fence . . . could you see where they were going to?
“[Ford]: No.
“[Prosecutor]: Okay. What could you see?
“[Ford]: Well, when you get over the fence, you really can’t see anything unless you are in the backyard or around that area.
“[Prosecutor]: Okay. And what house--when you get over the house [sic fence?], where are you at, what house is there?
“[Ford]: Jump that fence, you will be like a house right there [referring to exhibit 4, an aerial photo of the area] from 140 or 120, whatever the address is.
“[Prosecutor]: 126 North Eldorado?
“[Ford]: Yes, yes.
“[Prosecutor]: Okay. So let me ask you this, the fence you saw the defendant hopping, when you get over the fence, you are at 126 North Eldorado?
“[Defense counsel]: Objection to the form of the question. Leading.
The court sustained the objection.
The prosecutor rephrased the question to ask, “When . . . that person hopped the fence, what house were they at?”
A few moments later, following further testimony about the location of the fence and the houses it divided, the prosecutor, referring to the aerial photo, asked: “And then when you are talking about the fence that the defendant--I’m sorry, the fence that you saw the person hop, let me orient you. . . .” (Italics added.)
Shortly thereafter, while the jury recessed, defense counsel stated the need “to put on the record that [the prosecutor] has repeatedly asked questions and often corrected herself about saying the defendant jumping the fence when there’s no testimony that it was the defendant jumping the fence.” The court replied that defense counsel was obliged to make contemporaneous objections. “If you do, I will rule on them as you make them.”
The prosecutor’s labeling of the person who jumped the fence as “defendant” when Ford had not testified that the fence jumper and appellant were the same person was unquestionably improper. However, defense counsel’s complaint to the trial court that the prosecutor did so “repeatedly” is inaccurate on this record. As recited, ante, she did so once, immediately after which defense counsel’s objection was sustained, and she did so one other time, immediately correcting herself. These two instances of incorrect nomenclature, both of which were promptly rectified, do not constitute misconduct.
d. Impugning Defense Counsel
Appellant asserts several instances of the prosecutor impugning defense counsel.
(1) Cross and Redirect Examination of Detective Ehrlich
During cross-examination of Detective David Ehrlich, who prepared the S.W.A.T. team report, defense counsel, after asking about the procedure for restricting access to a crime scene, asked: “And at . . . 4:05 in the afternoon [of the shooting], the description was a person wearing a black and white jersey with numbers on it possibly. . . . [T]here was a race, a black male, and the description was a teenager. Correct?” Ehrlich answered, “Yes.”
The prosecutor conducted the following redirect examination of Ehrlich:
“[Prosecutor]: Did you document in your S.W.A.T. team report the initial description that you had of the suspect?
“[Defense]: I’m going to object. It’s calling for hearsay. It was a very specific question. If we need to approach, I would be happy to.
“[Court]: Yeah, I think you need to.
[Sidebar conference]
“[Court]: Please return to counsel table. The objection is sustained.
“[Prosecutor]: And the initial description of the suspect, did the word ‘teenager’ appear to your knowledge?
“[Ehrlich]: I don’t believe so.
“[Prosecutor]: And you don’t have that in your report, do you?
“[Defense counsel]: Objection. Not relevant.
“[Court]: [] Sustained.
“[Prosecutor]: Was the initial description
“[Defense counsel]: Objection. Leading.
“[Court]: Haven’t heard the question. Overruled.
“[Prosecutor]: Was the initial description of a black, male adult?
“[Ehrlich]: I believe it was.
“[Prosecutor]: Six feet tall?
“[Defense Counsel]: Objection.
“[Court]: [] Sustained.
“[Defense Counsel]: No foundation.
“[Prosecutor]: When the defense attorney asked you questions on cross-examination about the initial description of the suspect, . . . were you able to refer to your report
“[Defense counsel]: Objection. Not relevant.
“[Court]: [] Sustained.
“[Prosecutor]: When the defense attorney asked you questions on cross-examination regarding the description and said words like ‘teenager’ and that type of thing, did you refer to your report?
“[Defense counsel]: Objection. Not relevant.
“[Court]: [] Whether he referred to the report is not relevant. Sustained.
“[Prosecutor]: When the defense attorney asked you questions on cross-examination about the initial description, did you think he was giving you correct information on those questions?
“[Defense counsel]: Objection. Not relevant. And I would ask that she be admonished not to impugn me.
“[Prosecutor]: The defense misrepresented-- [Italics added.]
“[Court]: Sustained.”
The prosecutor had no further questions.
During a recess, defense counsel asserted that the prosecutor’s repeated redirect questions were attempts to impugn his character with respect to the honesty, accuracy, and completeness by which he had cross-examined Detective Ehrlich. He argued that his questions to Ehrlich as to whom the police were looking for at 4:05 p.m. were “very precise,” and the information from the “911” dispatch played for the jury provided precisely the information on which defense counsel questioned Ehrlich. Defense counsel asserted that “[t]he prosecutor repeatedly . . . asked inappropriate questions on [a] bad faith basis concerning a report that was written by [Ehrlich] more than 15 days after the event, after all of the information [was] known, far exceeding what was in their possession at the time[,] which was the only purpose for which my questions were being asked. [¶] And, therefore, because [the prosecutor repeatedly asked] inappropriate questions ultimately with the only purpose of suggesting to the jury that I am being incomplete in my questioning and attempting to mislead [the jurors], I’m asking there be a finding of misconduct. . . .”
The prosecutor responded that defense counsel had misrepresented the information the officers had initially received from the “911” call center and from the dispatcher, which described the suspect as between 18 and 25 years of age. She explained that the purpose of her redirect examination was to clarify the information that the officers had received, as permitted by Evidence Code section 356.
The court concluded there was a good faith dispute regarding the admissibility of evidence relative to Ehrlich, defense counsel’s integrity was not impugned, and the court made evidentiary rulings that were abided by, notwithstanding the questions.
Appellant contends that the prosecutor’s partial sentence, “ ‘the defense misrepresented . . .’ ” impugned defense counsel because it was a claim that defense counsel had misrepresented a description of the suspect. He also argues that the prosecutor’s redirect examination cast aspersions on the integrity of defense counsel because it implied they had been playing “hide the ball.”
We agree with the trial court, which was in a better position than this court to gauge the prosecutor’s questioning, that her examination did not constitute misconduct. The fundamental question in this trial was identity. Although perhaps inartful, her questioning may reasonably be construed as an attempt to establish that the responding police were on notice that the suspect may have been older than a teenager, not as an attempt to imply that defense counsel had not been forthcoming with all information in the emergency dispatches.
(2) Closing Rebuttal Argument--“Desperate Acts”
The prosecutor began her closing rebuttal argument by stating: “Desperate acts by the defendant in this case you have seen on the stand and also by his attorney in closing arguments. [¶] The defense attorney wants you to believe that this item [the holster that appellant testified he threw into a yard next door to 126 North Eldorado Street] is a boomerang. That this item went into the air and traveled 50, 75 feet to where it landed. Was there any evidence about that? Did anyone ever testify that it was windy? No. It’s a complete fabrication, a complete fabrication in the favor of the client.”
Defense counsel objected to the use of “fabrication” as improper. The objection was sustained.
Arguing the relevance of the soda bottle depicted in a photo of the crime scene, the prosecutor argued: “Let me tell you what really happened. Derente [Tanksley] is on the stand, said victim had a soda bottle in his hand. Then on cross-examination the attorney showed him pictures of the park. He said[,] ‘Do you see a soda bottle anywhere? Do you see one?’ He said[,] ‘No, I don’t see one.’ [¶] Well, over lunch and after lunch we had the person who happened to take the photographs and collected the shell casings from the scene [on the stand]; right? We are looking at the photographs. We happen to see one that has a soda bottle right at the location where the victim was shot. Is it the victim’s soda bottle? I don’t know. I can’t tell you that, but is there one there? Yes. Could it be the one that Derente Tanksley was talking about? Sure. [¶] But why cross examine her [the investigating officer who took the photographs] for fifteen to twenty minutes on whether [it was] plastic or glass? Desperate acts.” Defense counsel did not object to these comments about the soda bottle.
Challenging the defense theories, even if done sarcastically, does not constitute personal attacks on defense counsel and thus is not misconduct. (See People v. Williams (1996) 46 Cal.App.4th 1767, 1782.) The prosecutor’s rebuttal argument here was a legitimate attempt to show why the defense evidence, and defense counsel’s argument based on that evidence, was not logical or plausible in light of the People’s evidence. While the prosecutor may have used one word, “fabrication” improperly, her misuse was corrected by the sustained objection.
(3) Closing Rebuttal Argument--Vouching for Witness
Johnson, according to appellant’s defense theory, was the shooter. In her rebuttal, the prosecutor spoke about Deshawn Johnson, who had pled no contest to an unrelated San Mateo offense two weeks before trial. “Deshawn John[son] was not promised anything. There was no testimony to that at all. Detective Decker said he didn’t think he did it because he didn’t think he did it. Detective Decker is certain we have the right man. That is because the evidence points to the right man.”
Defense counsel objected to the characterization of Decker’s “certainty” or “belief” because it was never testified to. When the prosecutor responded that Decker “actually [] did testify,” the court replied: “Yeah. I think . . . [the prosecutor] is within the trial events.”
Appellant contends the prosecutor’s argument regarding Detective Decker’s testimony improperly “vouched for her own witness’s confidence.” As the trial court observed, Decker had in fact testified to his belief. During cross-examination, he was asked about his interview of Derante Tanksley the day after the shooting. He acknowledged telling Tanksley during the interview that he and the entire police department were committed to keeping appellant “where he is,” i.e., in jail. He testified that he made the comment to Tanksley because he sensed that Tanksley was concerned about “having his name put out there” as a person who identified appellant to the police and was “a little fearful” of appellant. Defense counsel then asked: “[S]o is it a fair statement of your mental state[] at that time when you were interviewing [Tanksley] that you and the whole department were committed to . . . keeping [appellant] in jail?” Decker replied: “It is fair to say [that at] the time we believed that we arrested the right person.” As a reasonable characterization of Decker’s testimony, the prosecutor’s argument was not misconduct.
e. Inculpating Appellant for Exercise of His Constitutional Rights
(1) Officer Boyle’s Testimony Regarding Appellant’s Refusal to Consent to a Blood Draw
On the first day of trial, May 30, appellant moved in limine that the court order the prosecution to identify any statements by appellant that were to be offered during its case in chief. He referred specifically to three sources of potential admissions: lay witnesses for the prosecution, an in-custody informant, and recordings of appellant’s jailhouse telephone calls. Appellant requested an Evidence Code section 402, subdivision (b) hearing if the prosecution intended to introduce any such statements.
During discussion of this motion, the prosecutor stated that she had turned over statements attributed to appellant to defense counsel. She referred to a statement made to Rusheen Raji, a statement by an in-custody informant, notes written by appellant while in jail, and appellant’s jailhouse phone calls to different people. She added that there were no statements by appellant that had not already been turned over to defense counsel as potential prosecution evidence.
The following day, May 31, the prosecutor moved to admit appellant’s statements to Rasheen Raji and Shauna Williams, all his statements made on recorded jail telephone calls, and all statements made to the police. Appellant’s arrest report was attached as part of the last request. The report described the S.W.A.T. team’s locating appellant in the attic of 126 North Eldorado and getting him to come out of the attic. It did not describe any police acts after appellant was taken into custody.
The court concluded the statements to the police contained in the arrest report would be admissible.
On June 7, the prosecutor called Brendan Boyle, the police officer who processed appellant at the jail, as a witness. Immediately before he testified there was an unreported sidebar. After Boyle testified that he had to take samples from appellant as part of the booking process, the following colloquy occurred:
“[Boyle]: I explained to [appellant] that I requested that he sign a consent form for a consensual blood draw
“[Defense counsel]: No
“[Boyle]:-- For the purposes of DNA analysis.
“[Defense counsel]: I’m going to ask that the prosecutor be mindful of the court’s rulings.
“[Court]: Yes. Fine.
“[Prosecutor]: Of course.
“[Court]: Okay. Proceed.
“[Prosecutor]: Were you able to obtain a blood sample from the defendant?
“[Boyle]: No. The defendant refused.
“[Defense counsel]: Objection.
“[Court]: The objection is sustained.
“[Defense counsel]: Move to strike. . . . Ask the jury be admonished.
“[Court]: Yes. The testimony is stricken, and the jury is instructed to disregard it.”
Following Boyle’s testimony, outside the jury’s presence, defense counsel informed the court that the prosecutor’s question about the ability to obtain a blood sample constituted misconduct. They elaborated that during the sidebar they voiced their concern about eliciting statements made by appellant to Boyle, and the prosecutor responded that she intended to elicit such statements and they had been provided to defense counsel during discovery. Defense counsel continued: “Officer Boyle had no purpose to testify except -- except to point out to the jury that [appellant] refused to voluntarily give hair and a blood sample after having invoked his right to remain silent and his right to counsel. . . . This prosecutor knew it, and she continued to ask questions, and it came out anyway. And I was under the misimpression that Boyle ultimately got a search warrant and that’s what he was going to testify to, that he did obtain those samples. And I have no objection to that. [¶] The [problem is,] she intentionally went to an area” that the court directed her not to go into.
The court found that the line of questioning of Boyle was “troublesome on multiple grounds. First, it seemed to violate the in limine ruling that the court made with regard to the range of evidence of defendant’s statements. It was clear in my mind that before the jury was selected that we had thoroughly aired the range of evidence of defendant’s statements that would be admissible, so I don’t think there’s any ground for confusion on that score. [¶] Second, the record should reflect that we had discussion at bench during the course of Officer Boyle’s testimony. The court indicated it would sustain objections based on Miranda invocation. And it seems that notwithstanding those indicated rulings at bench that you persisted in eliciting that defendant had refused to submit to a blood draw at the jail. Seems to me inconsistent with the court’s ruling at bench. And I’m struggling to find any good faith basis for your action in that regard. [¶] [Following the sidebar] you went on to proceed to elicit [orally] evidence of the defendant’s statement that he refused to give consent. . . . [¶] I don’t know where you are going. . . . [¶] I think that this is a troublesome episode. I’m concerned about it. I think ultimately in the evidential sense it’s probably not significant[,] anticipating that we are going to have evidence that essentially there was blood drawn and comparison was made, but I am concerned about the constitutional aspect of it. [¶] I think that under the circumstances, if defense wishes the court to deliver an appropriate admonition, I’m certainly happy to do that. I am concerned that it may be more harmful than helpful. And that’s a decision that defense counsel maybe can reflect upon. [¶] With an admonition to the prosecutor that we don’t want anymore unpleasant surprises. And if it gets to that, I will simply ask for a specific offer of proof as to every single one of your [prosecutor’s] witnesses so that we won’t have anymore of that in this case. Do you understand what I’m saying?” The prosecutor answered, “Yes.” Defense counsel chose not to have an admonition.
During this exchange the prosecutor had informed the court that appellant’s blood was ultimately drawn pursuant to a court order.
(2) Cross-Examination of Appellant Regarding Implying Deshaune Johnson As the Shooter
As recited, ante, appellant’s testimony implicated Deshaune Johnson as the person who shot Key. During cross-examination, the prosecutor asked appellant why, since his arrest, he never told anyone related to law enforcement or anyone else about Deshaune Johnson. He replied that he had told his attorney, Laurie Savill, about Johnson.
“[Prosecutor]: Okay. Fine. She’s not related to law enforcement, is she?
“[Appellant]: Well, she’s a lawyer.
“[Prosecutor]: She’s a defense attorney, right?
“[Appellant]: Yes, ma’am.
“[Prosecutor]: Okay. So did you tell anyone related to law enforcement about Deshaune this entire time?”
Defense counsel objected on “numerous grounds,” and the court sustained the objection on “numerous grounds.”
In later cross-examination, appellant acknowledged that he had lied repeatedly to police inspectors in conjunction with an unrelated case, despite telling those inspectors that he would tell them the whole truth. The prosecutor then asked: “Do you recall asking [those] inspectors to give you a check?”
“[Defense counsel]: Objection.
“[Court]: Sustained.
“[Prosecutor]: [¶] Did you ask [those] inspectors to give you a check to see if you were lying
“[Defense counsel]: I’m going to object again.
“[Court]: Sustained.”
The jury was then excused for lunch. Defense counsel protested that the prosecutor’s cross-examination questions implied wholly forbidden questioning about a polygraph examination. The court replied that the record was “clear” that there was nothing elicited about a polygraph. It asked the prosecutor for an offer of proof as to what she intended to elicit.
The prosecutor then read from the transcript of the unrelated case. The question posed to appellant in the prior case was “‘So you are telling [the inspectors] to go check to see if you were lying because you were trying to convince them you were telling the truth?’”
The prosecutor explained that, by this testimony, appellant was asking those inspectors to give him a test if they thought he was lying, and he would try to prove that he was telling the truth. She also noted that the word “polygraph” did not appear in the entire transcript of the previous case.
The court concluded that, as it understood the context, “test” was unrelated to “polygraph,” and there was no problem because it had terminated the prosecutor’s questioning before she “got into something that potentially might have been troublesome.” The court, on its own motion, imposed a “352” (Evid. Code, § 352) order that further testimony regarding appellant’s lying to the inspectors in the other case was inadmissible as cumulative. The court agreed with defense counsel that the prosecutor had now been careless twice in infringing on appellant’s invocation of his Fourth and Fifth Amendment rights: eliciting his statement to Boyle that he refused to have blood drawn and asking whether he had ever spoken about Deshaune Johnson to any law enforcement officers following his arrest. The court’s remedy was a strong admonition.
When the jury returned from lunch the court stated: “Ladies and Gentlemen, before we proceed with the examination of [appellant], I have an admonition for you. [¶] Before the noon recess, the prosecutor asked [appellant] if he told the police about his conduct with Deshaune Johnson on October 5th, 2005, following his arrest. This question by the prosecutor was misconduct. She was aware that [appellant] had invoked his right to counsel and that he had no obligation whatever to assist the police in investigating the charges against him. [¶] You must disregard this improper question by the prosecutor and any answer that was given in response to it. Treat it as though you never heard of it.”
Appellant appears to contend that the admonition did not cure the misconduct because, when examining Deshaune Johnson as a rebuttal witness, the prosecutor asked whether Detective Decker had asked him for a DNA sample while interviewing him. When Johnson replied, “Yes,” the prosecutor asked (without objection): “Did you have any problems giving him your DNA sample?” Johnson replied: “None whatsoever.” Appellant argues that the only logical implication from the question is that Johnson did not need to invoke his rights because he was innocent; only guilty parties invoke their constitutional rights.
We agree that the prosecutor’s question regarding Johnson’s taking the DNA test was of questionable propriety. On balance, however, we do not construe it as misconduct. The prosecutor, understandably, wanted Johnson to testify in order to disprove appellant’s testimony intimating that Johnson was the real killer of Charles Key. Showing that Johnson cooperated with the police investigation of Key’s death was relevant to Johnson’s credibility in denying any participation in the shooting. Furthermore, it is speculative that the jury would have made the subtle inference appellant ascribes to the prosecutor’s questions.
(3) Closing Argument
Appellant contends the prosecutor violated his constitutional rights by misstating the People’s burden of proof during closing argument. Addressing the “reasonable doubt” instruction, the prosecutor stated, without objection: “It says in the jury instructions it’s not possible doubt. It’s not imaginary doubt. It’s not benefit of the doubt. The defendant’s story[,] simply because he gave you a story[,] does not mean doubt. You don’t have to believe him.”
In their subsequent closing argument defense counsel argued: “[W]hen you get to the benefit of a doubt, that’s precisely what the law is telling you. In fact, you are directed to impliedly. He is entitled to the benefit of the doubt in every single fact, every single inference, ever[y] single consideration you want to take. He is entitled to the benefit of the doubt. Why? Because if there is doubt, then it is because it wasn’t proven. There can be nothing more clear in the law.”
In her rebuttal closing argument, the prosecutor argued, without objection: “Now, I told you that defendant doesn’t get the benefit of the doubt. That’s correct. It has to be doubt based on reason.”
The prosecutor’s argument may be construed as an argument that it is not just “any” doubt that precludes conviction; rather, the doubt must be reasonable. So construed, it was not an incorrect statement of the law and thus not misconduct. In any case, the court instructed the jury on the definition of reasonable doubt (CALCRIM No. 220). It instructed that if the jury could draw two or more reasonable inferences from the circumstantial evidence, one pointing to innocence and one to guilt, it must accept the one pointing to innocence. (CALCRIM No. 224.) It instructed that if the jury believed the attorneys’ comments on the law conflicted with the court’s instructions, it was to follow the instructions. (CALCRIM No. 200.) Given these correct statements of the law, including the burden of proof, the prosecutor’s arguably imprecise definition of reasonable doubt was not prejudicial.
f. Motion for New Trial
After he was found guilty, appellant moved for new trial on grounds of prosecutorial misconduct. The specific bases were the above-described elicitation from Officer Boyle that appellant refused to provide a blood sample, a violation of appellant’s constitutional right against unreasonable searches and seizures, and the cross-examination regarding his post-arrest failure to identify Johnson as the killer, a violation of his constitutional right to remain silent.
In denying the motion, the trial court agreed that evidentiary errors were committed with respect to Officer Boyle’s testimony and appellant’s cross-examination. It concluded they were inconsequential to the verdict and thus harmless beyond a reasonable doubt under the appropriate constitutional standard. It found that appellant’s credibility was not eviscerated by these two errors. “Once Deshaune Johnson testified . . . the Court did not believe for a nano second that he was the shooter in this case. The evidence indicated he is an 18 year old with no adult record. Also, he didn’t fit the description of the shooter according to the dying declaration of the victim. . . . [¶] The jury undoubtedly reached the same conclusion as they rendered a verdict in just under one hour in this case notwithstanding [sic] the three positive identifications of the defendant at trial and a mountain of physical and scientific evidence that supported those identifications. [¶] In the Court’s view the two evidentiary errors were essentially insignificant and did not materially contribute to the outcome of this case to the extent that this is a factual conclusion. . . . [¶] As to the alleged misconduct during argument. [T]he Court perceived no improper argument[,] frankly[,] from the People in any respect, so the claim is rejected as unsupported.”
A trial court’s ruling on a motion for new trial is not disturbed absent an abuse of discretion. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1252.) We find no abuse. The trial court considered the motion carefully, applied the correct standard of review, and articulated valid reasons for the denial.
g. Prejudice
As discussed, we have concluded that most of the numerous acts appellant claims to have been misconduct do not constitute prosecutorial misconduct. On the other hand, like the trial court, we find that eliciting appellant’s refusal to take a blood test from Officer Boyle and cross-examining appellant regarding his post-arrest failure to tell law enforcement about Deshaune Johnson were acts of misconduct. Nevertheless, even measuring this misconduct by the stricter Chapman (Chapman v. California (1967) 386 U.S. 18) standard of review, because it touched on appellant’s constitutionally protected rights, we find it harmless beyond a reasonable doubt. There was an abundance of eyewitness, physical and scientific evidence against appellant; no witness mentioned seeing Deshaune Johnson at the Center on the day of the shooting; appellant’s attempts to shift blame to Johnson and his explanations of his conduct in the immediate aftermath of the shooting (finding a holster on the bed where Johnson had been sitting, finding a gun and clip between a television and a dresser and hiding them in bedding in the garage, hiding himself in the attic, wearing jeans and a T-shirt all day, etc.) were strained. As found by the trial court, which was in the best position to judge, Johnson as a witness compellingly rebutted appellant’s theory; and the jury returned its verdict very quickly in light of the length of the trial and the severity of the charge.
II. Admission of Victim’s Statements
The People moved in limine to admit statements made by victim Key to Detective Hedley who accompanied him in the ambulance to the hospital. They asserted the statements met the criteria for admission as a dying declaration under Evidence Code section 1242. Appellant objected because there was no indication that the victim, although injured, thought he was going to die. He also argued that the facts did not accord with the rationale for the dying declaration exception to the hearsay rule, which is that the victim is being truthful because, fearing he is about to die, he believes this is his last chance to speak about the killer. Appellant noted that Detective Decker believed Key knew the shooter but was not being forthcoming with the name. Appellant further argues that if Key was hiding the identity, Key could not have believed his death was imminent.
The court concluded the circumstances were sufficient to permit Key’s statements under Evidence Code section 1242: he had been shot multiple times, with one shot to the back paralyzing him from that point down; his statements were within minutes of the shooting; he was vomiting blood; and he gave enough information about the shooter to imply personal knowledge and to permit the detective to identify him but without appearing a “snitch” by actually naming the shooter.
At trial, Detective Hedley testified that while Key was still on the ground he was able to answer Hedley’s questions as to his name and address. When Hedley asked Key, “Was the person who did this from San Mateo,” Key replied he was from San Francisco. When Hedley asked, “Who shot you,” Key replied he didn’t know. During this time Key was vomiting copious amounts of blood into his oxygen mask. Hedley told Key it was “really important that you tell me what happened.” During the ambulance ride he asked Key to describe “the person who did this to [you].” Key described him as a “mixed race male . . . about 25 years old with short, croppy hair . . . [who] was from San Francisco.” Hedley asked Key “what he meant by” mixed race, and Key replied “lighter-skinned” African.
Appellant contends the admission of Key’s statements to Hedley violated his federal constitutional right to confrontation under Crawford v. Washington (2004) 541 U.S. 36. He acknowledges that since Crawford, our Supreme Court has held that the dying declaration exception to the hearsay rule does not conflict with the Sixth Amendment (People v. Monterroso (2004) 34 Cal.4th 743, 762-765), and that he is raising the issue to preserve it for consideration by the federal courts.
We appreciate appellant’s forthright recognition that we are bound by the Monterroso holding under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455. We also observe that while appellant does not specifically contend that the admission of Key’s statements was error because the statements did not meet the Evidence Code section 1242 criteria, he suggests as much. He argues that the use of Key’s statements to prove his identity as the shooter cannot be justified on the basis of reliability, because Key stated he did not know the man who shot him, although appellant was purportedly one of Key’s best friends. He elaborates that it is inherently unfair to use the part of Key’s statement that matches the description of appellant in order to prove his identity when Key explicitly stated he did not know who shot him.
Evidence Code section 1242 provides that evidence of a statement “made by a dying person respecting the cause and circumstances of his death is not made inadmissible by the hearsay rule if the statement was made upon his personal knowledge and under a sense of immediately pending death.” Admission of hearsay statements under Evidence Code section 1242 is reviewed under the abuse of discretion standard. (People v. Gatson (1998) 60 Cal.App.4th 1020, 1024.)
Despite the gravity of Key’s physical state after the shooting--paralysis, oxygen mask, vomiting blood--he was able to speak coherently, albeit slowly, to Detective Hedley, and his specific details about the shooter--age, complexion, residence (twice), hairstyle--implied a desire to have the police know who the shooter was, without having to give a name. The court did not abuse its discretion in admitting Key’s statements to Hedley.
DISPOSITION
The judgment is affirmed.
We concur: Gemello, J., Needham, J.