Opinion
B290993
03-02-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSE REYES, Defendant and Appellant.
Gail Harper, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Colleen M. Tiedemann, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA445657) APPEAL from a judgment of the Superior Court of Los Angeles County, Leslie A. Swain, Judge. Affirmed. Gail Harper, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Colleen M. Tiedemann, Deputy Attorney General, for Plaintiff and Respondent.
At trial on charges for attempted murder and other crimes, there was no dispute defendant and appellant Jose Reyes (defendant) shot two victims. Defendant did contest, however, the prosecution's theory that he was a member of the Eastside Playboys criminal street gang (Playboys) and the prosecution's allegations that the shootings were gang-related. The jury found the prosecution proved the allegations. We consider three issues related to the gang allegations: whether substantial evidence supports the jury's findings that the attempted murders were gang-related, whether defendant's trial attorney provided constitutionally deficient representation by not raising Confrontation Clause and due process objections to certified court records offered to prove the Playboys qualify as a criminal street gang, and whether the trial court gave the jury a mandatory instruction on witness credibility.
I. BACKGROUND
A. The Offense Conduct and Police Investigation
In the afternoon on April 1, 2016, Nelson Belteton and Oscar M. (age 14) were standing on 39th Street with a woman named Ayneka Trapp. Belteton and Oscar were members of the Addicted to Crime (ATC) criminal street gang, and the area where they were standing on 39th Street was within territory claimed by the ATC gang and near a house used as a "hang out" by ATC gang members.
A blue sedan drove up and stopped close to the group. A man later identified as defendant got out of the sedan and shot at Belteton and Oscar. Three bullets hit Belteton in his upper chest, right thigh, and left forearm, and he fell to the ground. Oscar started running, and he too was hit by three bullets, two to his lower left leg and one to his upper right leg. Both young men survived, and Trapp was not injured.
Los Angeles Police Department (LAPD) officers apprehended defendant a few days after the shooting. In a search of a garage at the residence where defendant was found, police recovered a silver handgun that subsequent forensic tests showed was the firearm used to shoot Belteton and Oscar. Police also found small amounts of methamphetamine and cocaine, papers that had writing or symbols referring to the Playboys and "Li'l Tech Nueve" (which the police understood to be a gang moniker), and a California identification card in the name of defendant's live-in girlfriend Monique Anzalone (Anzalone). Police also observed Playboys graffiti on a wall in an alley just outside the residence.
In addition to the drugs, handgun, and paperwork with gang references, police found a cellphone used by defendant that they later searched. The hotspot password for the phone was "playboys." A text message sent from the phone about an hour after the shooting of Belteton and Oscar read: "Caught 2 virgins on ps." Photos extracted from the phone included screenshots of an L.A. Daily News article reporting on the shooting of Belteton and Oscar (headline: "2 wounded in South LA gang-related shooting"), photos of defendant making what appear to be gang hand signs, photos of Anzalone making what appear to be gang hand signs, and graffiti featuring the letters "PBS" and "PLAYBOYS 43 LTEC."
B. Trial
Defendant was charged with three counts of premeditated attempted murder, one for each of Belteton, Oscar, and Trapp. The information alleged the attempted murders were committed for the benefit of, at the direction of, or in association with a criminal street gang and with the specific intent to promote, further, or assist in criminal conduct by gang members.
Defendant was also charged with three counts of second degree robbery and one count of identity theft. The information further alleged, as to all four counts, that defendant was personally armed with a firearm during the commission of the offenses. Defendant was ultimately convicted of these crimes, and the jury found true the allegations that the robberies and identity theft were committed while defendant was armed with a firearm. These convictions are unchallenged on appeal.
1. The ATC gang members defendant shot
At defendant's trial on the attempted murder charges, Oscar testified he did not remember anything about the shooting and did not remember telling police officers anything about the shooting. A police officer who interviewed Oscar in a hospital emergency room immediately after the shooting, however, testified Oscar told him a Hispanic man got out of a blue sedan, said "Where you from," and then began shooting at him and Belteton. Belteton was not called as a witness at trial. A police detective testified that when he visited Belteton in the emergency room and asked him to look at photos to see if he could identify the shooter, Belteton refused and said he (Belteton) was a gangster and there was a code on the street that meant he would not rat anybody out.
2. Gang expert testimony
The prosecution's expert, LAPD officer Luis Lopez, was assigned to monitor and investigate the Playboys and other gangs. Officer Lopez testified the Playboys identify themselves by wearing anything with the Playboy bunny logo or baseball team logos with a "P" insignia (like the Pittsburgh Pirates and the Philadelphia Phillies). He opined the Playboys' primary activities include homicides, robberies, sales of controlled substances, sales of weapons, possession of assault rifles, burglaries, and vandalism. According to Officer Lopez (and another officer who testified at trial), the ATC gang (of which Belteton and Oscar were members) is one of the Playboys' rival gangs.
Officer Lopez also explained there is a code of silence among gang members. Elaborating, he testified there is "a saying that's very common with gang members, snitches get stiches, which means if you cooperate with law enforcement you will get assaulted. It's usually taken care of within gangs. It's known. And it's, again, a code that they live off."
Asked about defendant specifically, Officer Lopez opined he was a member of the Playboys gang with the moniker Li'l Tech. He based his opinion on the evidence found during the search of defendant's residence, including the information recovered from the cellphone used by defendant. He testified two pictures of defendant depicted him holding up a Playboys hand sign. In one of those photos, defendant was also wearing a Pittsburgh Pirates hat. Officer Lopez also addressed the sent text message on defendant's phone that read "Caught 2 virgins on ps." According to Officer Lopez, Playboys use the word "P's" to acknowledge they are Playboys and take credit for the gang. "Two virgins" could mean anything from finding a rival gang in the area known as "Villains" to a young gang member who just got into a gang. Regarding the screenshot of the Daily News article reporting on the shooting, Officer Lopez testified that keeping a newspaper article regarding a crime a member committed is a way for a gang member to brag and prove to other gang members that he committed the crime.
As to Anzalone, Officer Lopez opined she was also a Playboys member, one who went by the moniker "Giggles." The officer noted two photos extracted from defendant's phone showed Anzalone making Playboys hand signals.
The prosecution asked Officer Lopez a hypothetical intended to track the facts of the case. Specifically, the prosecution asked Officer Lopez to assume the following: A member of the Playboys gang "drives with . . . another member of Playboys, a female. They go from their Eastside Playboys' territory. They drive into a rival's territory, ATC, go down to a location that is known as a primary hangout for ATC. That person, that younger member of the gang, is seated in the passenger position of that car. The . . . driver is the female gang member. Those two individuals drive down that street towards that ATC hangout. [¶] That car stops in front of that ATC hangout. Out of the passenger seat comes the . . . member of the gang, armed with a chrome-colored semiautomatic handgun that is fully loaded, approaches . . . two members of that rival gang, as well as a third individual who just happens to be standing with them. [¶] That individual . . . takes out that gun, says 'Where you from' and immediately starts to shoot at that group. [¶] . . . [¶] [Then the shooter] sends out a text to another person saying that they just committed this crime, 'caught 2 virgins on P's,' claiming on P's, their gang. [¶] The following day there's a newspaper article written about that shooting. That person, the [shooter] takes a screen shot of the newspaper article and keeps it in their personal effects on their phone." When asked whether he believed the hypothetical shootings were committed for the benefit of, at the direction of, or in association with the Playboys gang, Officer Lopez opined the shootings were committed both for the benefit of and in association with the gang.
Defendant's gang expert, Martin Flores, testified that an act of violence performed by a member of one gang on a member of another gang does not necessarily mean the violence was gang-related. Rather, the question of whether the violence was gang-related would depend on the factors at play in the specific incident. Flores opined, when asked to respond to the prosecution's hypothetical question tracking the facts of the case, that the shootings were not committed for the benefit of the Playboys gang. In reaching this conclusion, Flores found it significant that no gang name was yelled out at the time of the act, no gang signs were "thrown," and defendant was not a documented gang member. Flores thought the pictures found on defendant's phone were taken "more in a personal capacity," and were "not out there being shared with the public."
3. Defendant's testimony
Defendant testified during the defense case. He said he loved Anzalone and had been living with her for approximately four months, beginning in January 2016. The two used marijuana, cocaine, and crystal methamphetamine.
According to defendant, in March 2016, Anzalone's car was shot in the alley behind defendant's residence. Defendant was watching a live feed of a security camera in the alley, and saw a white van pass by right before he heard the shooting. When he went outside, he saw Anzalone's back window had bullet holes in it. Defendant also saw a "guy jumping into the van and taking off."
The following month, on April 1, 2016, defendant testified he and Anzalone were out driving and he had a loaded gun with him. Defendant was sitting in the passenger seat and saw a white van that looked familiar, with two young men standing or leaning next to the van. Defendant believed the young men looked like "gang bangers" and "the guys that shot up [Anzalone's] car," so he got out of the car and shot at them. Defendant claimed he did not want to kill them, he just wanted to "get them off of [him]." Defendant described himself as "a little high" and "very angry" at the time.
During his trial testimony, defendant denied he was a gang member. He claimed the various papers found during the search of the garage with gang writing on them belonged to Anzalone, not him. Confronted with the photos extracted from his phone showing him making Playboys hand signs, defendant testified he "just wanted to play a part for [Anzalone]." When asked about the text message regarding the "2 virgins" he "caught," defendant said he sent the message to a friend he refused to identify and professed to have no memory of what he meant by the text. Defendant did admit he crossed out 18th Street gang graffiti in the alley near his residence and graffitied "Playboys" on the wall instead, but when asked why, defendant responded "Playboys" was just "the first thing that popped up in my head." Asked about the moniker "Li'l Tech" that was graffitied next to the "Playboys" graffiti, defendant admitted he "wr[o]te that" and answered "[y]ou could say that" when asked if he was "Li'l Tech."
C. Verdict and Sentencing
The jury found defendant guilty of the attempted murders of Belteton and Oscar. It also found true allegations that the attempted murders were willful, deliberate, and premeditated; that they were committed for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members; and that defendant personally and intentionally discharged a handgun in the commission of the offense. The jury found defendant not guilty of the attempted murder or attempted voluntary manslaughter of Trapp.
The trial court sentenced defendant to 25 years to life for the attempted murder of Belteton (count four). The court similarly sentenced defendant to 25 years to life for the attempted murder of Oscar (count five). The court ordered the sentences for both counts to run concurrently.
The trial court also sentenced defendant to the midterm of three years on the first robbery count, plus ten years for the gun allegation. As to the second robbery count, the trial court sentenced defendant to one-third of the midterm, which was one year plus one-third of the midterm of the 10 year gun allegation, totaling three years and four months. As to the third robbery count, the court sentenced defendant to the midterm of three years, plus the 10 year firearm allegation to run concurrently. As to the identity theft count, the trial court sentenced defendant to the midterm of two years, to run concurrently. The aggregate term, including defendant's sentences on the attempted murder counts, was 42 years and four months to life in prison.
II. DISCUSSION
The sole focus of defendant's appeal is the soundness of the gang enhancements the jury found true in connection with the two attempted murder convictions. He advances three arguments, all of which are unpersuasive.
Defendant's challenge to the sufficiency of the evidence supporting the gang enhancements fails because there is substantial evidence the shooting was committed in association with the Playboys gang, i.e., that defendant and Anzalone came together as members of the Playboys gang (and relying on its code of silence) to attack rival gang members, in rival gang territory, in broad daylight. Defendant's claim that his trial attorney was constitutionally ineffective for not challenging certified conviction records offered to prove predicate gang offenses fails because the records are neither hearsay nor testimonial, nor has defendant shown there was any prejudice in admitting evidence of predicate offenses beyond the two required to qualify the Playboys as a criminal street gang. Finally, defendant's contention that the trial court erred by failing to instruct the jury on general principles regarding the credibility of witnesses fails because the trial court gave such an instruction to the jury orally at the outset of trial and that is sufficient.
A. Substantial Evidence Supports the Gang Enhancement True Findings
The jury found true allegations that the attempted murders of Oscar and Belteton were gang-related within the meaning of Penal Code section 186.22, subdivision (b)(1). When considering a challenge to the sufficiency of the evidence supporting these findings, "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar).)
Undesignated statutory references that follow are to the Penal Code.
Section 186.22, subdivision (b)(1) authorizes increased punishment for "any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." To prove an allegation under section 186.22, subdivision (b)(1) true, the prosecution must introduce evidence to establish both statutory elements, i.e., that the underlying crime was "gang related" and that the defendant acted with the requisite specific intent. (Albillar, supra, 51 Cal.4th at 59.)
The fact that a crime is committed by more than one gang member does not necessarily make the crime gang-related. (Albillar, supra, 51 Cal.4th at 60 ["Not every crime committed by gang members is related to a gang"].) Rather, a crime has been committed "in association with" a gang, and thus qualifies as "gang related," when the perpetrators "came together as gang members to attack" a victim (id. at 62)—i.e., when the perpetrators "relied on their common gang membership and the apparatus of the gang" to commit the crime (id. at 60). Substantial evidence of this "in association with" activity was present in Albillar where three defendants, all members of the same criminal street gang (and family members), "not only actively assisted each other in committing the[ ] crimes" but "relied on the gang's internal code to ensure that none of them would cooperate with the police, and on the gang's reputation to ensure that the victim did not contact the police." (Id. at 61-62.)
As we go on to explain, the same sort of substantial evidence present in Albillar is present here. That is, there is substantial evidence that defendant and Anzalone were both Playboys gang members and that they relied on the gang's internal code of silence in carrying out the daytime shooting of rival gang members in rival gang territory.
1. There is ample evidence defendant and Anzalone are Playboys gang members
The evidence that defendant was a member of the Playboys was more than substantial. Defendant had multiple photos of himself on his cellphone in which he was displaying Playboys hand signs. In one of the photos, he was also wearing a Pittsburgh Pirates hat—an item of apparel Officer Lopez testified was worn by Playboys members—while holding a gun. The hotspot password on defendant's phone was "playboys." There were also multiple pieces of paper in defendant's residence with "Playboys" or abbreviations of the gang name written on them, including one that featured the gang moniker "Li'l Tech" that defendant admitted he used to refer to himself. Officer Lopez also testified he had discovered a photograph on social media depicting defendant with other known Playboys members in which all of the individuals were displaying gang signs. In addition, in his own trial testimony, defendant admitted he graffitied "Playboys" on a wall in the alley outside his residence (crossing out other gang graffiti in the process). This is all sound grounding for Officer Lopez's opinion that defendant was a member of the gang.
Officer Lopez also opined, without objection or dispute via admission of conflicting evidence, that Anzalone was a Playboys member with a moniker of "Giggles." That opinion testimony, especially when combined with the photos found on defendant's phone showing her displaying gang hand signs (not to mention defendant's claim while testifying that the Playboys-related paperwork found in the garage was written or drawn by Anzalone) was also sufficient to permit the jury to conclude she was a member of the gang too.
Defendant suggests in passing that Officer Lopez's opinion that Anzalone was a Playboys member was founded on inadmissible hearsay. The argument is inadequately presented and forfeited in any event. The defense made no foundational objection at trial to discover the basis of Officer Lopez's opinion, nor did the defense object that the officer's opinion rested on inadmissible hearsay.
2. There is substantial evidence defendant and Anzalone relied on their common gang membership and the apparatus of the gang to carry out the shooting in rival gang territory
Defendant argues that even if he and Anzalone were gang members, nothing about the manner in which defendant carried out the shootings indicated they were committed in association with the Playboys. To the contrary, substantial evidence demonstrates the shooting was indeed gang-related.
As already explained, there was solid evidence both defendant and Anzalone were Playboys members. Several additional features of the attempted murders defendant committed with Anzalone's help establish he relied on their shared gang membership and "the apparatus of the gang" (Albillar, supra, 51 Cal.4th at 60) to do so—such that the jury could properly find the commission of the offenses "exceeded that which was necessary to establish that the offenses were committed in concert" (id. at 61-62).
First, Officer Lopez testified about the code of silence Playboys gang members adhere to when committing crimes. The jury therefore had the requisite background to understand, as was the case in Albillar, that defendant was able to rely on his common gang membership with Anzalone to commit the crime and rely on the Playboys' code of silence to ensure she would not cooperate with the police. (Albillar, supra, 51 Cal.4th at 61-62.) Needless to say, this was quite important for the investigation that would inevitably ensue after a rather brazen daylight shooting committed in rival gang territory about a block from the campus of the University of Southern California.
Second, Officer Lopez testified the gang code of silence extended even to gang member victims of gang-perpetrated crimes. The jury could infer from the evidence at trial that the manner in which defendant carried out the shootings communicated to the victims that it was gang-related, which meant defendant knew they would not aid the police investigation—and that is indeed what happened, at least with respect to Belteton. (See Albillar, supra, 51 Cal.4th at 62 [the gang perpetrator defendants "relied on . . . the gang's reputation to ensure that the victim did not contact the police"].)
Officer Lopez was asked, "[I]f one gang shoots at another gang, that victim gang will not talk about what happened against that rival?" Officer Lopez answered, "Yes. They won't discuss it to law enforcement or the courts. They will talk amongst themselves."
Third, defendant's own statements confirmed the shooting was committed in association with the Playboys gang, not merely a "'frolic and detour unrelated to the gang'" (Albillar, supra, 51 Cal.4th at 62). That is evident from the text message he sent to the "friend" he refused to identify at trial ("Caught 2 virgins on ps" (emphasis ours)) and his trial testimony (he shot Belteton and Oscar because they looked like "gang bangers" and "the guys that shot up [Anzalone's] car").
B. Defendant's Trial Attorney Was Not Ineffective for Not Raising Due Process and Confrontation Clause Objections to Evidence of Predicate Gang Crimes
1. Additional background
Proof of a section 186.22 gang enhancement requires proof that a criminal street gang's "members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity." (§ 186.22, subd. (f).) A "'pattern of criminal gang activity' means the commission [or] attempted commission of . . . or conviction of two or more [enumerated] offenses, [the last of which occurred] within three years after a prior offense, and . . . were committed on separate occasions, or by two or more persons." (§ 186.22, subd. (e).) The offenses need not themselves be gang-related, and may be proven with certified court records establishing the convictions of two or more predicate offenses by members of the gang. (People v. Duran (2002) 97 Cal.App.4th 1448, 1460-1462 (Duran); see Evid. Code, §§ 452.5, subd. (b), 1280; § 1207.)
At defendant's trial, the prosecution offered five certified court conviction records into evidence (and had Officer Lopez testify about each). The first three records pertained to three individuals who had been convicted, respectively, of assault with a deadly weapon, unauthorized possession of ammunition, and murder. Officer Lopez was familiar with the three defendants and testified each was a Playboys member. The other two conviction records concerned defendant's sister, Maria Reyes (Maria), and his brother-in-law, Anthony Gin (Gin). Gin, who Officer Lopez testified was a member of the Playboys using the moniker "Big Tec," was convicted of attempted murder in 2017. Maria, an "associate" of the Playboys, was convicted of being an accessory to the attempted murder.
Defendant's attorney objected to the introduction of the conviction records pertaining to Gin and Maria, arguing the records were irrelevant and prejudicial (as evidence beyond what was necessary to establish the two predicate gang crimes). The court overruled the objection, finding the evidence relevant and "not overshadowed by its prejudicial nature."
2. The absence of additional objections to the certified conviction records does not constitute ineffective assistance
Defendant contends his attorney should have objected to some or all of the certified conviction records on two grounds other than those on which an objection was made. He argues his attorney should have argued the Gin and Maria conviction records were inadmissible because their crimes post-dated the attempted murders for which defendant was on trial, which raises due process notice concerns. (See, e.g., People v. Godinez (1993) 17 Cal.App.4th 1363, 1369 ["Use of acts occurring after a defendant's commission of charged offenses to establish the existence of a 'pattern of criminal gang activity' . . . deprives the defendant of notice, in advance of his conduct, that his acts will fall within the proscription of section 186.22. Due process entitles a defendant to notice, before he acts, of the criminality and consequences of his conduct"], disapproved on other grounds in People v. Russo (2001) 25 Cal.4th 1124.) He also argues his attorney should have objected to all of the certified conviction records on the ground that they were testimonial hearsay and their admission would violate the Confrontation Clause. (See, e.g., People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).)
The first of these arguments fails for lack of a showing of sufficient prejudice. Defendant cannot have been prejudiced by admission of the post-offense Gin and Maria conviction records to prove gang predicate crimes because there was evidence of three additional predicate crimes that went uncontested at trial (and only two are necessary under section 186.22). Defendant suggests, however, that the prejudice is to be found not with respect to proving predicate offenses but in the admission of what he sees as "guilt by association" evidence that "could only have bolstered the jury's impression that [defendant] was a gang member." This argument has two obvious flaws. First, defendant cannot make an ineffective assistance of counsel showing based on an objection trial counsel did make, and this is the ground on which trial counsel objected that the conviction records were prejudicial. Second, as we have explained, there was strong independent evidence of defendant's gang membership such that we can say there is no reasonable probability that exclusion of the Gin and Maria conviction records would have led to a more favorable jury determination of whether defendant was a member of the Playboys. (Strickland v. Washington (1984) 466 U.S. 668, 694.)
Defendant's second ineffective assistance argument (the Confrontation Clause claim) fails because the certified conviction records are not hearsay, much less testimonial hearsay. (See generally Sanchez, supra, 63 Cal.4th at 680 ["[A] court addressing the admissibility of out-of-court statements must engage in a two-step analysis. The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is being offered by the prosecution in a criminal case . . . a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay, as the high court defines that term"].)
Certified conviction records are not hearsay because they fall within the official records exception to the hearsay rule. (Duran, supra, 97 Cal.App.4th at 1461; Evid. Code, §§ 452.5, 1280.) Further, even if such records were hearsay, they are not testimonial statements for Confrontation Clause purposes. (See People v. Taulton (2005) 129 Cal.App.4th 1218, 1222; People v. Meraz (2016) 6 Cal.App.5th 1162, 1176, fn. 10; see also Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 324 ["[b]usiness and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because—having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial"].) Any objection on Confrontation Clause grounds would have thus been meritless, and "[f]ailure to raise a meritless objection is not ineffective assistance of counsel." (People v. Bradley (2012) 208 Cal.App.4th 64, 90).
Defendant's reliance on a 19th century case, Kirby v. United States (1899) 174 U.S. 47, to argue the contrary is unpersuasive. The jury here was not instructed it must conclude the alleged gang enhancements (or the gang predicate crimes requirement) had been proven solely by admission of the certified conviction records, absent evidence to the contrary. (Compare id. at 54.)
C. The Court Did Not Neglect to Instruct the Jury on How to Evaluate Witness Testimony
Our Supreme Court has held courts should sua sponte instruct jurors on how to consider and evaluate witness testimony. (People v. Horning (2004) 34 Cal.4th 871, 910; People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883; see also People v. Vang (2009) 171 Cal.App.4th 1120, 1131.)
Defendant contends the trial court erred by failing to sua sponte instruct the jury with either of the two pattern instructions that do just that: CALJIC No. 2.20 or CALCRIM No. 226. The Attorney General responds the trial court did not err because Horning only requires the trial court to give the "substance" of CALJIC No. 2.20 and, in the Attorney General's view, the trial court gave the substance of the general instruction regarding witness credibility by instructing the jury with CALCRIM No. 332, which provides guidance on how to evaluate expert witness testimony.
We doubt CALCRIM No. 332 is substantively interchangeable with CALJIC No. 2.20 or CALCRIM No. 226, but that is ultimately beside the point. The trial court did orally instruct the jury on how it should evaluate (non-expert) witness testimony at the outset of trial, before opening statements. In most pertinent part, here is the instruction as given and reported: "You alone must judge the credibility or believability of the witnesses in this case. In deciding whether testimony is true and accurate, use your common sense and experience. [¶] You must judge the testimony of each witness by the same standards, setting aside any bias or prejudice you may have. [¶] You may believe all, part or none of any witness's testimony. Consider the testimony of each witness and decide how much of it you believe. [¶] In evaluating a witness's testimony you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are: [¶] How well could the witness see, hear or otherwise perceive the things about which the witness testified . . . ."
The instruction the court gave obviously tracks the language of CALCRIM No. 226 and includes the features of that instruction that defendant claims were missing at trial: a reference to the jury as the sole judge of credibility and a listing of factors the jury may consider in determining credibility. The court's delivery of this instruction was sufficient to discharge its sua sponte instructional duty. (People v. Trinh (2014) 59 Cal.4th 216, 233-234 ["Neither the United States Supreme Court nor we have ever held that oral jury instructions are ineffectual unless augmented by written copies of the same instructions; to the contrary, we have established that neither the state nor the federal Constitution guarantees a criminal defendant the delivery of written instructions in addition to oral ones"]; see also § 1093, subd. (f); People v. Valenzuela (1977) 76 Cal.App.3d 218, 221 [a trial court may instruct the jury at any time during trial].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J. We concur:
RUBIN, P. J.
KIM, J.