Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Ct. No. BA251579 Curtis B. Rappe, Judge.
Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Roy C. Preminger, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Juan Jose Reynoso appeals from the judgment entered upon his convictions by jury of first degree murder (Pen. Code, § 187, count 1) and two counts of second degree robbery (§ 211, counts 2 & 3). As to all counts, the jury found to be true the special allegations that a principal personally and intentionally discharged a firearm in the commission of each of the offenses proximately causing death within the meaning of section 12022.53, subdivisions (d) and (e)(1), the offenses were committed for the benefit of, at the direction of, or in association with, a criminal street gang within the meaning of section 190.2, subdivision (a)(22) and, as to count 1, that the murder was committed while defendant was engaged in the commission of a robbery, a special circumstance within the meaning of section 190.2, subdivision (a)(17). The trial court sentenced defendant to a life term without the possibility of parole plus 25 years to life on count 1, and to six years plus 25-years-to-life terms on both counts 2 and 3. The sentence on count 3 was made concurrent to the sentence on count 1, and the sentence on count 2 was stayed pursuant to section 654.
All further statutory references are to the Penal Code unless otherwise indicated.
The jury deadlocked on the special allegation that defendant personally used a firearm, and that allegation was dismissed without prejudice.
Defendant contends that (1) his first degree felony murder conviction should be reversed because the jury instructions erroneously permitted his conviction though the murder occurred after others had already committed the robberies and before he arrived at the scene; (2) he was deprived of a fair trial by the trial court’s refusal to order the prosecutor to turn over discoverable material; (3) the trial court denied him a fair trial by erroneously denying his Pitchess motion; (4) the trial court erred in allowing the preliminary hearing testimony of a key prosecution witness for whose attendance at trial the prosecution failed to exercise due diligence; (5) there is insufficient credible evidence to sustain the convictions; (6) the prosecutor’s sobbing during closing argument constituted misconduct depriving defendant of a fair trial; (7) CALCRIM instructions Nos. 358 and 359 were conflicting and ambiguous, depriving him of his constitutional rights; (8) the convictions must be reversed as the result of cumulative prejudicial errors; or (9) alternatively, the murder conviction should be reduced due to insufficient evidence of intent.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
We affirm.
FACTUAL BACKGROUND
Prosecution Evidence
Quincy Wright
On the evening of February 24, 2002, Quincy Wright (Wright) and Gregory Damron (Damron), who knew each other from a downtown Los Angeles mission, took the subway to Hollywood to sell rock cocaine that Damron had in his pocket. Once in Hollywood, they asked a man on a bicycle, subsequently identified as “Scrappy” Herrera (Scrappy), a White Fence gang member, for a good place to sell cocaine.
At the time of trial, Wright was in custody for armed robbery. He did not receive any benefit in his case for testifying against defendant.
After receiving directions, Wright and Damron went to a liquor store where Damron bought a drink. They then went around the corner so Wright could smoke cocaine. Before he could do so, Damron walked away, saying, “Let’s go.” Wright looked down the street and saw Scrappy and several other men approaching. As the men reached Damron and Wright, Scrappy asked what they were selling, and where it was. Wright showed the men his cocaine pipe and lighter, and Scrappy again asked where it was. Wright pulled from his pocket a bus ticket to Chicago and a couple of dollars. The men slapped the cocaine pipe from Wright’s hand, took it and the bus ticket.
A fight began. Wright hit at least one person with his fist. He noticed a taller young man, wearing black pants walk by holding up his sweatshirt, displaying a gun at his waist. One of the men with whom Wright was fighting left Wright to approach Damron with the man with the gun. Wright heard Damron say to them, “I don’t have nothing,” “this is all,” and “here.” As Wright continued fighting with the other men, he heard a gunshot and saw a quick flash. Damron fell, and his attackers ran. Wright ran to a nearby restaurant to telephone police.
Danny Acevedo
As Wright and Damron were preparing to sell drugs in Hollywood, Acevedo was drinking and doing drugs in his apartment, on the corner of Harold Way and St. Andrews Place, with his half-brother Fernando Narvarez (Narvarez) who lived with him, defendant, defendant’s brother, George, and Lerid Haaccann (Haaccann). All of the men were involved with the White Fence gang. Acevedo was involved in the gang’s activities, but did not claim membership. He did allow the gang’s members to use his apartment to sleep, “chill[],” smoke, drink and party, and became very close to defendant.
Acevedo had prior convictions of grand theft auto in 1994 and felony assault with a deadly weapon and possession of a controlled substance in 1999. At the time of the offense charged here, he was on bail on an unrelated charge to which he later pled guilty and was sentenced to prison.
At some point in the evening, defendant, wearing gray sweatpants rolled up to his knees, and Haaccann went to a nearby liquor store to buy more beer. Fifteen to 30 minutes later, excited and out of breath, defendant returned. As he described what happened, he removed from his waistband a gun that Acevedo recognized as belonging to the White Fence gang. Defendant said that on the way to the liquor store he and Haaccann saw two Black males who appeared to be selling drugs. They approached the two men and asked if they were selling, because if they were, defendant intended to tell them they could not do so in White Fence gang territory. As they were talking, a car approached and three gang members jumped out. One immediately started swinging at the Black males, and a fight broke out. Defendant said that “Silent,” who Acevedo assumed referred to gang member “Little Silent,” pulled out and waved a gun. One of the Black men knocked Haaccann to the ground. One of the Black men ended up on the ground, and defendant put a gun to his head and shot him.
Fernando Narvarez
Narvarez corroborated his half-brother’s story. When defendant returned to the apartment alone after the shooting, he was breathing heavily, had a gun, and was wearing a black sweatshirt and, as was his habit, gray sweatpants pulled up to his knees. Defendant said they became involved in a fight, and he shot someone.
At various times after the shooting, when Narvarez went with defendant to the liquor store, defendant would point to the place where he shot “that fool.”
Narvarez denied cooperating with police to get his half-brother an early release from prison, but acknowledged the police contacted him and said that Acevedo gave them his number so “perhaps” Acevedo could get an early release.
Lerid Haaccann
Haaccann testified at defendant’s preliminary hearing and trial under a grant of use immunity. He reported going to Acevedo’s apartment on a February 2002 night where he ingested crack cocaine and drank beer. He brought with him a gun that he had been ordered to deliver and put it on a table.
Haaccann told no one about the charged incident until 2005, when he was in custody on another matter and was contacted by Los Angeles Police Detective Lloyd Parry, who told Haaccann that he knew Haaccann participated in the fight. To induce Haaccann to speak, Detective Parry lied and said he had a video of the incident and also showed Haaccann altered photo displays with Haaccann’s picture circled. In their initial meeting, Haaccann did not tell Detective Parry the truth, fearing he would be killed if he informed on gang members.
Later that evening, he and defendant went to a liquor store at Hollywood Boulevard and St. Andrews Place to buy more beer. As they were walking, they met Scrappy, who was riding a bicycle. Scrappy told them that two guys were selling dope up the street. Haaccann saw two Black men near the side of the liquor store, appearing to be drinking beer and talking on the sidewalk.
After they spoke with Scrappy, Haaccann and defendant continued toward the liquor store. As they walked past the two Black men, White Fence gang members, including Scrappy, attacked the two Black men, and a fist fight ensued. Haaccann joined the fight, and one of the Black men came at him. Haaccann tried to grab the man, and someone punched Haaccann in the jaw, causing him to fall. Defendant came over and asked Haaccann what happened. Defendant then shot the man who had punched Haaccann, using the gun that Haaccann had delivered to Acevedo’s apartment. Haaccann, defendant and the other White Fence gang members ran from the scene. Haaccann walked around a few blocks and then returned to Acevedo’s apartment where he thanked defendant for saving his life.
Juan Andrade
Andrade did not appear for trial despite having been served with a subpoena. Consequently, his preliminary hearing testimony was read into the record. Andrade was in his apartment at approximately 9:05 p.m., on February 24, 2002, when he heard screaming outside and someone say something about selling dope “in their hood.” He looked outside and saw five or six males beating up one person. As he walked out of his apartment, he saw someone’s arm go up, apparently with a gun, and then heard one gunshot. The person he thought fired the shot was wearing a white t-shirt, a black baseball cap, and gray sweatpants that were rolled or bunched like shorts to the upper calf area. He could not identify defendant as the shooter. After the shooting, the shooter and other attackers ran. Andrade telephoned police, and told them that the assailants “dropped” the victim, and the other attackers started stomping on him. One took out the gun and shot him. He believed the attackers were gang members.
Andrade did not want to testify because he was afraid for himself and his family.
The Investigation
Detective Parry arrived at the crime scene after an ambulance had taken Damron to the hospital. He observed items of Damron’s clothing, which had been removed by paramedics, and blood spatter on the sidewalk. A .380-caliber bullet casing and a paper bag were on the sidewalk. A wristwatch was also found at the scene.
Nine months after the shooting, Detective Parry showed Wright a photographic six pack lineup. Wright selected one of the photos as depicting the person he had seen on the bicycle. He was also shown a number of color photographs of local gang members but did not identify anyone else involved in the shooting. Andrade was shown a book containing photographs of gang members, including Acevedo, Psycho, and Little Silent. Andrade did not identify Little Silent as being involved in the incident.
At a live lineup that included defendant, approximately two and one half years after the shooting, Wright selected another person as having been present at the shooting. The person selected was not defendant and had no connection to the White Fence gang.
Detective Parry contacted defendant two years after the shooting, when defendant was in custody, and told him that he knew defendant and his “homeboys” had been involved in a shooting. Detective Parry said he had spoken to Haaccann, Scrappy, and others and wanted to hear defendant’s version. The detective showed defendant a photographic six pack with defendant’s picture circled, and lied to defendant that his fingerprints were found on the victim’s watch.
Defendant told Detective Parry that he had been at Acevedo’s apartment, drinking and smoking. He went to the liquor store to get more beer. He met up with Haaccann, who walked with him. Defendant saw his “homeys,” including Scrappy, “stomping on a couple of people.” In accordance with gang rules, defendant joined his buddies in the fight and kicked one of the guys in the body a couple of times. Defendant heard a gunshot, but did not see anyone with a gun and did not know who was shot. He did not take anything from the victims. Detective Parry tried to record this interview on a concealed cassette recorder, but when he attempted to listen to the cassette after the interview, it was blank.
An autopsy on Damron established that he died of a single gunshot wound to the head fired from a distance of less than two to three feet. Damron also had contusions and abrasions on his head and right hand, consistent with blunt force trauma from fighting. The bullet removed from Damron’s head and the expended casing found at the scene were fired from the same handgun that was found in the rear of a vehicle driven by Karen Arzumanyan on April 2, 2002. Defendant’s fingerprints were not found on the gun barrel or on any other items tested.
Gang Evidence
Detective Frank Flores testified as a gang expert to his opinion that defendant was an active member of the Locos, a clique of the White Fence gang; Damron was shot in that gang’s territory; the White Fence gang’s primary activities were assaults, murder, extortion, robbery, theft and drug trafficking; the gang’s chief source of income was drug sales; the gang allowed nongang members to sell narcotics in its territory only if the seller agreed to pay a tax to the gang and it challenged those who attempted drug sales without such an agreement because such sales disrespect the gang; and gang members would demand such a person pay the tax, or the person would be attacked or killed. Detective Flores testified to two predicate felony offenses committed by other White Fence gang members.
Detective Flores also observed that gang members avoid criminal prosecution by intimidating people in their territory and individuals willing to identify a gang member who has engaged in criminal activity more often than not change their minds as a result of the intimidation. He also noted that members of a gang generally share guns with each other, and members of one clique of a gang share and pass around guns with members of another clique of the same gang.
Responding to hypothetical questions, Detective Flores opined that under facts similar to those presented here, if two White Fence gang members were confronted by a person they were informed was selling drugs in their territory without an agreement to pay a tax, beating and shooting that person would be for the benefit of the gang. He also opined that a gang member who shoots a stranger he sees hitting a fellow gang member would also have been acting for the benefit of the gang. If a gang member is assaulted with no response, the gang loses face.
DISCUSSION
I. The Jury Was Properly Instructed on Robbery Felony Murder.
A. Applicable Jury Instructions
The trial court instructed the jury in accordance with Judicial Council of California Criminal Jury Instructions (2006) CALCRIM Nos. 540B (felony murder-where a co-participant commits the fatal act), 549 (felony murder-special circumstance of murder during robbery), and 703 (felony murder, intent requirement for accomplice).
CALCRIM No. 540B, as given, instructs that defendant could be guilty on a felony murder theory if “another person did the act that resulted in the death,” if “(1) The defendant committed, or aided and abetted a Robbery; (2) The defendant intended to commit, or aid and abet the perpetrator in committing a Robbery; (3) If the defendant did not personally commit a Robbery, then a perpetrator, whom the defendant was aiding and abetting, personally committed a Robbery; AND (4) While committing a Robbery, the perpetrator did an act that caused the death of another person. . . . [¶] . . . [¶] The defendant must have intended to commit or aid and abet the felony of robbery before or at the time of the act causing the death.” (CALCRIM No. 540B.)
B. Defendant’s Contentions
Defendant contends that instructional errors allowed the jury to convict him of felony murder on an invalid theory of post-robbery involvement in the assault and murder, though there was no evidence linking him to any pre-murder involvement in the robbery. He argues that CALCRIM Nos. 540B, 549 and 703 misled the jury by failing to require that the robbery and murder be contemporaneous. This contention is meritless.
C. Adequacy of the Instructions
A killing committed in the perpetration of robbery is first degree murder. (People v. Cavitt (2004) 33 Cal.4th 187, 197; § 189.) Everyone aiding or abetting the commission of robbery are guilty of first degree murder when one of them kills while acting in furtherance of the common design. (§ 189; People v. Pulido (1997) 15 Cal.4th 713, 716.)
We evaluate whether an instruction is misleading by reviewing the instructions as a whole. (People v. Campos (2007) 156 Cal.App.4th 1228, 1237.) It is only misleading if in the context of the entire charge there is a reasonable likelihood that the jury misconstrued or misapplied its words. (Ibid.)
CALCRIM No. 540B provides that a defendant can be guilty of felony murder where the defendant did not personally commit the murder, if the defendant aided and abetted or committed the robbery, and the perpetrator “[w]hile committing a Robbery, . . . did an act that caused the death of another person.” CALCRIM No. 549 also states that to find felony murder under the commission of a robbery special circumstance, the act causing death and robbery must be part of one continuing transaction. These instructions adequately informed the jury that the robbery and murder had to be contemporaneous.
Even if the instructions were misleading on this point, the jury was not misled as it found “the allegation that the murder was committed by defendant JUAN JOSE REYNOSO while engaged in the commission of the crime of ROBBERY, within the meaning of Penal Code Section 190. (2)17) [sic] to be true.” (Italics added.)
D. The Evidence Supports the Jury’s Finding That the Murder Occurred While Defendant Was Engaged in the Commission of the Robbery
There was sufficient evidence that defendant was at the scene of the shooting prior to completion of the robbery and intended to aid and abet in the robbery. A robbery is not complete until the perpetrator reaches a place of temporary safety, which is not the scene of the robbery. (People v. Wilson (2008) 43 Cal.4th 1, 17; People v. Young (2005) 34 Cal.4th 1149, 1177.) The jury was so instructed. Whether a defendant has reached a place of temporary safety is a question of fact for the jury. (People v. Johnson (1992) 5 Cal.App.4th 552, 559.)
The trial court instructed the jury in accordance with CALCRIM No. 3261 that the crime of robbery continues until the perpetrators have actually reached a temporary place of safety. The perpetrators have reached a place of safety if they have successfully escaped from the scene, they are no longer being chased, they have unchallenged possession of the property, and they are no longer in continuous control of the person who is the target of the robbery. (CALCRIM No. 3261.)
Defendant and Haaccann arrived at the scene of the shooting while a fistfight was occurring and both victims were alive, the shot had not yet been fired, and the victims had not yet been subdued. The robbery scene was clearly not a place of temporary safety, notwithstanding defendant’s claim that it was “a dark side street where they outnumbered the victims four to two.” (See People v. Wilson, supra, 43 Cal.4th at p. 17.) In fact, Andrade was able to observe the melee from his second floor window, demonstrating that the location was not hidden from witnesses who might contact authorities. Furthermore, immediately after the shooting, the attackers ran, hardly the actions of robbers in a place of safety.
“[E]vidence may support the conclusion that no place of temporary safety has been reached while the robber is still encumbered with the victim, ‘who at first opportunity might call the police.’” (People v. Barnett (1998) 17 Cal.4th 1044, 1153.) Here, when defendant arrived at the scene, the White Fence gang members were fighting with the victims. After the shooting, Wright ran to call the police. Thus, demonstrating that the robbers had not yet successfully escaped from the scene or unencumbered themselves from the victims.
There was also evidence that defendant arrived at the scene before the property was taken from Damron and that he assisted in the taking. Wright testified that one of the men with whom he was fighting, left and approached Damron with the man with the gun, who was identified by several witnesses as defendant. Wright heard Damron say to them, “I don’t have nothing,” “this is all,” and “here.” This evidence supports the reasonable inference that defendant participated in taking property from Damron before he was shot.
II. Discovery of Expert Report
A. The Discovery Motions
Detective Parry attempted to surreptitiously record an interview with defendant who was then in custody. According to the detective, defendant made significant admissions during this interview. Defendant denied making any admissions. When the detective attempted to replay the tape recording of the interview, he discovered there was nothing on it.
A year before trial and before defendant had an opportunity to examine the cassette tape and recording equipment, Detective Parry sent them to the Federal Bureau of Investigation (FBI) where David Snyder (Snyder), a forensic examiner of electronically recorded audio, tested them. Thereafter, defendant’s expert, John Freytag (Freytag), was provided the cassette tape and recording equipment for inspection and testing, though not Snyder’s report.
Defendant filed a motion for pretrial discovery of, among other things, Snyder’s report, which Freytag stated was necessary because the testing done by Snyder “can cause damage to an evidence tape . . . and may impact alternative methods of examining a tape. . . .” At the hearing on the motion, defense counsel argued that once a witness is identified as a prosecution rebuttal witness, discovery is required. He also stated that he did not yet have a report from Freytag to suggest any impropriety regarding the failed recording. In response, the prosecutor said she would only call Snyder as a witness if the defense implied that something was done deliberately to alter the tape, and it was her position that she did not have to give the defense Snyder’s report unless the defense expert was able to suggest that there was some nefarious conduct regarding the recording. The trial court denied the motion, telling defense counsel: “You’re not yet in a position where you can call anybody on this. . . . Once your guy [examines] this and says something that you’re going to use in trial then the whole thing changes.”
In the defendant’s opening statement on April 17, 2006, the jury was told that Detective Parry was going to testify that he tried to record the interview with defendant but that the recorder did not work.
On April 25, 2006, defense counsel sought to exclude Detective Parry’s testimony as a sanction because Freytag was going to testify and had not received the FBI report in a timely manner. The defense theory for requesting the report was now different from the discovery motion, as the new focus was not on the cassette tape, but on the “extensive tests” done on the recorder by the FBI. The prosecutor argued that the defense had the recorder, tape and microphone, and could have tested each. The trial court agreed with the prosecutor. The prosecutor added that following defense counsel’s opening statement, she tentatively decided to call Snyder as a witness in her case-in-chief to show the jury that nothing “nefarious” occurred. She then gave defense counsel Snyder’s report, which noted that Snyder experienced one instance when the recorder failed to record when in the record mode. She also pointed out that Freytag had had an opportunity to examine and test the cassette recorder, tape and microphone, and had returned them. She offered to make them available to Freytag for further testing. The trial court told defense counsel to conduct the tests he needed.
On April 27, 2006, when Detective Parry was called to testify, defense counsel again raised the issue, claiming a Brady violation because he had not received Snyder’s report until it was too late to test the cassette tape, again refocusing his challenge on the cassette tape. In addition to repeating the arguments she had already made, the prosecutor stated that she had reviewed Freytag’s report, and found that it basically reached the same conclusions as Snyder, although Freytag did not experience any problem with the recorder. The trial court overruled the defense objection.
Brady v. Maryland (1963) 373 U.S. 83.
B. The Experts’ Trial Testimony
At trial, Snyder testified that the record light on the cassette recorder sometimes illuminated regardless of the mode in which the recorder was being used, indicating that it was malfunctioning. He listened to the cassette tape and heard only a clicking sound that lasted less than a second, six minutes into the second side. The rest of the tape was blank. He opined that the clicking sound was consistent with the cassette recorder having been momentarily placed in the record mode and immediately stopped. Snyder did not observe any evidence that the tape had been physically altered or erased. He opined that his observations were consistent with someone having attempted to record on the cassette tape while the record light was on, but the recorder was not actually in the recording mode.
Freytag testified that he also tested the cassette tape and the cassette recorder. He performed his testing after the recorder and tape had been examined by Snyder. After reviewing Snyder’s report, Freytag testified that he would not have done anything differently if he had Snyder’s report before he did his testing. He found no failures on the tape. The cassette recorder and microphone functioned properly every time he tested them. In his opinion, nothing had ever been recorded on the tape, except for a fraction-of-a-second clicking sound on the second side. Freytag determined that the tape had not been erased. It did, however, go from side A to side B because there was a start stop signature. He also found that the record light was on whether in the record or play modes.
C. Defendant’s Contention
Defendant contends that denial of his discovery request for Snyder’s report deprived him of a fair trial. He argues that because the prosecutor did not produce that report before Freytag tested the cassette recorder and tape, Freytag was unaware of Snyder’s finding that the recorder malfunctioned. As a result, the trial court erred in allowing Snyder to testify and should have precluded Detective Parry’s testimony concerning his interview of defendant. We need not address this contention because we conclude that even if the trial court erred in its discovery ruling, any error was harmless by even the most stringent application of the “beyond a reasonable doubt” standard. (People v. Lara (1994) 30 Cal.App.4th 658, 676.)
D. Lack of Prejudice
Defendant has failed to meet his burden of establishing that he suffered any prejudice from the claimed discovery error. (People v. Carpenter (1997) 15 Cal.4th 312, 386.) Shortly after trial began Freytag saw Snyder’s report. Freytag thereafter testified that he would not have done anything differently in his testing had he seen the report earlier. This testimony by itself supports the conclusion that the trial court’s discovery ruling did not harm defendant. In addition, Freytag’s conclusions substantially agree with those of Snyder, and find no wrongdoing with respect to the attempted recording. Though the trial court denied the pretrial motion for Snyder’s report, it was voluntarily produced with the promise to make the recorder, tape and microphone available if needed, before Freytag testified. While this may not have been the optimum time for production, it gave Freytag ample time for further examination or testing before the close of testimony on April 28, 2006.
Furthermore, even if the trial court found there to be a discovery violation, it is unlikely that it would have excluded the testimony of Detective Parry or Snyder. “[A] court may make any order necessary to enforce the [discovery] provisions, . . . including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure.” (§ 1054.5, subd. (b).) A witness can be prohibited from testifying only if all other sanctions have been exhausted. (§ 1054.5, subd. (c).) Prohibiting testimony is not an appropriate discovery sanction in a criminal case absent showing of significant prejudice and willful conduct. (People v. Gonzales (1994) 22 Cal.App.4th 1744, 1757-1758.) The remedy imposed, if any, is subject to the trial court’s discretion, which we review for abuse. (People v. Lamb (2006) 136 Cal.App.4th 575, 581.) There was little, if any, prejudice here to warrant the exclusion sanction and there were a number of less severe remedies that would have been appropriate.
III. Defendant Has Failed to Provide a Record Sufficient to Allow Consideration of His Pitchess Claim
Defendant filed a Pitchess motion seeking personnel information and records of Detectives Parry and J. Padilla, relating to complaints against them for, among other things, false testimony, fabrication of police reports and probable cause, perjury, false or misleading internal reports, and dishonesty. The declaration in support of the motion stated that the records were material because the two detectives interviewed defendant, and defendant claimed their assertion that he made admissions was fabricated.
The record on appeal does not include a reporter’s transcript of any hearing on the Pitchess motion. The only reference to such a hearing is contained in the minute order of July 8, 2005, which notes: “The court holds an in-camera hearing, as further reflected in the court-ordered sealed notes of the official court reporter . . . . The court signs an order and the City Attorney’s office must comply by 7/15/05.”
Defendant contends that the trial court erred and deprived him of his right to a fair trial when it “denied the Pitchess motion.” The Attorney General contends that defendant has not established from the record that the trial court denied his Pitchess motion or that any error or prejudice to him occurred. We agree with the Attorney General.
As set forth above, the minute order of July 8, 2005, suggests that there was an in camera hearing at which a deputy city attorney was present resulting in an order by the trial court to comply. Under the procedure articulated in People v. Mooc (2001) 26 Cal.4th 1216, an in camera proceeding would only have occurred if the trial court determined that there was good cause for disclosure and granted the Pitchess motion. Only then would the custodian of the officer’s records provide the potentially relevant personal records to the court for review in an in camera proceeding to determine whether something was to be disclosed. (People v. Mooc, supra, at p. 1226-1227.)
In the absence of a tran CHAVEZ, J. script of the hearing on the Pitchess motion or of the in camera proceeding, we can only speculate as to what occurred. To preserve a point for review on appeal, a defendant must provide an adequate record. (People v. Romo (1975) 14 Cal.3d 189, 195.) Defendant has failed to do so and has consequently failed to preserve his Pitchess claim.
IV. The Trial Court Did Not Err in Admitting Andrade’s Preliminary Hearing Testimony
Andrade was reluctant to testify at defendant’s preliminary hearing and told Detective Parry he was afraid for his family. Nonetheless, he testified that he was unconcerned about coming to court and did not fear retaliation. He also testified that the shooter was wearing grey sweatpants rolled up to the knee, though he could not identify defendant as being that person. Andrade subsequently failed to comply with a subpoena for trial.
A. The Due Diligence Hearing
On April 24, 2006, the following evidence was adduced at a hearing to determine whether the prosecution had exercised due diligence in attempting to secure Andrade’s presence at trial: Detective Parry testified that at the preliminary hearing, Andrade appeared nervous and afraid, and that the detective saw defendant’s brother, George, seated next to Andrade in the hallway, and Andrade, appearing nervous and frightened, get up and walk away from George.
On March 30, 2006, Detective Parry served a subpoena for the April 14, 2006 trial on Andrade at his work site, placing him “on call.” The detective explained what it meant to be “on call” and the consequences of failing to comply with the subpoena. Andrade agreed to the “on call” arrangement and signed the subpoena. He led Detective Parry to believe he would appear when needed.
On April 14, 2006, Detective Parry telephoned Andrade, at the cell phone number previously used, to remind him of his on call status. He reached Andrade’s voice mail.
On April 17, 2006, the following Monday, Detective Parry telephoned Andrade several times, leaving messages “explaining the situation for not appearing.” He also went back to Andrade’s workplace and learned that Andrade worked for a contractor. The contractor then informed the detective that Andrade was working with his father that day and that the contractor had not heard from him. Detective Parry then had his Spanish speaking partner talk with Andrade’s mother, with whom Andrade lived, about the unreturned messages. Andrade’s mother said that neither she nor her husband had seen Andrade since the day he was served with the subpoena.
On April 19, 2006, Detective Parry spoke with Andrade’s father, and was told that he had not seen nor spoken to his son since March 30, 2006, and that his son was frightened and had run away.
On April 20, 2006, the district attorney’s investigator spoke with Andrade’s parents. He also telephoned area hospitals, the Los Angeles County Coroner’s office, and checked the district attorney system records. He found no record of Andrade in the Department of Motor Vehicles and determined that Andrade was not in the custody of the Immigration and Naturalization Service.
On April 21, 2006, Detective Parry again left a number of messages for Andrade. Also, for the second time, Detective Parry combed the neighborhood in which Andrade lived, looking for him. He prepared a flier with Andrade’s picture and body attachment information, which was distributed to other patrol officers in the hopes that he would be spotted.
On Saturday, April 22, 2006, other officers went to Andrade’s residence and again spoke with his parents. The officers were told that he had returned on the evening of April 19, 2006, without saying anything, and left early the next morning. The parents did not know where he had gone.
After serving Andrade’s parents with a subpoena for the due diligence hearing, the district attorney’s investigator received a telephone call on the morning of Sunday, April 23, 2006, from Andrade’s father who reported having received a call from Andrade. The father told the investigator that Andrade was going to call him. A short time later, the investigator received a call from someone purporting to be Andrade, who said that he was calling from Mexico City en route to Acapulco, he had no money, and he did not know when he was going to arrive. At the conclusion of the call, the investigator attempted, through the operator, to locate the number from which it came, but was unable to do so.
At the due diligence hearing, Andrade’s father testified that his son was not a United States citizen and had no papers to allow him to return to the United States.
At the conclusion of the hearing, defense counsel stated: “I don’t think I could stipulate to [due diligence] but it would appear without a stipulation that Mr. Andrade has not made himself available.” The trial court stated that it did not “know what else the People could do to produce the witness,” with which statement defense counsel agreed. The trial court then found that the prosecutor exercised due diligence, and Andrade was unavailable.
B. Contentions
Defendant contends that the trial court erred in allowing Andrade’s preliminary hearing testimony to be read into evidence because the prosecutor had failed to exercise due diligence in procuring his attendance. He argues that “the prosecution, knowing that Andrade appeared to be afraid in October 2004 [defendant’s preliminary hearing], should have kept a closer watch on [him] when the trial commenced.” He further contends that the trial court’s error deprived him of his right to confront and cross-examine witnesses against him, as guaranteed by the Sixth Amendment to the United States Constitution. Defendant argues that while “there is opportunity for cross-examination during a preliminary hearing, the scope of a preliminary hearing is limited.”
The Attorney General responds that these claims are “untimely for purposes of appeal because defense counsel did not object in the trial court that the prosecution had failed to exercise due diligence.” We agree.
C. Forfeiture
At the conclusion of the due diligence hearing, defendant’s counsel did not claim that the prosecution failed to exercise due diligence or that defendant’s right to confrontation was violated. In fact, counsel acknowledged that Andrade was unavailable and agreed with the trial court that he did know what more the prosecution could have done to procure Andrade’s attendance. Such objections cannot be raised for the first time on appeal. (People v. Raley (1992) 2 Cal.4th 870, 892 [admissibility of evidence and confrontation clause claim waived].) Even if the claims had not been waived, we would nonetheless reject them.
D. Due Diligence
Evidence Code section 1291 provides that former testimony is not inadmissible by the hearsay rule if the declarant is “unavailable as a witness,” and “[t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.” Evidence Code section 240, subdivision (a)(5) provides that a witness is unavailable where the witness is “[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court’s process.”
We review the trial court’s determination of due diligence de novo. (People v. Cromer (2001)24 Cal.4th 889, 901.) Due diligence to secure the presence of a witness is determined by the facts of each case and is incapable of “‘mechanical definition.’” (People v. Sanders (1995) 11 Cal.4th 475, 523.) We assess due diligence by what has been done to effectuate the witnesses’ attendance at trial, not by the suggestions of “Monday morning quarterbacks” as to what should have been done, but was not. (People v. Diaz (2002) 95 Cal.App.4th 695, 706 [“An appellate court ‘will not reverse a trial court’s determination [under Evidence Code section 240] simply because the defendant can conceive of some further step or avenue left unexplored by the prosecution. Where the record reveals, . . . that sustained and substantial good faith efforts were undertaken, the defendant’s ability to suggest additional steps (usually, as here, with the benefit of hindsight) does not automatically render the prosecution’s efforts “unreasonable.” [Citations.] The law requires only reasonable efforts, not prescient perfection’”].)
While there is no universal formula to determine whether a prosecutor has exercised due diligence, courts look to the totality of the circumstances, including the character of the efforts made, whether the prosecutor reasonably believed the witness would appear willingly or if the prosecutor had reason to believe the witness would not, whether the search was timely begun, whether the witness would have been produced if reasonable diligence had been exercised (People v. Sanders, supra,11 Cal.4th at p. 523), and how vital the witness’s testimony is to the case. (See People v. Hovey (1988) 44 Cal.3d 543, 564.)
Andrade’s testimony corroborated the testimony of Haaccann, who saw defendant shoot Damron; Narvarez and Acevedo, who testified that defendant admitted being the shooter to them; and Detective Parry, who testified that defendant admitted to him that he was at the scene of the shooting and participated in the fight. Cumulative testimony is not vital. (See People v. Hovey, supra, 44 Cal.3d at p. 564.) Moreover, Andrade’s testimony was circumstantial. He could only identify the shooter’s clothing, which matched the description of defendant given by others who identified him. He could not identify defendant as the shooter.
The prosecution had every reason to believe Andrade would appear at trial. He testified at defendant’s preliminary hearing despite his understandable fear. At no time during that testimony did he intimate that he would not appear for trial nor did the prosecution otherwise have such a suspicion. Two weeks before trial, he was served with a subpoena compelling his attendance. When served, he led Detective Parry to believe that he would attend trial, agreeing to an on call arrangement. He had a stable residence with his parents at the same location for some time. Only when Andrade failed to respond to Detective Parry’s telephone call on the day scheduled for trial did he give the first indication that he might not comply with the subpoena.
Detective Parry immediately began efforts to locate him. Calls were placed to the cell phone at which Andrade had been previously contacted, and messages were left. Detective Parry both went to Andrade’s place of employment and spoke with Andrade’s parents, who reported that he had run away and had not been seen since he was served with the subpoena. Detective Parry combed Andrade’s neighborhood looking for him on multiple occasions and prepared a flier with Andrade’s photograph which was given to patrol officers to aid them in searching for him. The district attorney’s investigator checked court records and determined that Andrade was not in the criminal system. He also checked local hospitals and the coroner’s office, with no success. The Department of Motor Vehicles and the Immigration and Naturalization Service had no record of him. When the investigator received a telephone call from a person purporting to be Andrade, he unsuccessfully attempted to determine from where the call was made. As the trial court stated, “I don’t know what else the People could do.”
Defendant nonetheless argues that the prosecutor did not “keep up on Andrade’s whereabouts in the two weeks before trial. But ordinarily, “[t]he prosecution is not required ‘to keep “periodic tabs” on every material witness in a criminal case. . . .’ [Citation.] Also, the prosecution is not required, absent knowledge of a ‘substantial risk that this important witness would flee,’ to ‘take adequate preventive measures’ to stop the witness from disappearing. [Citation.]” (People v. Wilson (2005) 36 Cal.4th 309, 342; People v. Martinez (2007) 154 Cal.App.4th 314, 328.) There was no evidence Andrade presented a greater risk of nonappearance than any witness in a gang-related case.
E. Confrontation Clause
An accused in a criminal prosecution has the right “to be confronted with the witnesses against him” (U.S. Const., 6th Amend.; People v. Louis (1986) 42 Cal.3d 969, 982, overruled on other grounds in People v. Mickey (1991) 54 Cal.3d 612, 672, fn. 9) to “ensure that the defendant is able to conduct a ‘personal examination and cross-examination of the witness, in which [the defendant] has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.’” (People v. Louis, supra, at p. 982.)
But the right to confront witnesses is not absolute. (People v. Cromer, supra, 24 Cal.4th at p. 897.) “Traditionally, there has been ‘an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant [and] which was subject to cross-examination . . . .’” (Ibid.) Under California law the prosecution must show reasonable or due diligence in attempting to procure the witness at trial. (Ibid.)
Defendant argues that he did not have a bona fide opportunity to cross-examine Andrade because defendant had a different interest and motive in cross-examining him at the preliminary hearing, than he did at trial. At the preliminary hearing, he only tried to clarify the witnesses’ story, and did not explore all of the credibility issues. Defendant’s argument misses the mark. The issue is not the extent of cross-examination actually conducted at the prior hearing, but, in the words of Evidence Code section 1291, whether appellant “had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.” (Evid. Code, § 1291, subd. (a)(2), italics added.) Defendant had that opportunity and availed himself of it. The extent of the cross-examination was his choice. While the purpose and goals of a preliminary hearing are not identical to those at trial, the issues are sufficiently similar so as to have given defendant an interest and motive to cross-examine at the preliminary hearing that was similar to trial, although he may have strategically determined to cross-examine differently.
F. Harmless Error
Even if we were to conclude that the trial court erred in permitting the prosecution to admit Andrade’s preliminary hearing testimony, such error was harmless by even the most stringent reasonable doubt standard. (Chapman v. California (1967) 386 U.S. 18, 23-24.) As discussed above, Andrade did not identify defendant as the shooter, but merely saw a man in grey sweatpants rolled up to his knee do so. There was other evidence identifying defendant as the shooter: Haaccann, who was present at the scene of the shooting, saw defendant shoot the man who had punched Haaccann in the head; defendant admitted to Acevedo and Narvarez, that he was the shooter; and Detective Parry testified that defendant admitted being present at the scene and participating in the fight, although denied being the shooter. Andrade’s cumulative, circumstantial evidence, compared to this compelling direct evidence would have had little impact on the jury’s verdict.
V. There is Sufficient Credible Evidence to Support Defendant’s Convictions
Defendant contends that there is insufficient credible evidence to sustain his convictions. He argues that, other than Andrade, who failed to comply with a trial subpoena and attend trial, “the prosecution’s witnesses were drug dealers, convicted felons, and gang members, either with an axe to grind or with the expectation of leniency in unrelated matters, or both.”
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995)37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless ‘“upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, at p. 331.)
There is a well-articulated exception to the policy that appellate courts defer to the fact finders’ assessment of credibility. Where testimony is “improbable” or “incredible” a conviction cannot be based upon it. (People v. Casillas (1943) 60 Cal.App.2d 785, 794; People v. Huston (1943) 21 Cal.2d 690, 693 [“inherently improbable”], disapproved on other grounds in People v. Burton (1961) 55 Cal.2d 328, 352; and People v. Carvalho (1952) 112 Cal.App.2d 482, 489 [testimony “unbelievable per se”].) But to disregard testimony as “inherently improbable,” the testimony must be “fantastic” and “do violence to reason, challenge credulity, and in the light of human experience, emasculate every known propensity and passion of people under the conditions testified to by the prosecutrix.” (People v. Carvalho, supra, at p. 489.) It must “involve a claim that something has been done which it would not seem possible could be done under the circumstances described.” (Ibid.) “To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.]” (People v. Huston, supra, at p. 693.)
Though there was significant evidence casting doubt on each of the prosecution witnesses’ credibility, their testimony was not “unbelievable per se” or physically impossible and did not do violence to reason. Evidence of a reason to disbelieve a witness does not make the witnesses’ testimony “inherently incredible,” impossible to be true, or illogical. Evidence of a witness’s dishonesty, criminal record, bias or other propensity or motivation to lie presents the very kind of credibility determination reserved for the jury’s exclusive province. (See People v. Barnes (1986) 42 Cal.3d 284, 306.) Here, the jury evaluated the prosecution witnesses in light of the evidence and arguments of counsel that they were not to be believed. We cannot substitute our judgment for the jury’s. (People v. Garcia (1993) 17 Cal.App.4th 1169, 1183.)
When the evidence is properly considered, it amply supports defendant’s convictions, as fully set forth in parts I. D and IV. F, ante.
VI. Prosecutorial Misconduct
At the conclusion of the prosecutor’s opening argument, defense counsel requested a mistrial because “apparently the D.A. began sobbing.” The prosecutor objected that “sobbing is too strong a word.” Defense counsel responded, “Well, it looked like sobbing to me. She was crying . . ., it wasn’t uncontrollable or hysterical . . . but I think that that demonstration of emotion is so prejudicial. . . .”
The trial court denied the motion, stating, “As you admit it was not uncontrollable. It was barely perceptible. And this jury is going to be instructed that they’re not to decide the case on emotion but rather decide it on the evidence.”
Defendant contends that the prosecutor committed prosecutorial misconduct by her display of emotion and that the trial court erred in denying his request for a mistrial. We disagree.
The well-established federal and state standards for assessing a claim of prosecutorial misconduct were set forth by our Supreme Court in People v. Samayoa (1997) 15 Cal.4th 795, 841: “‘“A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’”’ [Citations.]” Isolated instances of technical misstatement do not constitute a pattern of egregious behavior warranting reversal. (People v. Frye (1998) 18 Cal.4th 894, 978.)
Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’ [Citation.]” (People v. Samayoa, supra,15 Cal.4th at p. 841; People v. Ochoa (1998)19 Cal.4th 353, 427.) Prosecutorial misconduct does not require that the prosecutor act with a culpable state of mind. (People v. Hill (1998) 17 Cal.4th 800, 823, fn.1.)
The prosecutor’s actions here did not constitute prosecutorial misconduct under either the federal or state standard. The challenged behavior was not an egregious pattern of conduct. It was an apparently brief and isolated, “barely perceptible” instance of the prosecutor crying during closing argument. Furthermore, this spontaneous show of emotion was not reprehensible or deceptive and cannot be said to have infected the trial with unfairness. While attorneys should make every effort to keep their emotions in tow when making a presentation before the jury, they are not automatons immune from reacting to the horrors with which they must oftentimes deal.
Moreover, even if the prosecutor’s actions constituted misconduct, it was not prejudicial. Prosecutorial error is prejudicial where it is “reasonably probable that a result more favorable to the appealing party would have been reached” had the prosecutor not made the improper comments. (People v. Watson (1956) 46 Cal.2d 818, 836 ; People v. Garcia (1984) 160 Cal.App.3d 83, 93-94, fn. 12 [prosecutorial misconduct in exposing a jury to improper factual matters usually tested under the Watson standard]; see also People v. Medina (1990) 51 Cal.3d 870, 896.) In the context of this two-week trial, with graphic discussion of the heinous offenses charged, a momentary episode of barely perceptible emotion during closing argument did not likely affect the outcome. This is particularly so in light of the trial court’s instructions to the jury in accordance with CALCRIM No. 200 that it must not decide the case on “bias, sympathy, prejudice, or public opinion,” which we presume it followed. (People v. Chavez (1958) 50 Cal.2d 778, 790.)
VII. CALCRIM Nos. 358 and 359 are Not in Conflict
The jury was instructed in accordance with CALCRIM No. 358, that evidence of defendant’s oral out-of-court statements must be considered with caution, and with CALCRIM No. 359, that defendant could not be convicted of any crime on his out-of-court statements alone, but could be identified as the perpetrator solely on such testimony. Defendant objected to these instructions, arguing that the requirement in CALCRIM No. 358 that oral statements of the defendant must be considered with caution and the statement in CALCRIM No. 359 that the identity of the person who committed the crime and the degree of the crime may be proved by the defendant’s statement alone, were “confusing and contradictory.” The trial court overruled the objection, pointing out that defendant could explain it in closing argument.
CALCRIM No. 358, as given, provides: “You have heard evidence that the defendant made oral or written statements before the trial. You must decide whether or not the defendant made any such statements, in whole or in part. If you decide that the defendant made such statements, consider the statements, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to such statements. [¶] You must consider with caution evidence of a defendant’s oral statement.”
CALCRIM No. 359, as given, provides: “The defendant may not be convicted of any crime based on his out-of-court statements alone. Unless you conclude that other evidence shows someone committed the charged crime, you may not rely on any out-of-court statements by the defendant to convict him of that crime. [¶] The other evidence may be slight and need only be enough to support a reasonable inference that someone’s criminal conduct caused an injury, loss, or harm. The other evidence does not have to prove beyond a reasonable doubt that the charged crime actually was committed. [¶] The identity of the person who committed the crime and the degree of the crime may be proved by the defendant’s statements alone. [¶] You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt.”
Defendant contends that CALCRIM No. 358 and CALCRIM No. 359 are ambiguous and conflicting, thereby depriving him of his constitutional rights. He argues that because of the contradictions in the statements in CALCRIM No. 358, that out-of-court statements by the defendant must be viewed with caution, and CALCRIM No. 359, that the identity of the person who committed the crime and the degree of the crime can be established solely by defendant’s out-of-court statements, “the jury was free to disregard the cautionary instruction and convict [defendant] based solely on Detective Parry’s narration of what [defendant] allegedly told him.” This contention is without merit.
The corpus delicti of a crime cannot be proved by the out-of-court statements of the defendant alone, but must be corroborated by other evidence. (People v. Herrera (2006) 136 Cal.App.4th 1191, 1200, citing People v. Alvarez (2002) 27 Cal.4th 1161, 1164.) But the identity of the perpetrator is not an element of the corpus delicti and can be established solely by the defendant’s out-of-court statements. (People v. McNorton (2001) 91 Cal.App.4th Supp. 1, 6; People v. Cobb (1955) 45 Cal.2d 158, 161; see also People v. Jones (1998) 17 Cal.4th 279, 320.)
As previously stated, we evaluate whether an instruction is misleading by reviewing the instructions as a whole. (People v. Campos, supra,156 Cal.App.4th at p. 1237.) It is only misleading if in the context of the entire charge there is a reasonable likelihood that the jury misconstrued or misapplied its words. (Ibid.)
CALCRIM Nos. 358 and 359 are each legally correct instructions on these points. Numerous cases have approved instructing that a defendant’s out-of-court statements must be viewed with caution and warned that failure to give such an instruction suasponte in a case in which justified by the evidence is error. (People v. Deloney (1953) 41 Cal.2d 832, 840, and cases cited therein.) CALCRIM No. 359 is also a correct statement of the law. (People v. Reyes (2007) 151 Cal.App.4th 1491, 1498.)
The giving of both CALCRIM Nos. 358 and 359 is not ambiguous or contradictory, and, in fact, is mandated by the use notes to CALCRIM No. 359, which states that that instruction must always be given with CALCRIM No. 358. There is no contradiction in instructing that the defendant’s out-of-court statements can alone support a finding that the defendant was the perpetrator of the crime and that the statement must nonetheless be considered with caution. There is no reasonable likelihood the jury would conclude that it could convict defendant solely on his out-of-court statements in the face of the unambiguous direction in CALCRIM No. 359 that “[t]he defendant may not be convicted of any crime based on his out-of-court statements alone.” Contrary to defendant’s assertion, neither of these instructions states that the defendant’s “words alone were sufficient to identify and convict him. . . .” (Italics added.)
VIII. There Was No Cumulative Error
Defendant contends that his convictions should be reversed because of multiple, cumulative errors in a very close case. He argues that the jury deliberations were lengthy, consuming 22 hours over five days, and the jury asked numerous questions. This contention is without merit.
“Lengthy criminal trials are rarely perfect, and this court will not reverse a judgment absent a clear showing of a miscarriage of justice. [Citations.]” (People v. Hill, supra, 17 Cal.4th at p. 844.) “Nevertheless, a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.” (Ibid.) Because we have concluded that there were no prejudicial errors here, it follows that there were no errors to cumulate.
IX. Defendant’s Murder Conviction Should Not be Reduced
The jury was instructed that it could convict defendant of first degree murder on either of two theories: defendant personally committed the murder willfully, deliberately and with premeditation, or the murder occurred while defendant was committing a robbery or aiding and abetting the commission of a robbery and the other person committing the robbery committed the murder. (CALCRIM No. 521.) The jury was also instructed that it could convict defendant of the robberies if he personally committed them or aided and abetted in their commission.
During deliberations, the jury submitted a question asking if it was unable to unanimously find an allegation either true or false, whether it should leave the line blank. It failed to find that defendant personally and intentionally discharged a firearm but found that a principal personally and intentionally discharged a firearm proximately causing Damron’s death.
Defendant contends that his conviction of murder should be reduced to assault and battery and his robbery convictions reversed. He argues that the jury found that he was not the shooter and could therefore only be guilty of murder and the robberies on an aiding and abetting theory, but there is insufficient evidence that he intended to assist in the robberies or murder. This contention is without merit.
It can be argued that the jury’s failure to find that defendant personally discharged a firearm in the commission of the offenses is inconsistent with him having personally perpetrated the crimes. But inherently inconsistent verdicts are allowed to stand. (People v. Lewis (2001) 25 Cal.4th 610, 656; People v. Palmer (2001) 24 Cal.4th 856, 860-861.) We therefore review the evidence to determine whether there was sufficient evidence to convict defendant on the basis of any and all theories of guilt on which the jury was instructed. (People v. Garrison (1989) 47 Cal.3d 746, 781-782; People v. Lopez (1982) 131 Cal.App.3d 565, 569-571.)
There was ample evidence that defendant shot Damron and directly participated in the commission of the robberies. Haaccann, present at the scene of the shooting, testified that he saw defendant shoot someone in the back of the head with the gun Haaccann had been ordered to bring to Acevedo’s apartment. Acevedo and Narvarez each testified that after the shooting defendant returned to Acevedo’s apartment and said that he had just shot someone in the head. On later trips to the area of the shooting, defendant pointed out to Narvarez that that was the area where he “shot the fool.” Andrade testified that while he did not actually see the face of the shooter, he saw a person dressed as defendant was dressed that evening, with a gun. Defendant admitted to Detective Parry that he was present at the scene of the shooting before the fatal shot was fired and participated in the beating. Wright testified that the person with the gun went over to Damron, and Damron said, “I don’t have nothing,” “this is all,” and “here.” This evidence is sufficient to support the contention that defendant intentionally shot Damron and participated in the robberies.
There was also substantial evidence that defendant intended to commit the robberies and aided and abetted in the murder and robberies. As discussed more fully in part I. D, ante, the robberies were still in progress when defendant arrived, as the perpetrators had not yet reached a place of temporary safety. Before he got to the location of the victims, he met Scrappy down the street and was told by him that the victims were trying to sell drugs in White Fence gang territory. The gang expert testified that gang members would likely demand that someone selling drugs in the gang’s territory pay a tax, and the person would be beaten or killed. Defendant nonetheless, as a gang member knowing what was going on, entered the battle, and by his own admission began beating on one of the victims. Inferentially, defendant was fully aware that the attack was to obtain a tax from the victims, and injure or kill them if they did not pay, and he intended to participate. This inference is also consistent with Acevedo’s testimony that defendant told him that he saw two Black men selling drugs, that he and Haaccann approached them and asked if they were selling, because if they were, they were going to tell him whose territory it was and that they could not sell there. As a gang member, defendant would clearly understand that he had to extract tax from the men or kill them.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J. DOI TODD, J.
While in prison, Acevedo wrote a letter to a deputy district attorney who had worked on his case, offering information about the White Fence gang. In November 2002, Detectives Flores and Maxwell interviewed Acevedo who provided information regarding the Damron shooting in the hopes of an early release from prison. He said that “Little Silent” was present swinging a gun. He was given no promise of an early release.
In December 2003, Acevedo learned that he would not get an early release. He then wrote to District Attorney Steve Cooley, and threatened not to testify unless he was released from prison early. Despite his threat, Acevedo testified at defendant’s preliminary hearing.
Haaccann spoke with Detective Parry again a few days later. Detective Parry told him that he would probably not be charged in connection with the shooting, but could make no promises. Although still concerned that he might be charged, Haaccann then told the truth. He identified defendant’s photograph in a photographic six-pack as being the shooter Other than receiving use immunity for his testimony, Haaccann received no benefit in the matter for which he was in custody. Ultimately he entered a plea to assault with a gun.
CALCRIM No. 549, as given, instructed that, “In order for the People to prove that the defendant is guilty of murder under a theory of felony murder and that the special circumstance of murder committed while engaged in the commission of Robbery is true, the People must prove that the Robbery and the act causing the death were part of one continuous transaction. The continuous transaction may occur over a period of time and in more than one location.” (CALCRIM No. 549.)
CALCRIM No. 703, as given, instructed that, “If you decide that a defendant is guilty of first degree murder but was not the actual killer, then, when you consider the Robbery and Gang special circumstances, you must also decide whether the defendant acted either with intent to kill or with reckless indifference to human life. [¶] In order to prove these special circumstances for a defendant who is not the actual killer but who is guilty of first degree murder as an aider and abettor, the People must prove either that the defendant intended to kill, or the People must prove all of the following: [¶] 1. The defendant was a major participant in the crime; AND [¶] 2. When the defendant participated in the crime, he acted with reckless indifference to human life. [¶] A person acts with reckless indifference to human life when he or she knowingly engages in criminal activity that he or she knows involves a grave risk of death.” (CALCRIM No. 703.)