Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEALS from judgments of the Superior Court of Los Angeles County.Ct. No. PA047338 Shari K. Silver, Judge.
Leslie Conrad for Defendant and Appellant Dean Cairo Rodriguez.
David E. Kenner for Defendant and Appellant Rudy Limon.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Theresa A. Patterson and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST, J.
In a murder-for-hire scheme, appellant Rudy Limon (Limon) paid appellant Dean Cairo Rodriguez (Rodriguez) $10,000 in cash to kill Sergio Reyes (Sergio). Limon was angry with Sergio, who was formerly his best friend, because soon after Limon and his former wife Celina Reyes (Celina) dissolved their marriage, Sergio secretly began seeing Celina and then married her. In April 2003, Rodriguez shot Sergio, but Sergio survived. In December 2003, Rodriguez murdered Sergio by approaching him as he sat in his Silverado truck (Silverado) and shooting him in the shoulder and through the head.
THE JUDGMENTS
In a jury trial, appellants were convicted of first degree murder and attempted murder with findings of deliberation and premeditation. (Pen. Code, §§ 187, subd. (a), 664, 187, subd. (a).) The jury found true special circumstances of intentional murder for financial gain and by means of lying in wait, or aiding and abetting such conduct. (§ 190.2, subds. (a)(1) & (a)(15).) As to Rodriguez, the jury made findings of the personal discharge of a firearm proximately causing injury or death. (§ 12022.53, subd. (d).)
All further statutory references are to the Penal Code unless otherwise indicated.
Limon was sentenced to terms of life without the possibility of parole (LWOPP) and a consecutive term of life.
Rodriguez was sentenced to an LWOPP term, plus a term of 25 years to life for the discharge of a firearm. Consecutive to that term, the trial court imposed a life term, plus a term of 25 years to life for the discharge of a firearm.
The appeals are from the judgments.
THE CONTENTIONS
Limon contends that: (1) the trial court erred when it denied his motion to sever; (2) the guns and silencer evidence was inadmissible; (3) the trial court improperly excluded third-party culpability evidence; (4) “unverified statements” made by the accomplices were improperly admitted into evidence; (5) the trial court abused its discretion by admitting Anna Reyes’s (Anna) testimony that in September 2003 Limon laughed when Anna confronted him about shooting her brother; (6) the trial court erred by failing to declare a mistrial when the detective blurted out prejudicial information in the jury’s presence; and, (7) the prosecutor committed misconduct.
Rodriguez contends that: (1) the guns, silencer, and ammunition evidence was inadmissible; (2) the prosecutor committed misconduct; (3) the trial court committed misconduct; and, (4) there is cumulative error.
Appellants request to join in any contention raised by the coappellant that will benefit him. This court has granted the requests.
The judgments are affirmed.
FACTS
At trial, Rodriguez proceeded in propria persona (in pro. per.); Limon was represented by trial counsel.
I. The Prosecution’s Case-in-chief
A. The Conspiracy
The trial evidence established that in February 2002 Limon and Celina dissolved their marriage. Soon thereafter, Sergio secretly began dating Celina, and in September 2002, he married her. That ended Limon’s friendship with Sergio. Celina had Sergio’s baby in March 2003. Limon’s brother “Gibby” was in prison and was a friend of Rodriguez. In about February 2003, Limon met Rodriguez at a San Fernando Valley Jack-in-the-Box restaurant. They were not previously acquainted. Limon was driving his yellow Hummer, and Rodriguez drove up in a silver Nissan 350Z with his girlfriend, Lorena Luna (Luna). Luna saw Limon give Rodriguez an envelope containing a photograph of a man Rodriguez later identified as “Sergio” and $10,000 in cash.
B. The April 2003 and December 2003 Shootings
In April 2003, Sergio was parked in Canoga Park waiting to attend an Alcoholics Anonymous meeting. Rodriguez and a companion, Little Rudy Gomez, shot at Sergio through the Silverado’s window. They wounded him twice, but he survived. After Limon heard that Sergio was recovering, Limon directed Rodriguez to complete the job. Limon was concerned that suspicion for the shooting might focus on his brother Gibby. So Limon paid Rodriguez a $2,000 or $4,000 cash bonus to shoot Sergio before Gibby was paroled in February 2004.
Rodriguez’s companion during the shooting and murder was referred to in the record only by his moniker and last name. We will refer to him as Little Rudy Gomez.
Thereafter, Rodriguez had some difficulty finding Sergio. But in October 2003, Sergio and Celina had separated, and Rodriguez obtained information that Sergio was living with his mother at her Sepulveda townhouse. On December 13, 2003, Rodriguez, again accompanied by Little Rudy Gomez, put the townhouse under surveillance. At approximately 8:00 a.m. that morning, Sergio drove his Silverado to the drive-through line of the McDonald’s restaurant two doors south of his mother’s townhouse. Rodriguez approached the Silverado alone on foot. He broke the Silverado’s window with a center punch and fatally shot Sergio.
C. The Trial Testimony
At trial, Rodriguez was tied to the Canoga Park shooting by forensic evidence. A ballistics expert testified that a bullet fragment and two expended shell casings recovered at the shooting scene had been discharged through a Ruger barrel. That Ruger barrel was found with an arsenal of firearms in a storage locker rented by Rodriguez. There were three eyewitnesses to the McDonald’s shooting. One eyewitness tentatively identified Rodriguez as Sergio’s assailant. The eyewitnesses’ physical descriptions of the assailant were consistent with Rodriguez’s physical description. Grainy photographs from the McDonald’s surveillance cameras showed the murder and its antecedents. Sergio’s assailant roughly matched Rodriguez’s physical appearance and the clothing he was wearing that morning. The photographs demonstrated that the assailant may have arrived at the murder scene in a Nissan Pathfinder.
Rodriguez’s almost constant companion, his girlfriend Luna, testified that in February 2003, she was present and just out of view when Limon met and gave Rodriguez the $10,000 in cash. She testified to subsequently overhearing parts of appellants’ conversations planning or concerning Sergio’s prospective death. She testified that when the shooting and murder had occurred, Rodriguez and Little Rudy Gomez were out together. On the occasion of the April 2003 Canoga Park shooting, she saw Little Rudy Gomez with a revolver. She provided a description of the clothing that Rodriguez was wearing when he left her prior to the murder. In the McDonald’s surveillance photographs, she identified the Nissan Pathfinder sports utility vehicle (SUV) as that Rodriguez had given her to drive. She also identified Rodriguez in one photograph.
Nicholas Davies (Davies), a cohort who participated in motorcycle thefts with Rodriguez in 2003, testified to statements that Rodriguez had made to him concerning the murder-for-hire scheme. Also, on several occasions, Davies had unwittingly found himself accompanying Rodriguez while Rodriguez was attempting to locate Sergio. Rodriguez had let slip that a man named “Rudy” was his employer in the murder-for-hire scheme and that the primary motive for the killing was a dispute over a woman.
Luna and Davies testified to Rodriguez’s surveillance of Sergio’s Sepulveda townhouse and to various preparation activities that Rodriguez had engaged in prior to the murder. Rodriguez had confessed to Luna and Davies that he had committed the Canoga Park shooting and the murder. He described in detail how he had committed the shootings. His descriptions were consistent with the forensic evidence obtained at the crime scenes.
Celina testified that when Limon discovered she had been secretly seeing Sergio, Limon had made an angry telephone call to her. Sergio’s sister, Anna, a long-time friend of Limon’s, testified to certain September 2003 statements Limon had made to her. During the conversation, Limon had acknowledged that he was unhappy with Sergio as Limon had treated Sergio as a brother and now Sergio was “talking sh—about him” and talking about Limon’s business. Also, Sergio had taken up with Celina. And, Limon had heard that Sergio had hit Celina while she was pregnant. After listening to Limon’s complaints, Anna confronted Limon about whether he had shot Sergio. She testified that in response Limon had laughed and said, “Why would you think that?”
II. The Defense
A. Rodriguez’s Defense
In defense, Rodriguez testified and denied a murder-for-hire scheme and the shooting and murder. He claimed alibi. He said that during the Canoga Park shooting he was working at a Nissan dealership as a mechanic and probably had been working. He claimed that at about 8:00 or 8:15 a.m. on the morning of December 13, 2003, he was in Sunland having breakfast with Shawnda Barton (Barton). He had bicycled there after meeting a former girlfriend Diane Contreras. He suggested that Davies and another friend of his, Victor Pena (Pena), had planted the firearms in his rented storage locker and that the Nissan Pathfinder observed in the McDonald’s surveillance photographs was not the SUV that belonged to Luna. He asserted that Davies or the detective had provided Luna with the facts underlying the shootings so that she could falsely testify he had committed the shooting and murder.
Rodriguez disputed Luna’s claim that he was driving a 350Z in February 2003. He claimed that he did not steal that 350Z until late June 2003.
Barton, Eddie Gomez, and Shawn Brown corroborated Rodriguez’s alibi in part. Through cross-examination and his brother Frank Salazar’s (Salazar) testimony, Rodriguez attempted to impeach elements of Luna’s and Davies’s trial testimony.
In turn, to impeach Salazar, the prosecution produced tape recordings from pretrial jail visits Salazar had with Rodriguez. The tape recordings demonstrated that while in custody awaiting trial, Rodriguez had directed Salazar to attempt to dissuade Luna from testifying. Also, when Luna told Salazar that she was going to appear as a witness, Rodriguez had instructed Salazar in code to arrange to have her killed.
Rodriguez had an identifications expert testify generally to the accuracy and the reliability of eyewitness identifications.
B. Limon’s Defense
Limon declined to testify.
He called his present wife, Mihaela Fornade-Limon, and an employee in his construction business to testify to incidents tending to show that he lacked a motive for murder.
Linda Larsen (Larsen), Limon’s defense investigator, testified that she had spoken to Rodriguez at the jail. She examined a May 2003 photograph that Luna had produced for the trial depicting the silver 2003 Nissan 350Z that Rodriguez had been driving. The 350Z bore paper plates indicating that it was originally purchased new at Universal Nissan. Rodriguez told Larsen that after he stole the 350Z, he had observed papers in its glove box indicating that the owner’s first name was “Efren.” To corroborate the date of the theft, Larsen obtained Universal Nissan’s computer data for all conforming sales in 2003 and found one purchaser who had the first name Efren. Through a finance company and Department of Motor Vehicles data, Larsen had located the stolen 350Z’s owner, Efren Martinez (Martinez), and the theft report.
Martinez testified that his silver 2003 Nissan 350Z, purchased in February 2003, was stolen between July 11 and July 14, 2003, from the street in front of his girlfriend’s apartment.
DISCUSSION
I. Limon’s Motion to Sever
Prior to trial, Limon moved for a severance on Aranda-Bruton grounds. (People v. Aranda (1965) 63 Cal.2d 518 (Aranda); Bruton v. United States (1968) 391 U.S. 123 (Bruton).) On appeal, he claims that the trial court’s ruling on the motion constituted an abuse of discretion and denied him due process.
We note that Limon’s opening brief is devoid of the record references necessary to support his contention. A claim raised on appeal may be passed for consideration where the brief fails to provide record references to the facts underlying the claimed error. (Cal. Rules of Court, rule 8.204(a)(1)(C); People v. Mendoza (1986) 183 Cal.App.3d 390, 398 (Mendoza).)
A. Background
Appellants made pretrial motions to sever, which the trial court denied. The trial court ruled that certain portions of Luna’s testimony regarding the statements made by Rodriguez and Limon were admissible because the Aranda-Bruton rule does not apply to a codefendant’s extrajudicial statement made in furtherance of a conspiracy. (See Evid. Code, § 1223; People v. Sanders (1995) 11 Cal.4th 475, 516.) Other statements made by Rodriguez to Luna or to Davies were admitted as they were not facially incriminating. The prosecutor voluntarily withdrew another set of Rodriguez’s statements after the prosecutor or the trial court concluded that the statements implicated Limon.
As it turned out, during trial, Rodriguez decided to testify.
After Rodriguez’s testimony, there was no longer a confrontation issue. In rebuttal, Davies testified to the remainder of the extrajudicial statements that Rodriguez had made to him concerning the shooting and the murder.
B. The Relevant Legal Principles
In Bruton, the United States Supreme Court held that a defendant is deprived of his Sixth Amendment right of confrontation when statements of a nontestifying codefendant incriminating the defendant are introduced at their joint trial, even if the jury is instructed to consider the statements only as against the codefendant. (Bruton, supra, 391 U.S. at pp. 135–136.) However, the high court has since held that “the Confrontation Clause is not violated by the admission of a nontestifying codefendant’s [statements] with a proper limiting instruction when . . . the [statements are] redacted to eliminate not only the defendant’s name, but any reference to his or her existence.” (Richardson v. Marsh (1987) 481 U.S. 200, 211.)
The court in People v. Fletcher (1996) 13 Cal.4th 451 (Fletcher) explained the following. “[W]hen two defendants are jointly tried and the jury is instructed to consider the testimony of a witness against only one of the defendants, the witness is ordinarily not considered to be a witness ‘against’ the other defendant within the meaning of the confrontation clause. (Richardson v. Marsh, supra, 481 U.S. [at p.] 206.) This is because courts generally assume that jurors follow their instructions. (Ibid.) The court explained that its decision in [Bruton], supra, 391 U.S. 123, represented ‘a narrow exception to this principle’ that applied ‘when the facially incriminating confession of a nontestifying codefendant is introduced at [a] joint trial.’ (Richardson v. Marsh, supra, 481 U.S. [at p.] 207, italics added.)
“The court concluded that [the confession in Richardson v. Marsh] fell ‘outside the narrow exception we have created’ because, unlike the confession at issue in Bruton v. United States, supra, 391 U.S. 123, it ‘was not incriminating on its face, and became so only when linked with evidence introduced later at trial (the defendant’s own testimony).’ (Richardson v. Marsh, supra, 481 U.S. [at p.] 208.)” (Fletcher, supra, 13 Cal.4th at p. 463.)
The Fletcher court indicated that in Richardson v. Marsh, the court had refused to extend the Bruton rule to confessions that were not facially incriminating. (Fletcher, supra, 13 Cal.4th at pp. 463–468.)
C. The Analysis
1. The Aranda-Bruton Issue
Limon argues that the trial court improperly denied his motion to sever pursuant to the Aranda-Bruton rule. However, we do not need to reach the issue. At trial, Rodriguez testified. After his testimony, there was no longer any issue of a denial of confrontation under the federal Constitution. (Nelson v. O’Neil (1971) 402 U.S. 622, 629–630.) Any error in the ruling on the motion to sever was cured by Rodriguez’s testimony. (People v. Hoyos (2007) 41 Cal.4th 872, 895, 896, fn. omitted.) Also, there was no “gross unfairness” at trial based on the failure to sever. (Id. at p. 896 & fn. 11.)
Limon argues that even though Rodriguez testified, he was denied due process. We assume that by this claim Limon is asserting protection under California law that is not coextensive with his federal constitutional protection. The claim is meritless. The Truth-in-Evidence provision of Proposition 8 (Cal. Const., art. I, § 28, subd. (d)) abrogated the decision in Aranda so that now California law is coextensive with protections afforded a defendant under the federal Confrontation Clause. (Fletcher, supra, 13 Cal.4th at p. 465.)
2. The Limiting Instruction
As framed, this court cannot discern Limon’s further complaint about the trial court’s limiting instruction.
Luna testified that after the Canoga Park shooting, Rodriguez had his brother Salazar drive her and Rodriguez past the crime scene. Rodriguez told her that Sergio “had been taken care of.” Soon thereafter, Rodriguez told her about the events of the Canoga Park shooting. Rodriguez said that Little Rudy Gomez had shot at Sergio six times. But Rodriguez could see that Sergio was still moving. So Rodriguez grabbed his gun and shot at Sergio twice more.
Trial counsel interrupted and asked the trial court to instruct the jury that it should consider the above admission only as to Rodriguez, and not as to Limon.
The trial court informed the jury that trial counsel was asking it to “remind the jurors that certain evidence is coming in as to one defendant and not to the other.” It said: “I didn’t think that I needed to tell you that if there is a description about something that . . . Rodriguez said, that I needed to admonish you that it’s only [admissible] as to . . . Rodriguez. I didn’t want to insult your intelligence. So he’s asked me to do this, and I’m doing it. So, obviously, sometimes evidence is coming out as to both defendants, sometimes it’s coming out as to only one. I think all of you can figure it out. If you can’t figure it out, please raise your hand. I hope I didn’t insult you. Is there anybody here that did not understand what I just said? Please raise your hand. [No juror raised a hand.] Thank you.”
Insofar as Limon is complaining about the efficacy of the limiting instruction, any error is forfeited. The trial court gave the limiting instruction, as requested. If Limon was dissatisfied with its content, it was encumbent upon him to ask for a more complete instruction. In any event, any error under the federal Confrontation Clause was cured when Rodriguez testified and was cross-examined. (Nelson v. O'Neil, supra, 402 U.S. at p. 629; People v. Hoyos, supra, 41 Cal.4th at p. 896.) No limiting instruction was requested on hearsay grounds. (People v. Smith (2007) 40 Cal.4th 483, 516 [pursuant to Evid. Code, § 355, there is no general duty to give a limiting instruction where evidence is admitted for a limited purpose]; see People v. Boyd (1990) 222 Cal.App.3d 541, 559–560.)
If Limon’s complaint is one of judicial misconduct, there is no pattern of discourteousness to support such a claim. (People v. Sturm (2006) 37 Cal.4th 1218, 1233 (Sturm).) Also, Limon never objected on this ground and thus has forfeited the claim. (Id. at p. 1237.)
Rodriguez has requested that this court consider the same Aranda-Bruton error as it applies to the denial of his motion to sever. The analysis of Rodriguez’s claim involves different facts and a different legal analysis than is involved in evaluating Limon’s contention. As it would require this court to search the record for the pertinent facts and to construct a legal argument for Rodriguez, this court passes consideration of the contention as it applies to Rodriguez. (People v. Stanley (1995) 10 Cal.4th 764, 793; Mendoza, supra, 183 Cal.App.3d at p. 398.)
II. The Use of Luna’s and Davies’s Statements Incriminating Limon
Limon contends that he should be granted a new trial “because unverified statements by. . . Rodriguez’s accomplices were used to convict . . . Limon.”
Limon argues that the trial court improperly admitted Luna’s and Davies’s testimony at trial despite the witnesses’ acknowledgements that they were involved in Rodriguez’s criminal activities. Limon refers to a proposition that “co-conspirators’ statements should not be allowed in as evidence against another conspirator unless they are independently verified” and argues that since Luna and Davies were “co-conspirators with Rodriguez . . . their statements must be verified by someone other than another co-conspirator.”
The contention lacks merit.
A. Background
After the prosecutor rested her case-in-chief, Limon made a motion for an acquittal pursuant to section 1118.1. Limon complained that the evidence was insufficient to support his conviction as at the very least, Luna was an accomplice and either Davies or Luna was committing perjury. He argued that Davies’s and Luna’s trial testimony was flimsy and incredible, and accomplice testimony must be corroborated. Limon urged that neither Anna’s nor Celina’s trial testimony provided corroboration.
The prosecutor responded that at best, the evidence was conflicting as to whether Luna was an accomplice. The prosecutor acknowledged that Davies had testified that he had the impression from an extrajudicial statement that Luna had made that Luna was manning a police scanner during the Canoga Park shooting. However, there was no evidence that Luna was an accomplice to the murder. The prosecutor urged that the trial evidence was sufficient to permit the jury to determine guilt.
The trial court denied the motion.
B. The Relevant Legal Principles
“‘The standard applied by a trial court in ruling upon a motion for judgment of acquittal pursuant to section 1118.1 is the same as the standard applied by an appellate court in reviewing the sufficiency of the evidence to support a conviction, that is, “whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged.”’ (People v. Crittenden (1994) 9 Cal.4th 83, 139, fn. 13.) . . . The question ‘is simply whether the prosecution has presented sufficient evidence to present the matter to the jury for its determination.’ [Citation.] . . . The question is one of law, subject to independent review. [Citation.]” (People v. Stevens (2007) 41 Cal.4th 182, 200.) Section 1111 provides, as follows: “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.”
“Section 1111 defines an accomplice ‘as one who is liable to prosecution for the identical offense charged against the defendant. . . .’ (See People v. Hayes [(1999)] 21 Cal.4th [1211,] 1270.) ‘When the evidence at trial would warrant the jury in concluding that a witness was an accomplice of the defendant in the crime or crimes for which the defendant is on trial, the trial court must instruct the jury to determine if the witness was an accomplice. If the evidence establishes as a matter of law that the witness was an accomplice, the court must so instruct the jury, but whether a witness is an accomplice is a question of fact for the jury in all cases unless “there is no dispute as to either the facts or the inferences to be drawn therefrom.” [Citation.]’ (Id. at pp. 1270–1271.)” (People v. Whisenhunt (2008) 44 Cal.4th 174, 214.)
“Evidence of corroboration is sufficient if it connects the defendant with the crime, even though it is slight and would be entitled to little consideration when standing by itself. [Citation.] The required corroboration must come from a source other than another accomplice. [Citation.]” (People v. Price (1991) 1 Cal.4th 324, 443–444.) “The evidence [of corroboration] ‘is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.’ [Citation.]” (People v. Lewis (2001) 26 Cal.4th 334, 370; see also People v. Avila (2006) 38 Cal.4th 491, 562–563.)
C. The Analysis
1. The Contention has been Forfeited
At the outset, there are forfeitures as Limon entered no objection to the use in evidence of any “unverified statements” that Luna and Davies testified to during trial. At trial, Limon did not claim that Davies was an accomplice, nor was that a trial issue. Nor has Limon set out record references in briefing to assist this court in locating the evidence he deems pertinent to his contention. (Mendoza, supra, 183 Cal.App.3d at p. 398.)
2. The Sufficiency of the Evidence
As to the merits, the court in People v. McGavock (1999) 69 Cal.App.4th 332, 335, explains: “Section 1111 dates back at least to section 375 of the Criminal Procedure Act of 1851, which enacted the first paragraph of what is now section 1111. (Stats. 1851, ch. 29, § 315, pp. 252-253.) The statute is designed to prevent lay jurors from arriving at a verdict of conviction as to a defendant, based solely upon evidence which is possibly tainted by an accomplice’s desire to secure leniency through implicating others. (See People v. Coffey (1911) 161 Cal. 433, 437–438; cf. People v. Guiuan (1998) 18 Cal.4th 558, 565.)”
Furthermore, while “accomplice testimony must be corroborated to support a conviction (§ 1111), the corroboration requirement relates to the sufficiency, not [the] admissibility, of evidence.” (People v. Riel (2000) 22 Cal.4th 1153, 1190.) Limon’s contention on appeal is a claim of evidentiary error, not a claim of insufficient evidence to support the judgment. Accordingly, it fails.
Moreover, we note that the trial court charged the jury with all the necessary instructions as to how it was to consider accomplice testimony and informed the jury that Luna was potentially an accomplice. Even if we were to construe Limon’s contention to be a challenge to the sufficiency of the evidence, he would not prevail. And, even if we were to assume that Luna and Davies were both accomplices, the evidence apart from their testimony is sufficient to support the judgments.
Davies’s testimony about Rodriguez’s claims about Limon’s motives for murder was corroborated by Celina’s and Anna’s testimony establishing that Limon had the same motives for killing Sergio. The ballistics evidence collected by the police at the crime scenes and during the autopsy and the Ruger gun barrel found in Rodriguez’s rented Sylmar storage locker connected Rodriguez to the shootings. Also, some of the ammunition in the rented storage locker was of the same type as that used during the shootings, although it was not of the same brand. Rodriguez acknowledged during his testimony that the storage locker belonged to him.
Davies’s and Luna’s claims about Rodriguez’s statements describing the shooting and murder generally conformed to the crime scene forensic evidence and to that obtained during the autopsy. Sergio’s mother described her Sepulveda townhouse and the location where Sergio had parked his Silverado in the alley behind the townhouse. Her testimony conformed to Luna’s and Davies’s claims about Rodriguez’s surveillance of the townhouse. Photographs taken by the McDonald’s videosurveillance cameras depicted the Nissan Pathfinder Luna drove, which had several unique characteristics, and one eyewitness tentatively identified Rodriguez as the assailant in Sergio’s December 13, 2003, murder.
The above evidence constitutes sufficient corroboration of any accomplice testimony.
3. “Verifying” the Conspiracy
Insofar as Limon is asserting that there was no independent proof of a conspiracy apart from purported hearsay declarations by the conspirators, this claim also lacks merit. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1134 [prima facie showing may consist of circumstantial evidence or any competent evidence tending to show the existence of a conspiracy]; People v. Hardy (1992) 2 Cal.4th 86, 139.) The independent proof required to establish a conspiracy may consist of uncorroborated accomplice testimony. (People v. Rodrigues, supra, at p. 1134.) However, “[t]he testimony of an accomplice is sufficient to establish the fact or existence of a conspiracy (the corpus delicti); his or her testimony needs corroboration only as to the defendant’s connection with it. [Citations.] And, it is settled that only slight corroborative evidence is necessary to connect a defendant with the alleged conspiracy. [Citations.]” (People v. Cooks (1983) 141 Cal.App.3d 224, 312; accord, People v. Price, supra, 1 Cal.4th at p. 444.)
During trial, there was no claim that Davies was an accomplice, and Davies corroborated Luna’s claims regarding Limon’s identity as Rodriguez’s employer in the murder-for-hire scheme. Furthermore, Rodriguez’s trial testimony corroborated Luna’s testimony that Limon was involved in a conspiracy with Rodriguez. Rodriguez testified that in February 2003, he met Limon alone near his place of business and that in November 2003, Limon gave him $2,000 in cash purportedly for motorcycle parts.
This evidence constitutes independent proof of the conspiracy and Limon’s identity as a conspirator. It serves as a proper foundation for the use of the extrajudicial statements made by Limon and Rodriguez in furtherance of the conspiracy.
Rodriguez seeks to join in the contention, and we considered it from his perspective. In the trial court, during his section 1118.1 motion, Rodriguez raised an issue as to the sufficiency of the evidence generally and with respect to accomplice testimony. The trial court denied his section 1118.1 motion. This court would engage in the same analysis with respect to the sufficiency of the evidence as it did for Limon. The evidence is sufficient to support the judgment.
III. The Guns, Silencers, and Ammunition Evidence
Rodriguez and Limon contend that Rodriguez’s possession before and at the time of his arrest of an arsenal of firearms and weaponry-related items, including ammunition, was irrelevant.
Rodriguez further asserts that the evidence, even if marginally probative, should have been excluded pursuant to Evidence Code section 352 as the firearm and related instrumentality evidence was likely to evoke an emotional response in the jury. Also, the use of the evidence invited the improper consideration of bad character evidence, which was irrelevant to the trial issues. Rodriguez asserts that such evidence was so inflammatory that its use denied him a fair trial and improperly lightened the prosecution’s burden of proof.
The contentions are meritless.
A. Background
On April 1, 2004, the police arrested Rodriguez and Luna. Subsequent to the arrest, the police searched a rented storage locker belonging to Rodriguez.
In the rented storage locker, inside a red nylon lunchbox, Los Angeles Police Detective David Holmes found a fully loaded nine-millimeter Glock 17 pistol with a threaded barrel. The ballistics expert and the detective testified that if a silencer was screwed into its threaded barrel, the Glock 17 firearm would be classified as an assault weapon. There was a black box in the storage locker that contained two barrels for handguns: one nine-millimeter stainless steel Ruger barrel (item No. 40) and a black nine-millimeter Lugar barrel (item No. 38). In the black box were various types of ammunition, 104 rounds in all: approximately 40 nine-millimeter rounds, 96 .40-caliber rounds, 7.62 rounds for an assault rifle, shotgun shells, and .357-caliber ammunition.
Detective Holmes examined the storage facility’s records. Each renter was assigned an individual access code that had to be used at the front gate in order to gain access to the facility. The facility’s computer records disclosed that on December 13, 2003, Rodriguez’s access code was used at 9:03 a.m. to enter the facility. Five minutes later, at 9:08 a.m., the code was used to exit the facility.
After the Canoga Park shooting, at the crime scene, the police officers recovered one spent bullet on the Silverado’s passenger floorboard. They found two nine-millimeter PMP- and PMC-brand expended casings in the parking lot where the shooting had occurred. A detective removed four copper jackets and two lead core bullet fragments from the Silverado’s driver’s door (item No. 6).
Because only two spent casings were recovered, and there were at least six impact points on the Silverado’s door, the detective later began to suspect two guns had been used to commit the Canoga Park shooting. One of these firearms was potentially a revolver.
A ballistics expert testified that bullet fragments recovered after the Canoga Park shooting, as well as two nine-millimeter spent casings found there on the ground, had been discharged from the Ruger barrel.
At the murder scene, Detective Holmes had discovered a .40-caliber Smith & Wesson, RP-brand, expended casing on the passenger floor of Sergio’s Silverado. Two bullet fragments were found behind the driver’s seat, one a jacket and the other a lead core.
The ammunition found in Rodriguez’s storage locker was of the same type, but not of the same brand, as the expended casings found at the crime scenes.
The ballistics expert said that the evidence from the shootings was inconsistent with the use of the Glock 17 and the other two recovered barrels, apart from the Ruger barrel. She said that one of the bullets recovered from Sergio’s shoulder during the autopsy, item No. 16, could have been discharged from a .38, a .357 magnum, or a nine-millimeter firearm, such as, but not limited to, a Smith & Wesson, Coonan Arms, Ruger, Taurus, Llama, Sportsarms, or Century Arms firearm.
The trial testimony failed to reveal which of the two expended bullets, item Nos. 15 and 16, was the bullet that caused Sergio’s fatal shoulder wound. The prosecutor argued during her final comments to the jury that item No. 15 was the murder bullet.
During her trial testimony, Luna identified the Glock 17 handgun and the other weaponry and related items in Rodriguez’s storage locker. She said that the weapons and other items belonged to Rodriguez and that she had previously seen Rodriguez with a silencer attached to the end of the barrel of the Glock 17 handgun. She explained that the Lugar barrel was the stock barrel for the Glock 17 handgun.
Before at least one of the shootings, Luna had seen Rodriguez at his friend Pena’s residence in possession of two silencers. She said that when Rodriguez discovered the initial shooting had failed, he had talked about entering the hospital where Sergio was recovering to shoot him again. Using Luna’s credit card on a Florida website, Rodriguez had purchased two threaded barrels that accommodated flashers and silencers.
The trial court excluded Luna’s testimony that part of the plan was to enter the hospital with a gun with an attached silencer, as well as Luna’s conclusion that this idea was ridiculous because the handgun would be “[so] big.”
Luna testified that she had seen Little Rudy Gomez in possession of a .357 revolver immediately after the April 1, 2003, shooting. She asserted that she had seen Little Rudy Gomez with Rodriguez on December 13, 2003, when Rodriguez returned home at about 9:30 a.m. following the murder. Luna said that on April 1, 2003, Rodriguez owned a nine-millimeter Smith & Wesson, the nine-millimeter Glock 17, a .40-caliber handgun, a shotgun, and a rifle. On the night before the December 13, 2003, murder, Rodriguez had told her that he was taking the “Dirty Girl,” his nine-millimeter Smith & Wesson handgun, to do “homework,” which she knew meant that he intended to find and shoot Sergio.
After the murder and after Rodriguez was arrested on February 4, 2004, on an unrelated matter Rodriguez telephoned Luna. He directed her to give to a man named “Chico” all the firearms and related weaponry items that he had at his residence: the nine-millimeter Smith & Wesson, i.e., the “Dirty Girl,” his .40-caliber handgun, his rifle, a bulletproof vest, a silencer, a police scanner, and walkie-talkies. She complied with his request.
Luna had seen Rodriguez over 40 times with silencers, and he had a book on how to make silencers.
Davies testified that in 2003, he was aware that Rodriguez had purchased and had in his possession a threaded gun barrel that “matched to a Ruger P series nine-millimeter [handgun].” Davies had seen Rodriguez in possession of a .40-caliber Smith & Wesson Sigma, a nine-millimeter Glock 17 handgun, an AK-type SKS rifle, a Mossberg or Remington 12-millimeter shotgun, a chrome “.357.” and a “.380.” He had accompanied Rodriguez when he possessed silencers. He saw Rodriguez test-firing a freeze plug silencer with a Maglite flashlight that Rodriguez had attached to his Ruger P series handgun. Davies had observed Rodriguez discharging his SKS AK47-type rifle with a silencer attached and had seen Rodriguez’s book on silencers.
Davies claimed that Rodriguez had told him that he had used a .380 or a nine-millimeter weapon to commit the Canoga Park shooting and that he had used a .40-caliber handgun to commit Sergio’s murder. Davies testified that Rodriguez always had guns around, some with threaded barrels.
After the murder, Davies terminated his relationship with Rodriguez. As there was a reward posted concerning the murder, Davies was afraid that Rodriguez would “clean house” and kill everyone who could tie him to the murder.
B. The Relevant Legal Authority
“When the prosecution relies on evidence regarding a specific type of weapon, it is error to admit evidence that other weapons were found in the defendant’s possession, for such evidence tends to show not that he committed the crime, but only that he is the sort of person who carries deadly weapons. (People v. Cox (2003) 30 Cal.4th 916, 956; People v. Riser (1956) 47 Cal.2d 566, 577.)” (People v. Barnwell (2007) 41 Cal.4th 1038, 1056.)
However, the above rule is not unqualified. “Instances of a defendant’s conduct are inadmissible to prove a defendant’s conduct on a specific occasion except where they are relevant to some fact in issue other than the defendant’s disposition and their probative value outweighs any prejudicial value. (Evid. Code, §§ 352, 1101.)” (People v. Gunder (2007) 151 Cal.App.4th 412, 416.) The possession of a firearm prior to the commission of the offense, however, may be probative of the defendant’s actual possession of a firearm during the offense or to the issue of planning. (Id. at p. 417; People v. Cox, supra, 30 Cal.4th at p. 956.) For example, where no murder weapon is recovered by the authorities, and the weapon in the defendant’s possession is a potential murder weapon, the weapon is admissible as circumstantial evidence the defendant committed the charged offense. (Ibid.; People v. Carpenter (1992) 21 Cal.4th 1016, 1052.) Weapons that are not the actual murder weapon also may be admitted into evidence when they are otherwise relevant to the crime’s commission. (People v. Cox, supra, at p. 956, citing People v. Neely (1993) 6 Cal.4th 877, 896; People v. Lane (1961) 56 Cal.2d 773, 784 [weapons not used to commit the murder may have been used to further the criminal plan, e.g., in People v. Lane, to commit the related robberies].)
Where the possession of the firearms has probative value, the extent to which the evidence demonstrates criminal propensity is simply a factor to consider in assessing the prejudice from its admission; it is not a basis for exclusion. (People v. Gunder, supra, 151 Cal.App.4th at p. 417.) The question is whether the possession of the weapons or weaponry has relevance to the issues in the case. “On the prejudice side of the scale, we are concerned only with the possibility of an emotional response to the proposed evidence that would evoke the jury’s bias against defendant as an individual unrelated to his guilt or innocence. (People v. Wright (1985) 39 Cal.3d 576, 585.)” (People v. Gunder, supra, 151 Cal.App.4th at p. 417.)
This court reviews a trial court’s ruling as to the admissibility of evidence for an abuse of discretion. (People v. Kipp (2001) 26 Cal.4th 1100, 1121, 1123.)
C. The Analysis
1. The Contention is Forfeited
Rodriguez filed two motions, one to exclude guns and ammunition or related items, and the other to exclude all testimony and evidence of silencers. Limon’s trial counsel did not expressly join in his motions, but commented on the implications of the applicable legal decisions during the motion to exclude the silencer evidence. The trial court’s ruling on the motion concerning the silencers was expressly tentative. The parties did not raise the issue again at trial, and consequently, forfeited any issue concerning the admissibility of the silencers for an appeal. (People v. Holloway (2004) 33 Cal.4th 96, 133 [tentative pretrial evidentiary ruling, made without fully knowing what the trial evidence would show, will not preserve the issue for appeal if the appellant could have, but did not, renew the objection or offer of proof and press for a final ruling in the changed context of the trial evidence itself]; People v. Morris (1991) 53 Cal.3d 152, 189–190 [explaining the same rule].)
With respect to the motion to exclude the evidence of guns and ammunition, the trial court heard that motion along with a number of other motions that Rodriguez had filed on the eve of trial. There was no discussion of the issue. The trial court opened the hearing on the motion by commenting that the guns and ammunition evidence was not character evidence. Then, Limon’s trial counsel interrupted the trial court to request that he be excused momentarily while Rodriguez argued the motion. Instead, the trial court ordered a recess. When it resumed proceedings, it attended to other, unrelated matters apart from Rodriguez’s numerous eve-of-trial motions.
The trial court then returned to Rodriguez’s eve-of-trial motions. It made no further comment on nor did it make a ruling on Rodriguez’s motion to exclude the guns and ammunition. Limon’s counsel never expressly joined in this latter motion, and neither party objected to the use of the evidence during trial. As the failure to rule on the issue was apparently inadvertent, it was encumbent upon Rodriguez to make an appropriate effort to obtain a further hearing or a ruling on the motion, which he did not do. As Rodriguez did not mention the issue again, the issue was not preserved for an appeal. (See People v. Braxton (2004) 34 Cal.4th 798, 813–814 [if a point is not pressed and is forgotten, a party may be deemed to have waived or abandoned it, just as if he had failed to make the objection in the first place]; People v. Morris, supra, 53 Cal.3d at pp. 189–190.)
2. The Merits
Apart from forfeiture, only the barrel of one firearm used during the Canoga Park shooting was recovered, and it was impossible to tell from the ballistics evidence whether two or more firearms were used during that shooting. The murder weapon was never recovered, and the fatal bullets recovered at the murder scene were in no condition to be tested to determine what kind of a firearm or firearms had been used during the murder. Rodriguez may well have used more than one firearm during these shootings, and Little Rudy Gomez was no doubt armed during the shooting and the murder.
Davies testified that prior to the murder, he had seen defendant test-firing a Ruger P series nine-millimeter handgun with a threaded barrel and a silencer. Luna’s testimony that the Lugar barrel was the stock barrel for the Glock 17 handgun and the presence of the additional unthreaded Ruger barrel suggests that Rodriguez was in the habit of replacing the barrels on his firearms with threaded barrels to accommodate silencers. Davies and Luna had seen Rodriguez in possession of other firearms that were possibly those used during the shootings: several nine-millimeter firearms, a “.357,” a “.380,” and a .40-caliber handgun.
Davies reported that prior to the murder, Rodriguez had test-fired his assault rifle with a silencer. Consequently, that instrumentality was relevant on the issue of preparation for the murder. Rodriguez may well have believed that he might have needed to use a rifle to shoot Sergio as Sergio had been hard to find and apparently when out in the open, was always with friends, who were armed.
Given the trial evidence, we conclude that all the firearms and the weaponry-related items, with the exception of perhaps the shotgun and the shotgun shells and the testimony about the Glock 17 being an assault weapon, were relevant as potential instrumentalities of the shootings. The firearms, silencers, and ammunition were also relevant to issues of premeditation, preparation, planning, and lying-in-wait.
Luna’s testimony about the weapons and weaponry she gave to Chico was relevant to consciousness of guilt.
The trial court had ample discretion, despite an Evidence Code section 352 objection, to rule that the highly-probative firearms-related evidence was admissible. (See People v. Steele (2002) 27 Cal.4th 1230, 1246.)
The failure to exclude the three items of inadmissible evidence does not require a reversal. Given the strength of the proof of guilt and considering most of the firearms and weaponry was properly admitted, this additional evidence would not have evoked an additional emotional reaction from the jury. No prejudice flowed from the use of the inadmissible evidence. (People v. Watson (1956) 46 Cal.2d 818, 836 .)
The evidentiary error here did not deprive appellants of a fair trial, particularly considering that the improperly-admitted evidence was inconsequential in light of the overwhelming evidence of guilt. (People v. Steele, supra, 27 Cal.4th at p. 1246.) The prosecution properly fulfilled its obligation to prove each fact necessary to a verdict of guilt beyond a reasonable doubt. (See Patterson v. New York (1977) 432 U.S. 197, 206–211 [due process is not violated by New York’s statutory provision that a defendant has the burden of proving by a preponderance of the evidence the affirmative defense of extreme emotional disturbance].)
IV. The Third Party Culpability Evidence
Citing Holmes v. South Carolina (2006) 547 U.S. 319 (Holmes), Limon contends that the trial court improperly excluded third-party culpability evidence that was relevant to his defense. He also complains that he was hindered in cross-examining Davies about Jason Hogan’s profession in order to connect Hogan and Pena. to the drug deals they were engaged in and to establish Hogan’s and Pena’s relationship to Jesse Ruiz (Ruiz) and Greg Macias.
We note that in briefing Limon again has failed to provide record references supporting his claims. Nor has he provided the location in the clerk’s transcript of any written motion seeking the evidence’s admission.
We disagree.
A. Background
In defense, Limon moved to admit certain third-party culpability evidence. He urged that Luna, Detective Holmes, Celina, Anna, and “other witnesses” would testify that Sergio was a drug dealer with enemies, and that other men, apart from Limon, had a motive to kill Sergio. During trial, Limon claimed that such evidence was relevant and thus admissible and was not unduly prejudicial. At trial, Limon’s trial counsel set out the defense theory that in 2003, Sergio had recently been released after serving an 11-year prison term for murder. Trial counsel claimed that previously, Sergio had been a drug dealer with an established territory. Initially, upon his release, Sergio was law abiding. But then Sergio attempted to reestablish his drug clientele and territory, which would have impinged on Ruiz’s drug business, as Ruiz now controlled that territory.
The trial court asked counsel for specific instances of conduct by the persons involved that would support his theory. Limon’s trial counsel engaged in a seemingly irrelevant, convoluted, and protracted explanation about Celina having lied at trial about Ruiz knowing Sergio. Trial counsel asserted that he could impeach Celina’s claim. The trial court told trial counsel that general evidence there is competition among drug dealers over territory is too speculative to be admissible as third-party culpability evidence. It ruled the proffered evidence was inadmissible.
B. The Relevant Legal Principles
In Holmes, supra, 547 U.S. at pages 324 to 325, the court said: “‘[S]tate and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials.’ United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998); see also Crane v. Kentucky, 476 U.S. 683, 689–690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986); (citations omitted). This latitude, however, has limits. ‘Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants “a meaningful opportunity to present a complete defense.”’ Crane, supra, at p. 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); (citations omitted). This right is abridged by evidence rules that ‘infring[e] upon a weighty interest of the accused’ and are ‘“arbitrary” or “disproportionate to the purposes they are designed to serve.”’ Scheffer, supra, at p. 308, 118 S.Ct.1261, 140 L.Ed.2d 413 (quoting Rock v. Arkansas, 483 U.S. 44, 58, 56, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987)).”
The rule in California with respect to the admissibility of third-party culpability evidence was recently summarized in People v. Page (2008) 44 Cal.4th 1, as follows: “Third-party culpability evidence is admissible if it is ‘capable of raising a reasonable doubt of defendant’s guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third party’s possible culpability . . . . [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt; there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.’ ([People v.] Hall [(1986)] 41 Cal.3d [826,] 833; . . . .)” (People v. Page, supra, at p. 38.)
C. The Analysis
At trial, Limon established nothing more than that witnesses could testify that Sergio wanted to reassert his right to conduct his drug trafficking in his former territory, and accordingly, there was an inference that Ruiz, the drug dealer who had taken over Sergio’s former drug territory, had a motive for the murder. It is settled that such evidence is too speculative to establish potential third-party culpability. Limon failed to provide in his proffer any evidence that raised a reasonable doubt linking Ruiz or any other drug dealer to Sergio’s death. (People v. Sandoval (1992) 4 Cal.4th 155, 176 [evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt; there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime]; People v. Edelbacher (1989) 47 Cal.3d 983, 1017–1018 [that the deceased’s gang or drug associates had merely a possible or potential motive to kill him fails to constitute admissible third-party culpability evidence].)
In Holmes, supra, 547 U.S. 319, the United States Supreme court held that a federal constitutional violation arose from a judicially-established South Carolina rule of evidence that precluded a defendant from introducing third party culpability evidence where there was strong evidence of a defendant’s guilt. (Holmes, supra, 547 U.S. at p. 331.) That court observed, as follows: “The point is that, by evaluating the strength of only one party’s evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt. Because the rule applied by the State Supreme Court in this case did not heed this point, the rule is ‘arbitrary’ in the sense that it does not rationally serve the end that the Gregory rule [(State v. Gregory (1941) 198 S.C. 98)], and other similar third-party guilt rules were designed to further. Nor has the State identified any other legitimate end that the rule serves. It follows that the rule applied in this case by the State Supreme Court violates a criminal defendant’s right to have ‘“a meaningful opportunity to present a complete defense.’” [Citations.]” (Holmes, supra, 547 U.S. at p. 331.)
Limon argues that the trial court in this instance made the same error that the trial court made in Holmes: it rested its decision on exclusion on the strength of the prosecution’s case and failed to consider the strength of the proffered defense evidence.
We disagree. The trial court’s comments demonstrate that it complied with the requirements of the pertinent decisions by determining the relevancy of evidence in light of the evidence as a whole and that it excluded only speculative evidence of third-party culpability. The trial court’s ruling complied with the well-established rule that “[w]hile the Constitution . . . prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues,” or potential to mislead the jury. . . . [T]he Constitution permits judges ‘to exclude evidence that is “repetitive . . ., only marginally relevant” or poses an undue risk of “harassment, prejudice, [or] confusion of the issues.”’ [Citations.]” (Holmes, supra, 547 U.S. at pp. 326–327.)
Limon makes the constitutional claim that he was effectively precluded from cross-examining witnesses to establish that many “people wanted to kill” Sergio, and that he was prevented from introducing evidence demonstrating that someone else, apart from Limon, had killed Sergio or hired Rodriguez to murder him. The complaint that the trial court was unduly restrictive in limiting the introduction of defense evidence is meritless. Because the proffered evidence had so little probative value, the exclusion of this evidence did not amount to a violation of Limon’s state or federal constitutional rights to cross-examine or to present a defense. (See Crane v. Kentucky, supra, 476 U.S. at pp. 690–691; People v. Jenkins (2000) 22 Cal.4th 900, 1014-1015.)
V. Anna ’s Testimony
Limon contends that the trial court improperly failed to exclude part of Anna’s testimony as it was unduly prejudicial pursuant to Evidence Code section 352.
The contention is not persuasive.
A. Background
After jury selection commenced, Sergio’s sister Anna belatedly disclosed to the prosecution that she had an incriminating conversation with Limon in September 2003. Limon filed a written motion to exclude Anna’s testimony about Limon’s statements to her. He argued that Anna’s testimony was inadmissible in part because it failed to constitute an admission and, it was more prejudicial than probative and was cumulative.
Anna had been present with her daughter when Limon made the statements. (The daughter did not testify.) The trial court listened to the tape-recordings of Anna’s and the daughter’s extrajudicial claims about the content of the conversation with Limon. The trial court ruled that some of the statements Limon had made qualified as admissions and that many of his statements were more probative than prejudicial. The prosecutor submitted to the trial court a summary of the specific testimony that she wanted to elicit from Anna. The trial court indicated for the record that it had had an informal discussion with the parties and that it had determined the specific statements by Limon that were to be admitted at trial. Without any further objections, the trial court announced its rulings on the submitted testimony.
The admissible testimony included the following: “[The Prosecutor:] Q. At some point did you say to Rudy, ‘Straight out, did you f------ shoot my brother’? [¶] [Anna:] A. Yes I did. [¶] Q. And how did he respond? [¶] A. He laughed. [¶] Q. Did he say something? [¶] A. Yeah. [¶] Q. What did he say? [¶] A. He said, ‘Why would you think that?’ [¶] Q. Anything else? [¶] A. No.”
B. The Analysis
On appeal, Limon urges that his laughter in response to Anna’s inquiry should have been excluded pursuant to Evidence Code section 352. He asserts that the use of the testimony was unduly prejudicial because the laughter was not an admission, and after that conversation, someone murdered Sergio. He cites this court to the decision in People v. Ross (1979) 92 Cal.App.3d 391 (Ross) and claims that the testimony should have been excluded as it was likely to confuse the jury.
We observe that Limon has failed to provide this court with record references for the contention in his opening brief, and for that reason alone, we may pass his contention without consideration. (Mendoza, supra, 183 Cal.App.3d at p. 398.)
Whether a statement is self-inculpatory or not can be determined only by viewing the statement in context. (Williamson v. United States (1994) 512 U.S. 594, 603.) Evidence Code section 1221 provides, “Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.” As is explained by the court in People v. Preston (1973) 9 Cal.3d 308, “[i]f a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution, and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt.” (Id. at pp. 313–314.)
What Limon said and his conduct after Anna’s accusation was relevant as an adoptive admission. (See People v. Lewis (2008) 43 Cal.4th 415, 498; People v. Davis (2005) 36 Cal.4th 510, 535.) Whether the laughter gave context to Limon’s statements or was itself conduct constituting an adoptive admission, the trial court properly exercised its discretion by admitting the laughter into evidence and permitting the jury to determine its meaning. (Evid. Code, § 1202; see People v. Edelbacher, supra, 47 Cal.3d at p. 1011;)
The decision in Ross fails to assist Limon. In Ross, defendants Ross and Atkins were convicted of murder, robbery, burglary and arson, with a penalty enhancement that the murder was committed by means of torture with an intent to kill. (Ross, supra, 92 Cal.App.3d at p. 397.) The police found the 90-year-old victim lying next to a smoldering bedroom mattress with feet and hands trussed and a knotted cord next to his neck. (Id. at p. 398.) Defendant asserted in defense that codefendant Atkins alone had tortured the victim. Ross did not testify and called in defense Atkins’s roommate, to whom Atkins had confessed guilt without the mention of another’s involvement or participation. (Id. at p. 399.) On rebuttal, pursuant to Evidence Code section 1202, the prosecutor introduced impeachment testimony consisting of two in-custody statements Atkins had made to the authorities admitting guilt, denying complicity in the arson and homicide, and claiming that he did not confess to the roommate. (Ross, supra, at p. 399.) The trial court instructed the jury that the Evidence Code section 1202 testimony was hearsay and limited it to use as impeachment. (Ross, supra, at p. 406.)
On appeal, Ross made various complaints regarding the admissibility of the Evidence Code section 1202 impeachment, including that the evidence was unduly prejudicial. The reviewing court concluded that the evidence was properly admitted at trial. As the impeachment was not admitted for the truth of the matter, there was no constitutional violation. However, it also concluded that the evidence’s probative value was substantially outweighed by its “‘substantial danger of undue prejudice’” and because it was likely to mislead the jury. (Ross, supra, 92 Cal.App.3d at p. 407.) The court reasoned that apart from the policy reasons for excluding the evidence, the prosecutor had compounded the risk the evidence would confuse and mislead the jury because he had urged the jury repeatedly to consider the evidence for the truth of the matter. The reviewing court concluded that the failure to exclude the evidence constituted an abuse of discretion, and the prosecutor’s repeated exhortations to the jury to consider the evidence as proof of guilt constituted misconduct. (Ibid.)
In context, Limon’s reaction and his comments were not likely to confuse or mislead the jury. Nor was Anna’s testimony unduly prejudicial. It was merely damaging to the defense, as is all evidence that tends to incriminate a defendant. (See People v. Kipp, supra, 26 Cal.4th at p. 1121.) Nor is there an analogy to the decision in Ross. The laughter and Limon’s statements after the accusation were admitted for all purposes, not merely for impeachment. (See People v. Garceau (1993) 6 Cal.4th 140, 179–180, overruled on other grounds in People v. Yeoman (2003) 31 Cal.4th 93, 117–118.)
VI. The Detective Blurting Out Information Concerning An Unrelated Shooting
Limon contends that the trial court should have declared a mistrial when Detective Holmes blurted out evidence previously excluded by the trial court: that the detective was investigating Rodriguez for “a couple shootings.”
We also consider this contention as it applies to Rodriguez.
The contention lacks merit.
A. Background
During the investigation of the murder, the police discovered that defendant may have also committed an unrelated July 2003 shooting of a person named Borden. Prior to trial, the trial court had excluded any reference to this unrelated investigation.
During cross-examination, Rodriguez asked Detective Holmes what proof the detective had of Luna’s potential knowledge of Sergio’s murder prior to her initial interview. The detective replied, “Two witness interviews.” Rodriguez asked if the witnesses were Davies and Pena The detective replied, “Yes.” Rodriguez inquired, “And you asked them specifically if they knew if [Luna] was [with]holding information from a McDonald’s murder?” The detective replied, “I don’t know if it was a McDonald’s murder. It was a couple of shootings that you were allegedly involved in.” Rodriguez asked, “You [are] referencing to—to this case, Sergio Reyes?” The prosecutor interrupted Rodriguez and commented, “Your Honor, I’m sorry. Based on prior rulings, we ought to not go there.” Rodriguez objected. The prosecutor then interjected, speaking to Rodriguez: “We can go there. But I don’t think you want to.”
Out of the presence of the jury, Detective Holmes informed the trial court: “So it wasn’t just this McDonald’s shooting. Once we got information that . . . Rodriguez was involved in multiple shootings and possibly another murder, then the case got even that much bigger . . . .” Rodriguez argued that all he had been asking about was whether the detective had received information from Davies or Pena that Luna knew about the McDonald’s murder.
Rodriguez and Limon made motions for a mistrial.
The prosecutor argued to the trial court that the blurting out was nonprejudicial. She said that the detective had merely referred to multiple shootings before she interrupted the proceedings, and that was exactly what they had in this case.
The trial court denied the motions for a mistrial. It instructed the parties to avoid structuring questions that were likely to elicit information about unrelated shootings.
B. The Analysis
On appeal, appellants urge that the detective’s blurting out of that information requires a reversal as it constituted the admission of “[i]inadmissible other [crimes evidence by] the defendant.”
“We review the denial of a motion for mistrial under the deferential abuse of discretion standard. [Citations.]” (People v. Cox, supra, 30 Cal.4th at p. 953.) “‘“Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.”’ [Citations].” (Ibid.)
We examined the relevant portion of the record. This court is persuaded that the reference to an unrelated shooting by Rodriguez was nonprejudicial. Also, no admonition was required to the jury as it would not have been apparent to the jury from the exchange that the detective’s comments inexorably referred to an unrelated shooting. For the same reason, no prejudice flowed from the comments.
The record also fails to support a conclusion that the detective blurted out the information to prejudice Rodriguez with knowledge of the exclusionary order.
Furthermore, Rodriguez cannot complain of error. He asked the question eliciting the very information he now complains of on appeal. (Cf. People v. Sakarias (2000) 22 Cal.4th 596, 643–644.) Appellants cannot complain that the tone of the prosecutor’s objection was prejudicial. The prosecutor was attempting to prevent error, and even assuming that she used a mocking tone to enter her objections, the trial court properly refused to grant a mistrial as the blurting out was nonprejudicial.
VII. Prosecutorial Misconduct
Appellants contend that the prosecutor committed misconduct during her closing comments by (1) vouching for the credibility of prosecution witnesses, (2) calling critical defense witnesses liars (Larsen and Mihaela Fornade-Limon), and (3) suggesting that Rodriguez and Limon’s trial counsel had fabricated a defense.
Specifically, on appeal, Rodriguez and Limon cite the following remarks by the prosecutor as misconduct: (1) the case turned on the credibility of Davies, Luna, and Rodriguez; (2) Rodriguez and his brother Salazar took the witness stand “and lied to” the jury; (3) Rodriguez had lied about stealing the 350Z car, about his storage locker having been burglarized, and about many other points; (4) Barton and Brown had lied in corroborating Rodriguez’s alibi; (5) Luna and Davies “were excellent witnesses,” and “the character and quality of their testimony was very good”; (6) Larsen and Limon’s counsel had put together a partially-fabricated defense to counter Luna’s testimony that she and Rodriguez had driven to the February 2003 meeting in the 350Z; and, (7) Mihaela Fornade-Limon had lied during her testimony.
The contention lacks merit.
A. Background
On April 12 2006, after the prosecutor’s argument and Rodriguez’s final comments to the jury, Limon filed a motion for a mistrial complaining of prosecutorial misconduct.
The following day, Rodriguez filed a motion for a mistrial on similar grounds, and Limon filed a supplemental motion.
Initially, the trial court ruled only as to Limon’s initial April 12, 2006, motion. At the hearing on the motion, Limon’s trial counsel read into the record verbatim a portion of the prosecutor’s argument. In these remarks, the prosecutor had argued that defense investigator Larsen had lied and fabricated a defense to help out Limon. The prosecutor’s remarks also suggested that trial counsel had put his investigator on the witness stand fully aware that Larsen’s investigation was deliberately incomplete and misleading. Trial counsel complained that the remarks impugned him.
The prosecutor replied that the trial court was well aware that she had been upset about Larsen’s testimony. Larsen had implied by her testimony that she had located the only stolen silver 350Z from among the large inventory of such vehicles sold by Universal Nissan in 2003. However, Larsen’s investigation was limited to only discovering whether someone named Efren had purchased a silver 2003 350Z from Universal Nissan and whether that 350Z had been stolen. The prosecutor believed that prior to Larsen’s testimony, trial counsel had misled her during discovery as to the limited nature of Larsen’s search for the 350Z Rodriguez claimed he had stolen. The prosecutor believed that she had been sandbagged.
The trial court agreed that trial counsel should have disclosed Rodriguez’s extrajudicial claim about the stolen 350Z.
Trial counsel protested that he had fully disclosed Larsen’s prospective testimony and claimed to have been unaware of what Rodriguez had told Larsen during a postarrest jail interview. In any event, trial counsel had a “joint defense agreement” with Rodriguez that precluded him from disclosing Rodriguez’s statements.
The trial court denied the motion and commented there was no misconduct.
It then admonished the jury essentially as follows: Whether a witness is credible was an issue for the jury. Counsels’ comments on credibility were not statements of counsels’ personal beliefs, but counsels’ arguments to the jury to persuade the jurors to the parties’ position. Counsels’ personal beliefs were irrelevant to the issues in the case.
Limon’s trial counsel then made his final remarks to the jury, and the prosecutor commented in rebuttal. After final argument was completed, the trial court again admonished the jury that it may have observed what it believed to be an attack on the honesty and integrity of Limon’s trial counsel. It told them that it knew from conversations with counsel that that was not the prosecutor’s intention. It admonished the jury that it was the judge of the credibility of the witnesses. It informed the jury that the attorneys’ arguments were nothing more than an attempt to persuade the jury as to what the evidence showed. It explained: “If the attorneys get a little hotheaded and it [appears they made] a personal attack on each other, you are to disregard that because” such comments are not evidence and should be disregarded in determining the issues in the case.
After the jury was charged and excused for deliberations, the trial court considered the remaining motions for a mistrial.
In his motion for a mistrial, Rodriguez complained that the prosecutor had improperly argued that his alibi witness, Barton, had lied, which suggested a fabricated defense. Also, these remarks were an improper attack on Rodriguez, who was acting as his own counsel.
The trial court noted that it had listened to the final argument. It denied Rodriguez’s motion and Limon’s supplemental motion. It commented that there was no prosecutorial misconduct, and if there was, the trial court’s admonitions had cured any harm done by any arguably improper remarks. As to the prosecutor’s comments about Larsen—“Lynda Larsen either has a very vivid imagination, or she was lying to you to help her client. Probably the latter. You decide,”—the trial court said that the remarks were proper argument based on the evidence. The trial court said that the remarks the prosecutor made about Barton’s alibi testimony were also based on the evidence. With respect to the prosecutor having called Rodriguez a liar, the trial court explained to Rodriguez that a lot of what he had testified to failed to make any sense, and the comments were thus based on the evidence. Any comment implying trial counsel had fabricated a defense was cured by the trial court’s admonitions to the jury.
B. The Relevant Legal Principles
The California Supreme court recently summarized the applicable legal principles in the decision in People v. Gray (2005) 37 Cal.4th 168, 215–216, as follows: “‘“The applicable federal and state standards regarding prosecutorial misconduct are well established. ‘“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.’”’ (People v. Gionis (1995) 9 Cal.4th 1196, 1214 . . .; People v. Espinoza (1992) 3 Cal.4th 806, 820. . . .) 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.’”’”’ (People v. Hill [(1998)] 17 Cal.4th [800,] 819.)”
“To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citation.] In conducting this inquiry, we ‘do not lightly infer’ that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements. [Citation.]” (People v. Frye (1998)18 Cal.4th 894, 970.)
C. The Analysis
“A prosecutor has wide latitude to challenge a defendant’s evidence, and so long as the argument is fair comment on the evidence or a reasonable inference drawn therefrom, it is permissible. ([People v.] Hill, supra, 17 Cal.4th at p. 819.)” (People v. Gray, supra, 37 Cal.4th at p. 216.) “Impermissible vouching occurs ‘where the prosecutor places the prestige of the government behind a witness through personal assurances of the witness’s veracity or suggests that information not presented to the jury supports the witness’s testimony.’ [Citation.] But ‘so long as a prosecutor’s assurances . . . are based on the “facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,” [his] comments cannot be characterized as improper vouching.’ [Citations.]” (People v. Zambrano (2007) 41 Cal.4th 1082, 1167; accord, People v. Boyette (2002) 29 Cal.4th 381, 433.) It is also permissible for a prosecutor to argue a witness is telling the truth based on the circumstances of the case, to call a defendant a “liar” where the evidence supports it, and to argue on inference from the evidence that the defense is fabricated. (Boyette, supra, at p. 433; People v. Pinholster (1992) 1 Cal.4th 865, 948.)
The People argue a forfeiture, but the trial court’s instructions to the parties about how they were to conduct themselves during final argument discouraged contemporaneous objections. Consequently, this court concludes that raising misconduct immediately after closing argument constituted a sufficiently timely objection to any remarks made by the prosecutor during final argument. We note that Limon has failed in briefing to provide this court with accurate record references as to the location in the record of the complained-of remarks.
Here, the prosecutor couched her comments about liars and the credibility of the witnesses in terms of the evidence, and accordingly, there was no improper vouching or name-calling.
With respect to the prosecutor’s comment that Limon’s trial counsel may have known that Larsen’s testimony was likely to leave a false impression with the jury, these comments were isolated and not so aggravated as to constitute misconduct under the federal or state definition of misconduct. Impugning defense counsel’s integrity is misconduct. (People v. Gionis (1995) 9 Cal.4th 1196, 1215.) Nevertheless, the prosecutor here was merely attempting to point out to the jury how Larsen’s investigation was incomplete and unreliable. Also, she was arguing that the defense claim rested entirely on Rodriguez’s assertion that there was only one stolen 350Z, as well as a hearsay claim by Larsen that Rodriguez had told Larsen that a person named “Efren” was owner of the stolen 350Z. Insofar as the prosecutor’s remarks were reasonably likely to have been interpreted by the jury as impugning trial counsel’s integrity, the trial court’s specific admonition on the point dispelled any potential harm that might have flowed from the remarks.
There was no misconduct when the prosecutor commented that Rodriguez was a liar. His trial testimony supports the claim, and he was a trial witness. Accordingly, the prosecutor was entitled to comment on his credibility. Self-representation did not render Rodriguez immune from a prosecutorial claim that he had fabricated a defense as long as the prosecutor’s comments were rooted in the trial evidence.
VIII. Judicial Misconduct
Rodriguez contends that judicial misconduct occurred as the trial court gave the appearance of allying itself with the prosecution and before the jury, it repeatedly admonished Rodriguez, who was in pro.per.
The contention is meritless.
A. Background
1. Dr. Eisen’s Testimony
In defense, Rodriguez called a psychologist, Dr. Michael Eisen, to testify generally on the reliability of eyewitness identification testimony. Dr. Eisen restricted his testimony to a description of the current science in the area of applied memory research. Dr. Eisen explained generally how memory works and what the research disclosed. Dr. Eisen explained to the jury that the research findings on the performance of eyewitnesses can be counterintuitive.
When eliciting Dr. Eisen’s testimony, Rodriguez asked, “Based on your understanding of science in this area, what is the relationship between the witnesses’ confidence and [the] witnesses’ accuracy?” Before Dr. Eisen replied, the trial court inquired about whether the doctor was speaking of science. Dr. Eisen replied that it was “science defined by research that [was] carried out [and] published. . . . The trial court inquired whether this area was considered an “exact science?” The doctor replied, “Are you inferring that this is not science [that] I’m presenting?” The trial court responded, “I don’t know. I was just surprised by your statement that it’s science. I think of science as biology and astronomy. . . .”
At the trial court’s request, Dr. Eisen briefly explained that the methods used for conducting applied memory research. He said that such studies were similar to those conducted in applied biomedical research. The studies involve a statistical comparison of the groups involved to determine, on average, how people behave in certain circumstances. He explained how several specific applied memory studies were conducted and that control factors assure reliability. He said that all science is inexact in some respects. Also, during behavioral studies, there are always subjects who fail to conform to the average.
2. The Repeated Admonitions to Rodriguez
Rodriguez cites the following incidents in support of the contention: (1) the trial court told him, “You need to act like a lawyer and just ask questions”; (2) the trial court said to him, “You’re not getting it. He’s answered the question . . . several times . . . Move on”; (3) the trial court asked him to be quiet several times and on one occasion, told him to “Shush”; (4) the trial court said, “Mr. Rodriguez, it’s very nice that you’re having a conversation with Mr. Kenner [Limon’s trial counsel] while I’m on the record. You were advised not to speak while we were on the record unless I asked to hear from you”; (5) a short time later, the trial court said, “Is there something you don’t understand when I asked you several times and ordered you several times to please be quiet?”; and, (6) the trial court accused Rodriguez of manipulation after he gave a narrative when he was cross-examined by the prosecutor: “Do not give us a narrative. Do not volunteer any information. Do not manipulate the question and your answer. Answer the question directly.”
B. The Relevant Legal Principles
The due process clause of the Fourteenth Amendment requires a fair trial in a fair tribunal before a judge with no actual bias against the defendant or an interest in the outcome of the case. (See Bracy v. Gramley (1997) 520 U.S. 899, 904–905.) Judicial misconduct occurs when a trial judge conducts the proceedings in a manner which strongly suggests to the jury that the judge disbelieves the defendant’s case or otherwise favors the prosecution. (See Liteky v. United States (1994) 510 U.S. 540, 555–556.) To violate a defendant’s right to a fair trial, a trial judge’s intervention in the trial must be significant and must be adverse to the defendant to a substantial degree. (See McBee v. Grant (6th Cir. 1985) 763 F.2d 811, 818; see also Duckett v. Godinez (9th Cir. 1995) 67 F.3d 734, 740.)
In Sturm, our Supreme Court summarized the California standard for judicial misconduct, as follows. “‘The object of a trial is to ascertain the facts and apply thereto the appropriate rules of law, in order that justice within the law shall be truly administered.’ [Citation.] To this end, ‘the court has a duty to see that justice is done and to bring out facts relevant to the jury’s determination.’ [Citation.] The trial court has a statutory duty to control trial proceedings, including the introduction and exclusion of evidence. [Citation.] As provided by section 1044, it is ‘the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.’ However, ‘a judge should be careful not to throw the weight of his judicial position into a case, either for or against the defendant.’ [Citation.]
“Trial judges ‘should be exceedingly discreet in what they say and do in the presence of a jury lest they seem to lean toward or lend their influence to one side or the other.’ [Citation.] A trial court commits misconduct if it ‘“persists in making discourteous and disparaging remarks to a defendant’s counsel and witnesses and utters frequent comment from which the jury may plainly perceive that the testimony of the witnesses is not believed by the judge.”’ [Citations.]” (Sturm, supra, 37 Cal.4th at pp. 1237–1238.)
Also, it is improper for a judge to advise the jury of its own negative views concerning the competence, honesty, or ethics of the attorneys during a trial. When the trial court embarks on a personal attack on an attorney, it is not the lawyer who pays the price, but the client. There is no justification for reprimanding counsel before the jury. (Sturm, supra, 37 Cal.4th at p. 1240.)
A pattern of misconduct is required for a reversal. (People v. Fatone (1985) 165 Cal.App.3d 1164, 1175.)
C. The Analysis
1. The Contention is Forfeited
“As a general rule, judicial misconduct claims are not preserved for appellate review if no objections were made on these grounds at trial. [Citations.] However, a defendant’s failure to object does not preclude review ‘when an objection and an admonition could not cure the prejudice caused by’ such misconduct, or when objecting would be futile. [Citations.]” (Sturm, supra, 37Cal.4th at p. 1237.) Rodriguez’s failure to enter specific objections and to ask for jury admonitions forfeits the contention. There is no evidence that objections would have been futile. A proper admonition would have cured any harm. (See People v. Melton (1988)44 Cal.3d 713, 735.)
2. The Trial Court’s Inquiries of Dr. Eisen
On the merits, Rodriguez complains that the trial court created an impression that it was allied with the prosecution by examining Dr. Eisen and that it had disdain for the psychologist’s views.
Rodriguez acknowledges that pursuant to Evidence Code section 775, a trial court is empowered and has a duty to examine witnesses to fairly aid in eliciting the truth, to prevent jury misunderstanding, to clarify testimony, to cover omissions or give the expert an opportunity to explain, and to elicit facts material to a just determination of the cause. (People v. Cook (2006) 39 Cal.4th 566, 597.) Thus, as long as the questioning is “‘“temperate, nonargumentative, and scrupulously fair,”’” a trial court does not create an impression that it is allying itself with one of the parties. (Ibid.)
During the trial court’s inquiry, the trial court permitted Dr. Eisen to reply to the questions as he wished. The inquiry gave important information to the jury regarding the reliability of the expert testimony. The questions the trial court asked the psychologist were probably the same questions occurring to the jurors as they listened to the testimony. The psychologist explained the differences between a field commonly regarded as pure science, such as biology, and a field of applied behavioral studies, as well as the limits of the reliability of the studies on which he relied. The testimony was helpful to the jury’s understanding of the testimony and thus did not constitute misconduct. Rodriguez was afforded a fair trial.
3. The Trial Court’s Directions to Rodriguez
Rodriguez asserts that by repeatedly chastising him before the jury, the trial court engaged in a pattern of judicial hostility that amounted to misconduct.
We read the trial record. Appellant was representing himself and had no legal education or experience. Despite the repeated efforts by the trial court to outline the rules he was to follow, Rodriguez repeatedly violated the rules of evidence and procedure, as well as the specific limitations placed on the parties by the trial court. By asking Rodriguez to follow appropriate rules, the trial court did not commit misconduct. (People v. Snow (2003) 30 Cal.4th 43, 78 [it is within a trial court’s discretion to rebuke counsel who asks inappropriate questions or engages in improper behavior].)
Furthermore, the trial court had a duty to conserve judicial resources and to avoid permitting Rodriguez to seize control of the trial proceedings. Rodriguez was continually wasting time by requiring the trial court to respond to frivolous and inappropriate motions and by engaging in repetitive or improper questioning and conduct. The trial court’s efforts to keep Rodriguez focused and to obtain his cooperation was not misconduct, nor did it amount to an unconstitutional display of judicial bias. (People v. Snow, supra, 30 Cal.4th at pp. 78–82.)
Moreover, the trial court charged the jury at the commencement of trial that Rodriguez would be representing himself and that it would require Rodriguez to behave within the same perameters as if he were a licensed attorney. It told the jury that it was not to consider that Rodriguez had chosen self-representation in reaching a verdict. In its final charge to the jury, it admonished that the jury was not to misinterpret any harsh admonitions it had made to counsel or to the parties or to consider such admonitions in reaching their verdicts. The trial court’s admonitions cured any harm that otherwise might have flowed from Rodriguez’s acting out during self-representation and the trial court’s efforts to curb his misconduct.
IX. Cumulative Prejudice
Rodriguez contends that the cumulative effect of the alleged errors was prejudicial. Limon joins in the contention.
As indicated above, there was only one error, which was harmless. And that error was forfeited. Thus, there was little, if any error to accumulate. Appellants received a fair trial. (People v. Horning (2004) 34 Cal.4th 871, 913.)
DISPOSITION
The judgments are affirmed.
We concur: BOREN, P. J., DOI TODD, J.