Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05-0711317
Bruiniers, J.
On March 12, 2005, Lemech Nelson was shot and killed in front of J&M Liquors on San Pablo Avenue in San Pablo. An autopsy revealed that he died from multiple gunshot wounds to the torso and back. After two trials resulting in hung juries, Milton Bruce Scott was retried and convicted of the first degree murder (Pen. Code, § 187) of Lemech. At trial, Scott admitted shooting and killing Lemech, but asserted that the killing was either justifiable homicide (defense of self or another) or voluntary manslaughter, based on the alternate theories of imperfect self-defense or heat of passion. On appeal, Scott contends that: (1) the trial court erred in admitting certain rap lyrics he wrote before Lemech’s death; (2) the prosecutor committed misconduct when he argued that Scott laid in wait for Lemech; and (3) the trial court erred in admitting certain hearsay statements of a witness to police. We affirm.
To avoid confusion, and without intending any disrespect, we refer to the victim and members of the Nelson family by their first names.
Scott has also filed a petition for writ of habeas corpus and request for judicial notice (A129675). We deferred the question of whether to issue an order to show cause pending this appeal. By separate order, we deny the habeas petition and grant the request for judicial notice.
I. Factual and Procedural Background
Scott was charged, by information, with the murder (Pen. Code, § 187) of Lemech. The information further alleged that, in the commission of the offense, Scott personally used, and intentionally and personally discharged, a firearm, causing great bodily injury and death (Pen. Code, § 12022.53, subds. (b), (c), (d)). Scott entered a plea of not guilty.
Prosecution’s Case
Physical and Videotape Evidence
When police arrived at the scene, Lemech’s body was found on the sidewalk in front of J&M Liquors. A gold-colored Chevrolet Tahoe, which had been driven by Lemech, was found parked by the curb just south of the entrance to J&M Liquors. The driver’s side door was open. Investigators discovered a bullet hole in the driver’s side rear quarter panel of the car. Blood spatter was found on the car, just below the bullet hole. Blood spatter was also found on the road southwest of the SUV, as well as on the sidewalk near a trash can. Police found.40 caliber shell casings in the area. A videotape, obtained from the liquor store’s surveillance system, included some footage of the shooting and was admitted into evidence.
Ericka Nelson’s Testimony
Lemech’s sister, Ericka Nelson, testified that Lemech worked as a barber. Lemech had a daughter (D.N.) with Kristine Romero. D.N. was around 10 years old in 2005. He also had two younger daughters with Ranetta Ledet. Lemech also dated LaTonya Babb.
At the time of Lemech’s death, Scott lived in an apartment in Pinole with his girlfriend, Romero, their son, M.S., and Lemech’s daughter, D.N.
In 2003 or 2004, Lemech told Ericka that he had impregnated Romero again. Lemech was with Ledet at the time, who was also pregnant. Lemech did not want Romero to have the baby and he did not want Ledet to find out. When Lemech later mentioned that Romero had an abortion, he was “[s]ort of happy, relieved.”
In the summer of 2004, Lemech was shot in the leg. Lemech told his sister: “He was driving over some train tracks, and he was going one direction, a car was coming another direction and shot into the driver’s side door of the car....” Lemech identified Scott as the shooter. After the shooting, Lemech was worried and “wanted to be aware of his surroundings.” At the time of his death, Lemech was living in Michigan, but had returned to California for a visit.
The jury was instructed: “You can consider these statements for the limited purpose of establishing that Lemech... believed that [Scott] was the shooter....”
Marcus Combs’s Testimony
When Marcus Combs was called to testify by the prosecution, he invoked his Fifth Amendment right against self-incrimination and the trial court found him “unavailable.” Thereafter, the prosecutor read into evidence a transcript of Combs’s testimony at Scott’s first trial.
At the first trial, Combs testified that he knew Scott, whom he knew as “B Man” or Bruce, from school. Combs did not remember where he was on March 12, 2005. When asked if he ever went to J&M Liquors in March 2005, Combs responded: “Not to my recollection. It’s a long time ago.” He denied knowing Albert Griego. He also denied ever having told police that he would not testify because of the danger involved. When shown the video from the liquor store and asked if he recognized the two men shown, Combs responded: “I can’t see nothing on there. Two guys.” Combs admitted that he had been arrested the day before he testified at the prior trial and that he had a gun and some marijuana with him at that time. He also admitted having served a prison term for a felony conviction. Combs acknowledged having previously spoken to San Pablo police about the case. However, he denied receiving money in exchange for information and said that he did not have a strong recollection of events at that time.
Pursuant to the parties’ stipulation, a recording of Combs’s 2005 police interview was then played for the jury. A transcript of the interview was provided to assist in understanding and listening to the tape. On the tape, Combs gave police information about both the 2004 shooting of Lemech and the fatal shooting on March 12, 2005. He told police that Scott shot Lemech in the leg in the 2004 incident. He said he was with Scott at the time and described the gun used by Scott in that incident. Combs also stated that he had spoken to Lemech after the shooting. Combs said that Scott’s problem with Lemech stemmed from their dispute over “the woman” “and it was over money... and it—it’s over a lot of stuff.”
With respect to the night that Lemech was killed, Combs told police he was drunk and he, Scott, and “Shorty” were in his mother’s Lexus. They were looking for Patron tequila. Each store that they went to was out of Patron. Eventually, they went to J&M Liquors and parked down the street. Combs remained in the back seat while Scott and “Shorty” went into the store. Combs then saw Lemech pull up, park right in front of the store, and go inside.
Combs told police that “Shorty,” who lived in Hercules, was the other man with Scott on the J&M surveillance video. He said that Shorty’s first name was Albert and that he was unsure of his last name, but that it was a “Mexican name.”
Combs said that, after “Shorty” and Scott left the store and returned to the Lexus, they drove away from the liquor store, went to the next light and made a U-turn. Combs said: “[I] [t]old [Scott] not to do it.... [¶]... [¶] and he said ‘There go that fool’ I said... ‘Be on tape.’ [¶]... [¶] ‘This ain’t the time, or the place. Be mad later.’ [¶]... [¶] He just went off on me. You ain’t with me (speaking gibberish), woo, woo, woo [unintelligible].[] [¶]... [¶] And, Shorty told him, ‘Don’t.’ We said ‘We not gonna have that on our conscious [sic].... Our life goin’ good.’ [¶]... [¶] So we left. So as we leave he jump out the car. And went over there. [¶]... [¶] ‘You got more,’ I told him, ‘You got more to live fo’ than that. He ain’t worth it.’ Flat out. That dude is scared. He was out of town. We both—we everybody know that—why ‘he scared has to go outta town, I mean he don’t want no part. Leave him alone.’ ” After Scott jumped out of the car, “Shorty” and Combs drove off. Before they could get away, they saw Scott shoot Lemech. Combs and “Shorty” drove back to Combs’s house, which was nearby. Scott ran there after the shooting.
The brackets come from the transcript of the audiotape. The jury was instructed: “It’s the tape that’s in evidence. [The transcript] is just to help you. [What is said on the tape is] for you to determine.”
Combs also told police: “[Lemech] knew what was goin’ on. I know he had [a] weapon cause I know how he is. He, I bet he had a (Glock?) cause I know. Ain’t nobody stupid if somebody wanna kill you, you, you grab a weapon.” During the interview, Combs repeatedly asked for compensation for the information he provided. The detectives agreed to pay Combs $1,000.
Linda Nelson’s Testimony
Lemech’s mother, Linda Nelson, also testified that, during the summer of 2004, Lemech had been shot in the leg. Lemech told his mother that he was driving out of Parchester Village, a subdivision in Richmond, when he passed a car coming the opposite direction and shots were fired. Lemech told Linda that Scott shot him. Lemech changed after he was shot. Specifically, Linda testified: “Lemech was a free-spirited person. He would be all over Richmond. Then he got so he wouldn’t go certain places. He didn’t want to go walk the dogs. You know, wherever he was at, he would stay still.” About two weeks after he was shot, Lemech moved to Michigan with Linda’s brother and sister “to get away for a while.” He expressed fear of being in California.
The jury was again instructed that it could only consider this evidence for the purpose of establishing that Lemech believed Scott was the shooter.
Before Lemech was shot, in 2004, Linda learned from D.N. that Romero was pregnant. D.N. said she was going to have a little brother. Linda discussed this with Lemech and he said, “I don’t make boys.” Linda testified that Lemech was not happy that Romero was pregnant. He was involved with Ledet at the time, who was also pregnant. Lemech later told his mother that Romero had an abortion. According to Linda, Lemech was not upset. Lemech never told Linda that he wanted a boy. She believed he was happy with his daughters.
Linda was aware of tension between Lemech and Scott before the 2004 shooting. She remembered an occasion when Romero called her and asked her to give Scott’s phone number to Lemech so they could talk. Linda told Lemech about the call. Lemech said he would not call Scott.
Linda lived about a block and a half away from J&M Liquors. She heard gunshots the night that Lemech was killed. The police came to her home that night and asked if she suspected anyone to have been involved in his death. Linda suspected Scott and directed police to the apartment where he and Romero lived.
Ledet’s Testimony
Ledet testified that she lived with Lemech in 2004 and 2005. They had two daughters. At that time, she owned a Chevrolet Tahoe. In the late spring or summer of 2004, Ledet went to Southern California for about a week. When she returned, she learned that Lemech had been shot in the leg, while driving her car. Lemech told her that “[h]e was going over the tracks to Parchester Village. [Scott] was coming out of the village and he shot at him.” There was a bullet hole in her SUV. After he was shot, Lemech was nervous.
Again, the jury was instructed that it could only consider this evidence for the purpose of establishing that Lemech believed Scott was the shooter.
Lemech moved to Michigan, a few months after he was shot in the leg, because he was afraid and did not want to get hurt. Lemech returned to California, in March, 2005, to attend a birthday party for their daughters. Ledet picked him up at the airport and they stayed at a hotel in Oakland. On the evening of March 12, 2005, Lemech took her Tahoe and did not say where he was going. He did not return.
Babb’s Testimony
Babb testified that she began dating Lemech around the end of 2003 or beginning of 2004. At one point, she and Lemech went to Telegraph Avenue, in Berkeley. Babb left Lemech to go move her car. As she drove, she saw Scott and his cousin, Tashiya Smith. When she returned, Lemech was upset. “He seemed like he was angry.” Lemech told Babb that he and Scott “had just got into it.” Babb explained: “[Lemech] told me that he had spoke to Tashiya and I guess [Scott] got upset, or something, and said something to him. And they kinda got into a confrontation where they were almost going to get physical, but I guess it was police there, or some kind of security or police.... So, it didn’t go any further than that.” Babb testified that Lemech did not have a firearm with him. She did not know Lemech to regularly carry a firearm. He was not involved in any gangs.
Lemech was shot in the leg within months of the incident in Berkeley. After Lemech was shot, he went to Babb’s house and she took him to the hospital. Lemech told Babb that he was driving Ledet’s SUV out of Parchester Village and was driving over some railroad tracks when a car passed and Scott started shooting at him.
Again, the jury was instructed that it could only consider this evidence for the purpose of establishing that Lemech believed Scott was the shooter.
Babb testified that, after the shooting, “[Lemech] was paranoid and... afraid to go places... because he felt like his life was in danger.” Lemech moved to Michigan, telling Babb that “maybe the situation [with Scott] would go away....” Lemech returned for a visit, not long after he left California, during which Babb got pregnant. She had a daughter, who was born in April 2005.
Griego’s Testimony
When Albert Griego was called to testify by the prosecution, he acknowledged that he had been granted immunity for his testimony, but responded, “I can’t answer” or “I won’t answer” to all of the prosecutor’s substantive questions.
Thereafter, the prosecutor read into evidence a transcript of Griego’s testimony at Scott’s first trial. Despite having been granted use immunity and being ordered to answer, Griego had also refused to answer almost all of the prosecutor’s questions at the first trial. However, when asked if he was afraid of something, Griego had responded: “No.” After reading the transcript from the first trial to the jury, the prosecutor continued: “Now we have another piece regarding Mr. Griego. Mr. Griego was interviewed by the police in September at the police station, September 2005. During the questioning, Mr. Griego stated, ‘I could probably get killed for this too.’ He went on to ask, ‘Is this gonna leak because he’s out,’ pointing at Mr. Scott’s picture. ‘Is he gonna know I said something?’ ”
Detective Benone’s Testimony
John Benone, a detective with the San Pablo Police Department, testified that, despite efforts to locate Scott in the days after Lemech’s death, the police were unable to find him. A warrant for Scott’s arrest was obtained on March 14, 2005. Scott was arrested, approximately a year after the shooting, at a relative’s home in Vallejo.
The police also had a difficult time reaching Romero by telephone after Lemech’s death. On March 13, 2005, Benone spoke with Romero. She was reluctant to speak with police. Romero did not identify anyone in photographs taken from the surveillance video at J&M Liquors. She was agitated throughout the interview.
Benone testified that he had listened to the recorded interview of Combs. Benone testified that, during the interview, Combs expressed concern about anyone finding out that he was talking to police. Benone testified that Combs said he was with Scott and Griego at J&M Liquors on March 12, 2005. Combs said that he was close to Scott and that Scott shot Lemech. Benone testified that Combs was paid $1,000 for the information provided to police.
Griego was arrested after the Combs interview, on September 7, 2005. When Griego was arrested, a search warrant was served. A t-shirt and CD linked to a music production company owned by Scott were found in Griego’s car. Clothing similar to that worn by Griego on the liquor store surveillance video was also found. On cross-examination, Benone testified that he had searched an SUV driven by Combs. He found a.40 caliber Smith & Wesson, over half a pound of marijuana, and several thousand dollars in cash.
Paul Graves’s Testimony
In March, 2005, Paul Graves, a deputy district attorney, spoke with Laurence Lichter, who said he was representing Scott. Graves told Lichter that there was an arrest warrant for Scott and that Lichter had an ethical obligation to advise Scott to turn himself in on that warrant.
Defense Case
Joshua Williams’s Testimony
Joshua Williams was Babb’s neighbor. Williams testified that, in the fall of 2004, he smoked marijuana with Lemech in a Chevrolet Tahoe. Williams saw that Lemech had a gun on his lap. Lemech told Williams that he had a problem with “B-Dub,” who Williams knew to be Scott. Williams saw Scott a few days later. Williams told Scott about the conversation and the gun. On cross-examination, Williams admitted that he was arrested and convicted for evading the police in 2008. He was in custody with Scott.
Adel Alamri’s Testimony
Adel Alamri was working the cash register at J&M Liquors on the night of March 12, 2005. Alamri testified that Lemech came into the store and purchased a half pint of Hennessy, a lemon squeeze, and condoms.
A police evidence technician testified that these items were not found in the Tahoe after the shooting. A lemon squeeze was found on the sidewalk near a trash can. Scott’s trial counsel later argued that these items must have been in Lemech’s hands at the time of the shooting.
Lichter’s Testimony
Lichter testified that he met with Scott, after Lemech’s death, and tried to arrange his surrender to police. Lichter testified that he spoke with the deputy district attorney in charge of the case and determined that “the [police] could decide when to contact me about turning [Scott] in.” According to Lichter, the deputy district attorney mentioned a warrant, but did not say whether the warrant had been issued. Scott stayed in touch with Lichter, but the police did not call.
Norma Foster’s Testimony
Scott’s mother, Norma Foster, testified that Scott has a daughter who lives in Las Vegas. In July 2004, Scott’s daughter came to California to visit. Scott asked that she stay with Foster because Lemech had threatened to kill him.
Romero’s Testimony
Romero testified that Scott is the father of her son. Romero and Scott dated for several months in 2000, but maintained separate residences. She also testified that Lemech was the father of her daughter, D.N. Lemech and Romero met in high school. They dated for a year or two before D.N. was born, in 1995. Romero testified that they broke up, in approximately 1998, because Lemech was unfaithful and abusive. Romero testified that she had seen Lemech with a gun on several occasions. She had seen Scott with a gun once.
After they broke up, Lemech continued to visit her residence to see their daughter. On one occasion, Romero and Lemech were sexually involved and Romero again became pregnant. Lemech was not happy when he found out. Shortly after Romero became pregnant with Lemech’s child, she got back together with Scott. Romero testified that she never wanted to reunite with Lemech and that there was no reason for Scott to believe that Lemech was a romantic threat.
Romero carried the fetus for close to five months and learned that it was male. Romero testified that she saw Lemech, after she had an abortion, and that “he asked [her] about the abortion, and [she] told him, yes, [she] did it and it was a boy. [¶] And from that point, he basically just blew up [¶].... [¶] [Lemech] said, ‘Bitch,... you still got the abortion after knowing it was a boy? You know I don’t have any sons.’ ”
Romero kept Scott’s pit bull puppy at her apartment for about a month, shortly after she had the abortion. One day she received a phone call from Lemech, who said: “ ‘Bitch, I got [Scott’s] dog. You need to come get it.’ ” Romero refused and Lemech said: “ ‘Tell [Scott] to come get that dog because if he don’t, I’m gonna shoot [the puppy] in the head.’ ” Romero told Scott about the phone call. This was the first instance of a problem between Lemech and Scott.
Shortly after the puppy incident, Scott asked Romero to call Lemech’s mother and give her his telephone number. Romero called Lemech’s mother and let her know that “[Scott] wanted Lemech to have his telephone number so they can call and discuss the situation that had occurred with the puppy.” Lemech’s mother said that she would give Lemech the number. Romero never heard anything further.
After Scott’s son, M.S., was born in April 2004, Romero, M.S., and D.N. moved into Scott’s apartment in Pinole. Shortly after Lemech was shot in the leg, Lemech called Romero and told her “ ‘you need to keep the kids out of the car with [Scott]’ ” because he was going to shoot up the vehicle. Romero testified that Lemech made other threats to hurt and kill Scott. She told Scott about some, but not all, of these threats. Romero also testified that someone shot at the driver’s side of her car. She believed that Lemech was responsible. When she asked Lemech about it, he told her she was crazy.
Lemech told Romero that he was going to be in California the weekend that he died. Romero did not discuss this with Scott. Romero testified that Scott’s apartment, in Pinole, was approximately 10–15 minutes away from J&M Liquors. Lemech knew the location.
Romero learned of Lemech’s death shortly after the shooting, when a friend who lived near J&M Liquors called and told her. She gathered her children and went to a friend’s house in Vallejo. The police also called Romero. Romero told the police to call back because she was trying to comfort D.N. at the time. Romero did not call the police back the next day. Romero first learned that Scott killed Lemech at the first trial. “Up until that point, [she] believed he didn’t do it.” At the time of her testimony, Romero continued to be in a relationship with Scott.
Scott’s Testimony
Scott testified in his own defense. Scott testified that he did not shoot Lemech in 2004. However, he testified that, on the night of March 12, 2005, “[he] shot and killed Lemech... in self-defense.”
According to Scott, the problem with Lemech began, in approximately 2003, when Lemech took Scott’s dog. Scott testified: “[Romero] told me that Lemech took the dog from her house. The dog and the papers, stating that it was my dog. And... he threatened to shoot the dog in the head. And I could have swore she said when I come get the dog or if I come get it, he’s gonna shoot me too.” When Scott went to get his dog, he pulled over, rolled down his window, and asked “ ‘Can I have my dog back?’ ” Lemech told him “to take it up with the bitch.” Scott again asked for the dog and got the same response. Eventually, Scott stepped out of the car, with his hand on the handle of a gun. Once Lemech saw that Scott had a gun, he threw the dog over the fence to Scott. On his way back to the car, Scott said: “ ‘I’d appreciate it if [Lemech would] keep me out of him and Kristine’s mess. I don’t want no problems.’ ” Scott had a feeling that was not going to be “the end of it,” so he asked Romero to call Lemech’s mom and see if they could talk it out. Scott never got a response.
Within months of the dog incident, Scott saw Lemech in Berkeley. Scott was with his cousin, Tashiya Smith. After Lemech greeted Scott’s cousin, he “turned directly to [Scott] and put his hands in his pants and said, ‘I got my gun now, I should shoot you.’ ” Scott did not see a gun. Lemech then told Scott: “ ‘You lucky your folks are behind you.’ ” Scott noticed that two men in uniform were behind him. Lemech walked away with a smirk on his face.
On another occasion, Scott was working on Romero’s car in the parking lot of his apartment complex. A van drove into the parking lot and drove by Scott, who was bending over the trunk of Romero’s car. Scott heard someone say, “ ‘I could have shot you in the back.’ ” He turned around and saw Lemech. Scott did not see a gun, but “pictured [himself] laying in that trunk shot in the back dead....”
Romero also told Scott that Lemech had threatened to kill him. Scott was afraid. He began parking outside his apartment complex and walking his dog only at night, on back streets. Scott found a bullet hole in the driver’s side of his car and believed Lemech was to blame because he did not have problems with anyone else at the time. He avoided going to stores in San Pablo and a club that Lemech frequented. Scott remembered running into Williams, who told him that “he was smoking with Lemech one time and Lemech had a—what he told me was a Mak 11 submachine gun on his lap and he said it was for me.” Scott felt that his life was in danger. Eventually, Scott learned that Lemech had left the state. After that, friends would call him if they believed Lemech was back in town.
On March 12, 2005, Scott went to Combs’s house in San Pablo, at around 9:00 p.m. Scott later left with Combs and Griego, in Combs’s Lexus. Scott was driving. They intended to buy some Patron tequila. They went to two other liquor stores that did not have Patron before they went to J&M. Scott testified: “[E]ven though I didn’t think he was in town, I just made it a habit not to go to that store.”
Scott and Griego went into the store. Scott was standing at the counter, making his purchase, when a woman walked in and set the buzzer off. Scott turned around and saw Lemech getting out of his truck. Scott immediately turned his head back to the cashier, hoping Lemech had not seen him. Lemech entered the store and said, “ ‘You and your son are dead.’ ” Scott testified that he felt “[f]urious, mad as hell,” and fearful when he heard the threat. Scott believed the threat to be real, even though his son was not with him at the store. He testified: “What made it real for me is how close he was to my house and... to where my son was, the five-minute distance that he can go up there and kill my son.” Although Scott did not see Lemech with a gun, he believed, based on his threats and the fact that people had previously seen him with a gun, that he had access to a gun.
Scott left the store and got back in the driver’s seat of the Lexus. He went nuts. Scott yelled: “ ‘I don’t believe this mother fucker just threatened to kill me and my son.’ ” Combs told Scott, “ ‘It wasn’t that serious.’ ” Scott asked Combs for a gun. Combs gave him a.40 caliber Smith & Wesson and asked him what he was going to do. Scott did not remember Combs saying, “Don’t do it.”
Scott then drove northbound. He made a U-turn at the next light. He intended to go to Combs’s house, which was south of J&M Liquors. Scott was still angry, mad, and fearful. When he passed the liquor store again, Scott saw Lemech’s SUV parked out front, “pointed northbound in the same direction as my apartment, five minutes away....” Scott parked the car across the street, in front of the Bon Fare Market, which was at the corner south of J&M Liquors. Scott testified: “I basically jumped out of the car. It was still moving. I put it in park. But all in one stride, the door was open and I was jogging across the street.” Scott had the gun in his hand as he was running.
While Scott was jogging across the street, Lemech was opening his car door. Scott saw Lemech turn around, look at him, and then reach back into his car. When Lemech turned back towards Scott, Scott began shooting. Because of all the threats Lemech had made, Scott believed that Lemech was reaching for a gun. Scott thought he saw something in Lemech’s hand, but he did not know what it was. After he fired from the middle of the street, Scott continued running across San Pablo Avenue and then chased Lemech behind his car and onto the sidewalk in front of the liquor store. Scott still believed he was in danger. He did not want Lemech to turn around and shoot him with whatever he had in his hands. He could not remember how many shots he fired. Lemech ran around a trash receptacle on the sidewalk. Until he saw Lemech fall to the ground, Scott tried to keep his distance and the trash can in between them. When Scott saw Lemech fall, he ran back across San Pablo Avenue. The Lexus was no longer there, so Scott ran to Combs’s house. Scott gave Combs the gun and left. Scott said that he went to his apartment in Pinole the next day, but left because he feared for his safety. He had heard that Lemech’s friends might retaliate. When asked why he killed Lemech, Scott responded: “I felt it was him or me at the time.” Scott denied that he was threatened by Lemech’s prior involvement with Romero.
On cross-examination, Scott admitted that, at his first trial, he was prepared to present an alibi defense. Scott explained: “[O]ne of [the reasons for arranging an alibi defense] is I wasn’t ready to be responsible for taking the life of D.N.’s father. I wasn’t prepared to tell her that. I wasn’t prepared to tell my mother that I did that.” But, after the Combs’s audiotape was played at the first trial, Scott took the stand, abandoned his alibi defense, and admitted he was the killer.
Scott also admitted he never saw Lemech with a gun. After Lemech was killed, Scott knew there was a warrant out for his arrest. He did not turn himself in, but was arrested almost a year later, in Vallejo. Scott “believed that [the police were] gonna call [Lichter] and... tell him... when they wanted [him] to surrender....”
Verdict and Sentence
The trial court instructed the jury on deliberate and premeditated first degree murder, unpremeditated second degree murder, justifiable homicide (defense of self or another), and on voluntary manslaughter, based on the alternate theories of imperfect self-defense and heat of passion. Scott was convicted of first degree murder. The jury also found the firearm enhancement to be true. Scott was sentenced to state prison for 50 years to life and filed a timely notice of appeal.
II. Discussion
On appeal, Scott contends that: (1) the trial court erred in admitting certain rap lyrics he wrote before Lemech’s death; (2) the prosecutor committed misconduct when he argued that Scott had lain in wait for Lemech; and (3) the trial court erred in admitting Griego’s hearsay statements to police. None of Scott’s arguments has merit.
A. Admission of Rap Lyrics
Scott contends that the trial court abused its discretion by allowing Scott to be questioned, on cross-examination, regarding certain rap lyrics he wrote before Lemech’s death. Scott argues that the trial court should have excluded the lyrics in question because they were irrelevant (Evid. Code, § 350), constituted inadmissible character evidence (Evid. Code, § 1101), or, alternatively, because their probative value was substantially outweighed by the potential for undue prejudice (Evid. Code, § 352).
Unless otherwise noted, all further statutory references are to the Evidence Code. Section 350 provides: “No evidence is admissible except relevant evidence.”
“We review for abuse of discretion a trial court’s rulings on relevance and admission or exclusion of evidence under... sections 1101 and 352.” (People v. Cole (2004) 33 Cal.4th 1158, 1195.)
1. Background
Scott owned his own music production company. Before the jury was selected, Scott filed a motion in limine, which sought to preclude the prosecution “from introducing into evidence and arguing to the jury that [his] music (so-called ‘gangsta rap’)... [was] proof that defendant committed the crime at issue....” Scott argued that “such evidence [is] not relevant (Evid. Code § 210), [is] improper character evidence to prove conduct (Evid. Code § 1101(a), and that any probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time and create a substantial danger of undue prejudice, confus[ion of] the issues, and mislead[ing] the jury (Evid. Code § 352).” However, by the time the motion was argued, Scott and the People had agreed that part of the lyrics to “What We Do” were admissible.
The lyrics to “What We Do,” which was released in 2004, are as follows: “You niggas wrong, man, calling me with death threats, hollering about your baby momma, knowing we just met. Don’t get your chest wet. I can’t believe this nigga claiming Rich-town. Somebody run a set check. Nigga, your best bet to charge it to the game. You don’t want to be my target when I aim over a hoe. You can get with her. She’s just a bitch, nigga. She’ll be back, though that hoe a switch hitter. [¶]... [¶] A young rich killer, big wheeler, bitch stealer, lick hitter, loud mouth niggas here come the lip sealers. [¶]... [¶] Hopping out a Chevy van, hit them with a heavy hand. Niggas don’t listen until I put three in their ass, two in their face, empty the safe, flee with the stash, there will be no trace. All you’ll see is me in a mask, me with my niggas at home base even the cash. [¶]... [¶] One shot, one kill. We saving ammo on these niggas doing it sniper style. Sinister gang man, niggas better put their hard hats back on because we ain’t finished. Moneybags,[] cock that mother fucking M-16 and I’m gonna cover you man, let’s go. Niggas, I’m rich rapping this is Reelmob, two Tommy guns up, I bust, then I switch weapons. You better get to stepping because this Smith & Wesson got two clips and when I finish feeding you, you get seconds.”
Scott testified, on cross-examination, that Combs was involved with his music and that he went by the moniker “Money” or “Moneybags.”
On cross-examination, Scott admitted that he wrote the lyrics in question, but testified that “[t]here’s a difference between entertainment and reality.” Scott conceded that the first portion of the lyrics was relevant to prove premeditation or motive, but he continued to object to admission of the italicized portion above, stating, “that portion of the lyrics... I believe is all about character and not at all... relevant to the incident at hand.”
The People opposed Scott’s motion, arguing the evidence was relevant to counter Scott’s version of events. Specifically, the prosecutor argued: “My response is that here is a guy that celebrates handling disputes in this way. He sings about them. He records them. He uses this type of language, repeatedly.... [¶] And then we come to a situation where he inadvertently runs into someone at a liquor store and he says that that person threatened him, saying, ‘You and your son are dead,’ and it shook him to his very core and he had no alternative other than to catch that person outside the liquor store and shoot him because of the fear that that type of language brought forward. [¶] However, we have a situation here where somebody has been singing about feeding somebody clips, shooting them in the head, going out and partying afterwards, and so on down the line, and it is very unlikely that that type of person would be shaken to the core where he just couldn’t think straight when somebody says, ‘I’m going to kill you,’ when that is what he has been singing about for several years.”
The court agreed with the prosecutor that the entirety of the lyrics were admissible. The court explained its ruling as follows: “I’m going to allow all the lyrics.... [T]he last portion... could potentially undercut the defendant’s self-defense claim. Moreover, it reinforces that he would be likely to shoot someone... who they’re fighting over a woman with. And so I’m going to allow all of that in. I find it is not unduly prejudicial given that the song is coming in, and that its probative value is not substantially outweighed by the prejudicial value.”
2. Analysis
First, we reject Scott’s argument that the italicized lyrics should have been excluded as irrelevant. “ ‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (§ 210.)
Scott points out that “[t]here was absolutely no evidence in this case of [Scott] being in a gang, wearing a mask, emptying a safe, or using an M-16 or Tommy guns. There was no evidence of him shooting anyone in the face or in the ‘ass.’ ” Thus, he asserts that “[t]he lyrics referencing those things... clearly had no relevance or purpose in this case other than to suggest that [Scott] was a cold-blooded killer and a robber....” But, Scott concedes that the details set forth in the nonitalicized portion of the lyrics were highly reminiscent of the evidence regarding Lemech’s and Scott’s interactions before Lemech’s death. One could reasonably infer that Romero was the “baby momma” and “switch hitter” referenced in the lyrics. One could also reasonably infer that the “big wheeler” and “bitch stealer” referenced in the nonitalicized portion of the lyrics was Lemech. The fact that, in the italicized portion, the lyrics discuss shooting and robbing does not diminish the fact that the lyrics of the song, as a whole, show that Scott had thought about and wrote about shooting a man with whom he had a romantic rivalry. We agree with the People that the italicized lyrics “could not reasonably be separated from the first part of the song.” That the shooting did not occur in exactly the same way that Scott had written about, in 2004, does not render the lyrics irrelevant.
We also disagree with Scott’s contention that the lyrics were introduced only to raise an inference that he acted in conformity with a criminal predisposition on the day Lemech was killed. The lyrics, in their entirety, suggest Scott had a motive to kill Lemech before March 12, 2005. In a prosecution for murder, proof of motive is material to a finding of premeditation and deliberation. (People v. Anderson (1968) 70 Cal.2d 15, 27.) The italicized lyrics were therefore admissible under section 1101, subdivision (b). As the prosecution argued, the lyrics were also relevant to counter Scott’s version of events because it is reasonable to infer that a person who uses violent language, like that used in “What We Do,” is less likely to be overwhelmed by fear when told “You and your son are dead.” Under section 1101, subdivision (c), evidence of the lyrics was not barred under section 1101, subdivision (a).
Next, we assess whether the court abused its discretion in admitting the lyrics over Scott’s section 352 objection. “[T]he trial court exercises broad discretion in [assessing whether the probative value of particular evidence is outweighed by undue prejudice]: ‘Where... a discretionary power is inherently or by express statute vested in the trial judge, his or her exercise of that wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’ [Citations.]” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1373 (Olguin).) “The prejudice which exclusion of evidence under... section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. ‘All evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is ‘prejudicial.’ The ‘prejudice’ referred to in... section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues....’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638.)
The prejudicial effect of graphic rap lyrics has been addressed in several published opinions. In People v. Zepeda (2008) 167 Cal.App.4th 25 (Zepeda), the Third District Court of Appeal rejected a contention that the trial court abused its discretion by admitting the defendant’s rap lyrics in a murder and assault case, in which it was alleged that the defendant committed the assaults for the benefit of a criminal street gang. (Id. at pp. 28, 34–35.) The court concluded: “The trial court did not abuse its discretion in determining [the lyrics] were not unduly prejudicial under... section 352.... [¶] The evidence was probative of defendant’s state of mind and criminal intent, as well as his membership in a criminal gang and his loyalty to it. The songs showed that defendant’s gang had the motive and intent to kill Sureños. This evidence... was explicitly relevant to the charges against defendant. [¶]... [¶] The language and substance of the lyrics, although graphic, did not rise to the level of evoking an emotional bias against defendant as an individual apart from what the facts proved.” (Id. at p. 35.)
Similarly, in Olguin, the Fourth District Court of Appeal determined that the trial court properly admitted the defendant’s rap lyrics, over his section 352 objection. (Olguin, supra, 31 Cal.App.4th at pp. 1372–1373.) The court observed: “[The lyrics] demonstrated [the defendant’s] membership in Southside, his loyalty to it, his familiarity with gang culture, and, inferentially, his motive and intent on the day of the killing. [¶]... [¶] This was a crime alleged to be gang related. Gang membership was obviously important, and evidence tending to show it was highly relevant. [Citation.] The mere fact the lyrics might be interpreted as reflective of a generally violent attitude could not be said ‘substantially’ to outweigh their considerable probative value.” (Id. at p. 1373.)
We agree with the Zepeda and Olguin courts that the shock value of violent rap lyrics is unlikely to distract the jury from its legitimate inquiry. The trial court did not abuse its discretion when it concluded that the probative value of the lyrics was not outweighed by the risk of undue prejudice. Furthermore, the admission of the lyrics did not violate Scott’s right to due process under the Fourteenth Amendment to the United States Constitution. (See People v. Falsetta (1999) 21 Cal.4th 903, 913.)
In any event, admission of the italicized lyrics was harmless under any standard. (See Chapman v. California (1967) 386 U.S. 18, 24 (Chapman); People v. Watson (1956) 46 Cal.2d 818, 836.) Scott concedes that the nonitalicized portion of the lyrics were relevant and admissible. He also concedes that these lyrics were graphic in their description of violence. Thus, we fail to see how the additional admission of the italicized lyrics could have altered the outcome of Scott’s trial.
B. Prosecutorial Misconduct
Next, Scott contends that the prosecutor committed misconduct by referring, in his closing argument, to Scott having lain in wait for Lemech. “ ‘ “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.] 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.] As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]” ’ ” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) “[W]e ‘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, disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
1. Background
In his closing argument, the prosecutor said: “Why did the defendant approach Lemech from the north if he says his car was near the other corner... ? [¶] So let’s touch on this. We have bullet casings here (indicating), out in this area, 9 and 10. The bullet casings are discharged from the firearm. We also have the probe. So we know that the bullets were coming from somewhere around in this area (indicating), to hit that car with that probe. But the defendant says that he was parked over here by Bon Fare Market and he ran straight to where Lemech was. So, how did a bullet come from here and hit the car if the defendant was running from here (indicating)?
“Is that a problem? Sure, it’s a problem. Because the defendant wasn’t running from here. The only way we get that bullet hole is there were two shooters. Now, I don’t think we want to go into a conspiracy theory like that, do we? The defendant has already admitted that he’s the one that killed.
“But here’s what the problem is: The defendant came from over here (indicating) and was shooting from this area. And you know why else we know that? Because Lemech ran this way (indicating) and around the car. If the defendant was here (indicating) and when he stepped off the island on his straight line, why would Lemech, when he had the driver’s door open, run toward the defendant, who was shooting at him. That makes no sense at all.
“... If [Scott] was over here, he could see what was happening inside the store. He didn’t come out of the store, go to the car, drive the car, make a U-turn, come down to Bon Fare and then put the car in park and jump out and jog back with the gun out. He was waiting for him over here, watching. And when Lemech came out, and went around, then the defendant pounced. That’s what the physical evidence is.”
The prosecutor continued: “As I said before, it’s not manslaughter because, actually, if you look at the physical evidence, [Scott] was waiting across the street for Lemech to come out of that store. Look at the casings, look at the trajectories, look at the direction Lemech ran. And when you watch that video, look at the clock. Look how long it took. [¶]... He did not come out of that liquor store, get in the car, drive up the block, turn around and then come back. Because it was about — we’ll look at the clock. I wanted to say five, but please don’t hold me to that. A high school runner could have run around that five or six times in the time it took him to drive. He was lying in wait.” (Italics added.)
Later, the prosecutor argued: “Decide the facts first. Quickly arrive at a conclusion that the defendant is the shooter. Then eliminate self-defense because no reasonable person would think that it was self-defense when you’re lying in wait and watching for Lemech to come out of the store. [¶]... [¶] Remember that circumstantial evidence can be better than direct evidence. We went over that in jury selection. And the circumstantial evidence points to laying in wait.” (Italics added.)
Scott’s trial counsel did not immediately object. However, after the jury was instructed and began deliberating, Scott’s trial counsel moved for a mistrial. Scott’s trial counsel explained the basis of his motion: “During the very end portion of [the prosecutor’s] argument he began to make claims or assertions that there was a ‘lying in wait,’ that there was kind of an ambush, that Mr. Scott was standing in the middle of the—I guess you call it the island and that divides and separates the north and southbound lanes of San Pablo [Avenue]. [¶] And there is absolutely no evidentiary basis to make that argument. There’s no good faith basis to make that argument. The evidence that was received by the jury was that of Marcus Combs, who indicated that it took merely a couple of seconds from the time that Mr. Scott alighted from the vehicle to the time the shots were fired. And also, based on Mr. Scott’s own testimony, that it was a straight get out of the car, go straight across the street. [¶] Therefore, there was no good faith basis upon which to make that argument to the jury, period. And I felt that making an objection at that time is—all it does is ring the bell and gives it some importance. And the only admonition by the Court is ordinarily to say the arguments are argument, they’re not evidence and they should just weigh the evidence. So I didn’t want to ring the bell. [¶]... [¶] The lying in wait, if [the prosecutor] had believed it, could have been charged as a special, and he could have proven it up, and he could have gotten his first degree on that. But he waited until the last moments, and I feel as the defense that we were ambushed with that argument. It had not been in any way in contest. It wasn’t in contest last time. [¶]... [¶] So I’m making the motion for mistrial. If it’s not granted,... as a secondary position, I’d ask that [the prosecutor] be admonished on the record for having said it, and that the jury be instructed that the lying in wait is not in evidence and they should disregard any argument to the extent that it dealt with ambush, lying in wait or pausing.”
We will assume, without deciding, that trial counsel’s actions were sufficient to preserve Scott’s current argument.
The trial court said, “my concern is there are no instructions on lying in wait.” The prosecutor responded: “Right. And I’m not asking them for... a finding of lying in wait. I’m looking at that as part of premeditation and deliberation. I’m not looking for any finding on lying in wait. [¶]... [¶] Well, I think it’s probably too late for me to ask for that CALCRIM instruction, so I’m stuck with what I have, which is my argument to support premeditation and the physical evidence which proves it.”
The court denied the motion, stating: “I understand from [the prosecutor’s] point of view that the evidence supports that the defendant was across the street and saw the victim in the car and then rushed over.... I wish he hadn’t used that language because it calls to mind a different instruction which we didn’t give. [¶]... [¶] So I’m not going to admonish [the prosecutor] other than to say, you know, it’d be nice if you’re going to tie something to a legal concept that we have it in an instruction. But I don’t think it’s grounds for a mistrial.” The court also acknowledged that the jury could not have made a connection between the “lying in wait” reference and an instruction it had not been given.
2. Analysis
A prosecutor has wide latitude in closing argument and may draw reasonable inferences from the evidence. (People v. Hill (1998) 17 Cal.4th 800, 819.) “Whether the inferences the prosecutor draws are reasonable is for the jury to decide.” (People v. Dennis (1998) 17 Cal.4th 468, 522.) “The prosecutor, however, may not mislead the jury.” (People v. Daggett (1990) 225 Cal.App.3d 751, 758.) Referring to facts not in evidence is “ ‘clearly... misconduct’ ”... because such statements ‘tend[] to make the prosecutor his own witness—offering unsworn testimony not subject to cross-examination.’ ” (People v. Hill, supra, 17 Cal.4th at pp. 827–828.)
The prosecutor’s characterization was a permissible comment on the evidence. Scott testified that he began shooting as he ran across San Pablo Avenue from the Bon Fare Market, which was south of where Lemech’s SUV was parked. However, bullet casings were found in a location to the north of Lemech’s SUV. Furthermore, the trajectory of the bullet through the SUV and the direction in which Lemech ran suggested that Scott began firing on Lemech from a position somewhere north of the SUV.
The time that passed from when Scott left the liquor store and when the shooting began was also arguably inconsistent with Scott’s version of events. Scott testified that, after exiting the liquor store and returning to the Lexus, he drove northbound and made a U-turn at the next light. When he passed the liquor store again, Scott testified: “I basically jumped out of the car. It was still moving. I put it in park. But all in one stride, the door was open and I was jogging across the street.” However, the surveillance tape from J&M Liquors shows that approximately five minutes passed between the time that Scott and Griego left the store and when Lemech exited the store and was shot.
The prosecutor was entitled to attack Scott’s version of events and explain his theory of premeditation. It was reasonable to infer from the evidence described above that Scott waited outside and began shooting from a position, to the north, where he could see Lemech exit the liquor store. The fact that Scott and Combs described a different version of events is not determinative. The above statements did not exceed the bounds of proper argument. (See People v. Bonillas (1989) 48 Cal.3d 757, 794–795 [prosecutor’s reference to lying in wait during penalty phase argument was proper in case not tried on lying-in-wait theory when “the argument was to the effect that defendant’s behavior—hiding in a closet—was inconsistent with his claim he wanted to escape and that he had strong psychological reasons to be fearful of closets”].)
C. Admission of Griego’s Statements to Police
Finally, Scott argues that Griego’s statements to police were hearsay, not admissible under any exception. We conclude that Griego’s statements to police were introduced in an inadmissible form, but that Scott’s trial counsel did not render ineffective assistance by failing to object.
In his opening brief, Scott also argues in passing that, by admitting Griego’s statements, the trial court violated his right to confront the witnesses against him. It is only in his reply brief that Scott fleshes out the argument, contending that “there was no adequate opportunity in [Scott’s] first trial for [his] trial counsel to fully and meaningfully cross-examine Griego” because “Griego indicated to [Scott’s] trial counsel that he was not going to answer his questions.” We need not address arguments raised only in a reply brief. (Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4; Tilton v. Reclamation Dist. No. 800 (2006) 142 Cal.App.4th 848, 864, fn. 12.)
1. Background
Before trial, Scott moved to preclude the prosecution “from adducing any evidence, directly or indirectly, of any statements by Albert Griego to law enforcement agents of the San Pablo Police Department during an interrogation on September 7, 2005, on the ground that the statement is testimonial in nature and its introduction in evidence would violate defendant’s [constitutional] right of confrontation under the Sixth Amendment of the Constitution of the United States.” The motion was granted and the trial court noted: “[S]tatements by Mr. Griego to law enforcement cannot come in except if [they are] used to impeach Mr. Griego’s anticipated testimony regarding him supposedly not being afraid.” However, when the prosecutor sought to introduce Griego’s statements to police at trial, Scott’s trial counsel argued that Griego’s statements did not qualify under the hearsay exception for inconsistent statements, but did not renew his confrontation clause objection. The trial court ruled that Griego’s statements were admissible as inconsistent statements.
Pursuant to stipulation, the prosecutor read the following to the jury: “Mr. Griego was interviewed by the police in September at the police station, September 2005. During the questioning, Mr. Griego stated, ‘I could probably get killed for this too.’ He went on to ask, ‘Is this gonna leak because he’s out,’ pointing at Mr. Scott’s picture. ‘Is he gonna know I said something?’ ”
2. Analysis
Griego’s statements to police were out-of-court statements admitted for their truth. (§ 1200.) We agree with Scott that Griego’s statements, as read by the prosecutor, did not meet the requirements of any hearsay exception.
Section 1202 does not justify admission of Griego’s statements for their truth. Section 1202 provides, in relevant part: “Evidence of a statement or other conduct by a declarant that is inconsistent with a statement by such declarant received in evidence as hearsay evidence is not inadmissible for the purpose of attacking the credibility of the declarant though he is not given and has not had an opportunity to explain or to deny such inconsistent statement or other conduct.” (Italics added.) Section 1235 also does not apply because Griego’s statements to police were not inconsistent with his testimony at this trial. Section 1235 applies only when the out-of-court statements are inconsistent with a witness’s testimony at the instant trial. (People v. Williams (1976) 16 Cal.3d 663, 667–669; § 145 [“ ‘[t]he hearing’ means the hearing at which a question under this code arises, and not some earlier or later hearing”].) Griego refused to testify at this trial.
Section 1235 provides: “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.” Section 770 provides: “Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: [¶] (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or [¶] (b) The witness has not been excused from giving further testimony in the action.”
The applicability of section 1294 is a more complex question. At the time of Scott’s trial, former section 1294 provided: “(a) The following evidence of prior inconsistent statements of a witness properly admitted in a preliminary hearing or trial of the same criminal matterpursuant to Section 1235 is not made inadmissible by the hearsay rule if the witness is unavailable and former testimony of the witness is admitted pursuant to Section 1291: [¶] (1) A videotaped statement introduced at a preliminary hearing or prior proceeding concerning the same criminal matter. [¶] (2) A transcript, containing the statements, of the preliminary hearing or prior proceeding concerning the same criminal matter. [¶] (b) The party against whom the prior inconsistent statements are offered, at his or her option, may examine or cross-examine any person who testified at the preliminary hearing or prior proceeding as to the prior inconsistent statements of the witness.” (Italics added.) Scott is correct that section 1294 is technically not applicable in this instance because “[t]he evidence of the purportedly inconsistent statements [presented by the prosecutor] was neither a video recording nor a transcript....”
But, Scott’s trial counsel did not object on this ground. In fact, after the trial court found the statements admissible as inconsistent statements, Scott’s counsel stipulated that Griego’s statements to police could be read by the prosecutor. The general rule is that issues relating to the admissibility of evidence will not be reviewed on appeal “in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal.” (People v. Rogers (1978) 21 Cal.3d 542, 548 [“[t]he contrary rule would deprive the People of the opportunity to cure the defect at trial”].) Nonetheless, we consider the issue on the merits because Scott argues that his trial counsel was ineffective to the extent he failed to preserve the objection.
Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the effective assistance of counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) This right “entitles [the defendant] to ‘the reasonably competent assistance of an attorney acting as [the defendant’s] diligent conscientious advocate.’ [Citation.]” (Ibid.) To establish ineffective assistance of counsel, a defendant must show: (1) that counsel’s performance was so deficient that it fell below an objective standard of reasonableness, under prevailing professional norms and (2) that the deficient performance was prejudicial, rendering the results of the trial unreliable or fundamentally unfair. (Strickland v. Washington (1984) 466 U.S. 668, 688, 692; People v. Ledesma, supra, 43 Cal.3d at pp. 216–217.)
“Where ‘there was no sound legal basis for objection, counsel’s failure to object to the admission of the evidence cannot establish ineffective assistance.’ [Citation.] And, even when there was a basis for objection, ‘ “[w]hether to object to inadmissible evidence is a tactical decision; because trial counsel’s tactical decisions are accorded substantial deference [citations], failure to object seldom establishes counsel’s incompetence.” [Citation.] “In order to prevail on [an ineffective assistance of counsel] claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission.” ’ ” (People v. Majors (1998) 18 Cal.4th 385, 403.)
Scott’s trial counsel did not render ineffective assistance by failing to object on the grounds Griego’s statements were not presented via “videotaped statement” or “transcript,” as required by former section 1294. If Scott’s trial counsel had pressed the objection, Griego’s statements to police could have nonetheless come in, pursuant to section 1294, subdivision (a)(2), through the admission of a transcript of Benone’s testimony at the first trial. Benone testified at the first trial that Griego told him he “could get killed for talking.” Benone also testified that Griego said “he is out,” while referring to Scott.
It is undisputed that Griego was unavailable at the third trial and that his testimony from the first trial was properly admitted pursuant to section 1291. (See People v. Francis (1988) 200 Cal.App.3d 579, 587 [“a witness who is physically available yet refuses to testify, after the court has used all available avenues to coerce such testimony, is unavailable”].) Griego’s statements to police, as testified to by Benone, were clearly inconsistent with his denial, at the first trial, that he was afraid. Finally, Benone’s testimony regarding Griego’s prior inconsistent statements was properly admitted in evidence, at the first trial, pursuant to section 1235.
Section 1291, subdivision (a)(2), provides: “Evidence of former testimony is not made 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.”
To summarize, section 1294, subdivision (a)(2), would have allowed for admission of Griego’s prior statements to police—through the introduction of a transcript of Benone’s testimony at the first trial. Benone’s testimony at the first trial was substantially similar to the prosecutor’s recitation of Griego’s statements. Had Scott’s trial counsel objected and a transcript of Benone’s testimony from the first trial been admitted, the jury would still have learned of Griego’s statements to police. Thus, it is plausible that Scott’s trial counsel had a tactical reason for stipulating that the prosecutor read Griego’s prior statements to the jury. Trial counsel may well have determined that admission of a transcript of Benone’s testimony would have highlighted Griego’s statements in a way that the prosecutor’s brief statement would not. We cannot say on this record that the strategy chosen by Scott’s trial counsel was one that competent counsel would not elect. Scott’s ineffective assistance claim fails.
In his reply brief, Scott argues, for the first time: “To be admissible under... section 1294... either the transcript of Griego’s statements to the police or a recording of them would have had to have been introduced as evidence at [Scott’s] first trial, i.e., the trial where Griego testified. (See People v. Martinez (2003) 113 Cal.App.4th 400, 409 [Martinez].)” We need not consider this argument. (See Julian v. Hartford Underwriters Ins. Co., supra, 35 Cal.4th at p. 761, fn. 4; Tilton v. Reclamation Dist. No. 800, supra, 142 Cal.App.4th at p. 864, fn. 12.)
III. Disposition
The judgment is affirmed.
We concur: Simons, Acting P. J., Needham, J.
Section 1101 provides: “(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act. [¶] (c) Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness.”
Section 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
In any event, we would reject Scott’s contention if it was properly before us. In Martinez, the Fourth District stated: “[S]ection 1294 appears to have been designed to overcome the admissibility problems associated with out-of-court statements which are inconsistent with an unavailable witness’s former testimony by requiring that the recorded statement be introduced at the prior hearing where the witness actually testified. It is well settled that the inherent unreliability typically associated with such out-of-court statements may be deemed nonexistent when the defendant has had an opportunity to question the declarant about the statements. [Citation.] [¶] But, to be admissible at trial under... section 1294, the recording of [a witness’s] statement first should havebeen introduced into evidence at the preliminary hearing. (... § 1294, subd. (a)(1).) It was not.... [The detective], who questioned [the witness], also testified at the preliminary hearing that [the witness] had made the statements he denied making. But neither the transcript nor a recording of the interview was introduced as evidence at the preliminary hearing. Thus, while the transcript of [the witness’s] preliminary hearing testimony was properly admitted at trial due to his unavailability (... § 1291), the court erred in allowing the jury to hear the actual recording of his statement to the police.” (Martinez, supra, 113 Cal.App.4th at p. 409, italics added.)
To the extent the Martinez court suggested that section 1294 requires a recording or a transcript of the recording to be introduced at the “preliminary hearing or prior proceeding,” we respectfully disagree. The plain language of section 1294, subdivision (a)(2), allows for the introduction of “[a] transcript, containing the statements, of the preliminary hearing or prior proceeding concerning the same criminal matter.” The statute does not limit the way in which the prior inconsistent statements are admitted at the preliminary hearing or prior proceeding.